[Federal Register Volume 67, Number 92 (Monday, May 13, 2002)]
[Notices]
[Pages 32068-32069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11872]



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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-19135; License No. 29-19707-01; EA No. 01-314]


In the Matter of Trap Rock Industries, Kingston, New Jersey; 
Order Imposing a Civil Monetary Penalty

I

    Trap Rock Industries (Licensee) is the holder of Byproduct 
Materials License No. 29-19707-01 (License) issued by the Nuclear 
Regulatory Commission (NRC or Commission) on July 24, 1991. The License 
was most recently renewed by the Commission on September 22, 1994. The 
License authorizes the Licensee to possess and use certain byproduct 
materials in accordance with the conditions specified therein at their 
facility in Kingston, New Jersey and at various temporary job sites.

II

    An inspection of the Licensee's activities was conducted on 
December 6, 2001, at the Licensee's facility located in Kingston, New 
Jersey. 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 February 27, 
2002. 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 one of the violations.
    The Licensee responded to the Notice in a letter, dated March 26, 
2002. In its response, the Licensee does not deny that the violations 
occurred as stated in the Notice, but requests withdrawal of the 
penalty.

III

    After consideration of the Licensee's response and the statements 
of fact, explanation, and argument contained therein, the NRC staff has 
determined, as set forth in the Appendix to this Order, that an 
adequate basis was not provided for withdrawal of the penalty and that 
a penalty of $3,000 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 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 addressed 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 Associate General Counsel for Hearings, Enforcement & 
Administration at the same address, and to the Regional Administrator, 
NRC Region I, 475 Allendale Road, King of Prussia, PA 19406.
    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 violations admitted by the Licensee, 
this Order should be sustained.

    Dated at Rockville, Maryland, this 30th day of April, 2002.

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

Appendix

Evaluations and Conclusion

    On February 27, 2002, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for two violations 
identified during a NRC inspection conducted at the Licensee's 
facility located in Kingston, New Jersey, as well as temporary job 
sites in Ewing, New Jersey. The penalty was issued for one 
violation. The Licensee responded to the Notice in a letter, dated 
March 26, 2002. While in its response, the Licensee does not deny 
that the violations occurred as stated in the Notice, the Licensee 
does request withdrawal of the civil penalty. The NRC's evaluation 
and conclusion regarding the Licensee's request is as follows:

1. Restatement of Violation Assessed a Civil Penalty

    10 CFR 20.1801 requires that the Licensee secure from 
unauthorized removal or access licensed materials that are stored in 
controlled or unrestricted areas. 10 CFR 20.1802 requires that the 
Licensee 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; and 
unrestricted area means an area, access to which is neither limited 
nor controlled by the Licensee.
    Contrary to the above, on October 24, 2001, the Licensee did not 
secure from unauthorized removal or limit access to a Troxler Model 
4640-B density gauge (containing one 8-millicurie cesium-137 source) 
located at a temporary job site on Route 31 in Ewing, New Jersey, 
which is an unrestricted area, nor did the Licensee control and 
maintain constant surveillance of this licensed material.

2. Summary of Licensee's Request for Withdrawal of the Civil 
Penalty

    The Licensee, in its response, requests that the civil penalty 
be withdrawn. In support of this request, the Licensee contends that 
(1) the violation should be considered minor; and (2) extenuating 
circumstances exist that should eliminate the need for a civil 
penalty.
    With respect to the significance of the violation, the Licensee 
indicates that there was no actual safety significance to the 
violation; the potential consequences were de minimus; the loss of 
the gauge did not impact the NRC's ability to perform its regulatory 
functions; and the loss of the gauge was not willful. The Licensee 
also states that using the standards set forth in the enforcement 
policy for assigning severity, the violation, ``at best,'' should be 
classified at Severity Level III. However, the Licensee also argues 
that using the guidance set forth in Section E of Supplement IV of 
the enforcement policy, the violation could be considered minor 
because the amount of radioactivity that could be given off by this 
8 millicurie cesium-137 gauge was approximately that of an x-ray.
    With respect to the extenuating circumstances, the Licensee 
argues that the penalty should be withdrawn because the gauge 
contained minuscule quantities of material, was clearly and properly 
labeled, and was lost due to a criminal act of an unknown third 
party; upon discovery that the gauge was missing, the Licensee 
immediately notified the NRC of the theft and attempted to find the 
stolen gauge; the Licensee disciplined the employee who left the 
gauge unattended, and also took

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corrective actions that included re-instructing and re-training its 
employees; and the Licensee has had no prior violations of NRC 
regulations.
    The Licensee also argues that none of the rationales set forth 
in the enforcement policy for issuing a penalty are applicable in 
this case. Specifically, the Licensee indicates that the penalty 
will not encourage prompt identification and prompt corrective 
action because the Licensee had already identified and corrected the 
violations. The Licensee also states that the penalty will not deter 
future violations because the theft of the radioactive device was 
the result of a criminal act by a third party. Finally, the Licensee 
maintains that the penalty will not focus the Licensee's attention 
on significant violations because the Licensee believes that the 
violation was insignificant.

3. NRC Evaluation of Licensee's Request for Withdrawal of the Civil 
Penalty

    Notwithstanding the Licensee's contentions regarding the 
significance of the violation, the NRC maintains that the violation 
was appropriately classified at Severity Level III, consistent with 
the NRC enforcement policy. Since the gauge contained less than 1000 
times the quantity of cesium-137 set forth in 10 CFR Part 20, 
Appendix C (the gauge contained approximately 800 times that 
quantity), the failure to secure the gauge and maintain surveillance 
over it might have been classified at Severity Level IV, in 
accordance with Section C.11 of Supplement IV of the enforcement 
policy, had the gauge not been stolen. However, since the failure to 
secure or maintain constant surveillance over the gauge, resulted in 
the gauge being stolen and radioactive material entering the public 
domain and being handled by members of the public, the violation is 
more appropriately classified at Severity Level III. Such violations 
are considered significant since, although the source is normally 
shielded within the gauge, significant radiation exposures could 
occur if the source becomes unshielded while in the public domain.
    The NRC agrees that the gauge was properly labeled, the Licensee 
took appropriate actions once it discovered that the gauge was 
missing, the violation was not willful, and the Licensee's prior 
enforcement history has been good. As a result, consistent with the 
NRC enforcement policy, a civil penalty would not normally be 
warranted for a Severity Level III violation, as the NRC indicated 
in its February 27, 2002 letter transmitting the civil penalty. 
However, although the outcome of the normal civil penalty process in 
this case would not result in a civil penalty, a civil penalty is 
warranted, in accordance with Section VII.A.1.g of the enforcement 
policy since the case involved a loss/improper disposal of a sealed 
source. The Commission included Section VII.A.1.g. in the policy 
since it believes that normally issuance of a civil penalty is 
appropriate for cases involving of loss of a sealed source or 
device. This is necessary to properly reflect the significance of 
such violations.
    Although the loss of the gauge was due to the criminal act of a 
third party, the Licensee is responsible for that occurrence since 
the gauge user left the gauge unattended and unsecured, which 
directly contributed to the theft. Accordingly, issuance of the 
violation, categorization of the violation at Severity Level III, 
and imposition of the related civil penalty, is appropriate in this 
case, and consistent with the NRC enforcement policy.

4. NRC Conclusion

    The NRC has concluded that the Licensee did not provide an 
adequate basis for withdrawal of the civil penalty. Accordingly, the 
proposed civil penalty in the amount of $3,000 should be imposed.
[FR Doc. 02-11872 Filed 5-10-02; 8:45 am]
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