[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Notices]
[Pages 41741-41742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15425]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 150-00004, General License /10 CFR 150.20, EA-01-271]


Decisive Testing, Inc., San Diego, California; Order Imposing 
Civil Monetary Penalty

I

    Decisive Testing, Inc. (Licensee) is the holder of California 
Radioactive Material License No. 1836-37, which authorizes the Licensee 
to use sealed sources containing byproduct material to conduct 
industrial radiography. California is an Agreement State as defined by 
10 CFR 150.3(b) of the NRC's regulations. Pursuant to 10 CFR 150.20 of 
the NRC's regulations, the Licensee is granted a general license to 
conduct the same activity in areas of exclusive Federal jurisdiction 
provided the requirements of 10 CFR 150.20(b) have been met.

II

    An inspection and an investigation of the Licensee's activities 
were completed in September 2001. The results of the inspection and the 
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 February 27, 2002. The Notice 
stated the nature of the violation, the provisions of the NRC's 
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 March 21, 
2002. In its response, the Licensee admitted the violation, but 
requested that discretion be exercised and that no civil penalty be 
assessed.

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 $6,000 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 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 
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 this 11th day of June 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 February 27, 2002, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued for a violation 
identified during an NRC inspection and investigation. Decisive 
Testing, Inc. (DTI or Licensee) responded to the Notice on March 21, 
2002. The Licensee admitted the violation, but requested that 
discretion be exercised and no civil penalty assessed. The NRC's 
evaluation and conclusion regarding the licensee's response are as 
follows:

Summary of Licensee's Request for Mitigation

    DTI admitted the violation, but requested that discretion be 
exercised and that no civil penalty be assessed. DTI based this 
request on its statement that there was no threat to public health, 
that the situation was corrected before the NRC became involved, and 
that management had no reason to suspect that a responsible employee 
would schedule covered work without first making certain the 
reciprocity form was filed and the fee paid. DTI suggested that a 
violation such as this with a very low safety significance might 
best be addressed by a letter of reprimand. DTI also stated that the 
violation does not fit neatly into Table 1A of the NRC Enforcement 
Policy, arguing that Decisive Testing is not the equivalent of the 
other facilities listed in the same category, and that

[[Page 41742]]

this type of violation is not listed in the examples of violations 
included in the supplements to NRC's Enforcement Policy. DTI stated 
that the penalty appeared to be more severe than was intended by the 
authors of the regulation. DTI also questioned the characterization 
of the violation as having occurred on at least six occasions, 
because this may be viewed as implying the suspicion of additional 
violations.

NRC Evaluation of Licensee's Request for Mitigation

    The NRC agrees that the violation, in and of itself, posed no 
threat to public health and safety. It is an administrative 
violation, but one on which NRC has intentionally placed some 
importance. The NRC considers this type of violation important 
because without proper notification, the NRC cannot conduct 
inspections of Agreement State licensees to assure that such 
licensees are conducting their activities safely and in accordance 
with NRC requirements.
    With regard to DTI's statement that management had no reason to 
suspect that a responsible employee would schedule covered work 
without first making certain the reciprocity form was filed and the 
fee paid, the NRC notes its Enforcement Policy holds licensees 
accountable for the actions, or omissions, of their employees. It is 
incumbent on employers to assure that their employees are abiding by 
NRC requirements in the conduct of NRC-licensed activities.
    With regard to DTI's several statements regarding the treatment 
of this violation within the NRC's Enforcement Policy, the NRC 
assures DTI that the violation was properly classified at Severity 
Level III, and that a specific example of this violation is 
contained in Supplement VI of the policy. Supplement VI, example 
C.7, states, ``A failure to submit an NRC Form 241 as required by 10 
CFR 150.20.'' In addition, DTI was properly classified as an 
industrial radiography licensee in Table 1A of the Enforcement 
Policy.
    For the reasons discussed above, the NRC has intentionally 
placed importance on this type of violation. In this particular 
case, the violation was more significant because it was committed 
willfully. NRC's investigation identified six examples of this 
violation, and each of the six examples was cited in the violation 
because each involved a separate opportunity for DTI's assistant 
radiation safety officer to comply with NRC's requirements and file 
the necessary form. However, for the purpose of the civil penalty, 
the six examples were treated as one violation and assessed one 
civil penalty.
    Thus, the NRC concludes that the violation and civil penalty 
were correctly assessed and were in accordance with the NRC's 
Enforcement Policy.

NRC Conclusion

    The NRC concludes that DTI has not provided a sufficient basis 
for mitigation of the proposed civil penalty. Consequently, the 
proposed civil penalty in the amount of $6,000 should be imposed by 
Order.

[FR Doc. 02-15425 Filed 6-18-02; 8:45 am]
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