[Federal Register Volume 64, Number 191 (Monday, October 4, 1999)]
[Notices]
[Pages 53755-53757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25718]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-14016; License No. 21-18668-01; EAs 99-097 & 99-169]
Testing Engineers & Consultants, Inc.; Troy, Michigan; Order
Imposing Civil Monetary Penalty
I
Testing Engineers & Consultants, Inc. (Licensee) is the holder of
Byproduct Materials License No. 21-18668-01 which was last renewed in
its entirety by the Nuclear Regulatory Commission (NRC or Commission)
on September 17, 1996. The license authorizes the Licensee to use
certain byproduct material in accordance with the conditions specified
therein.
II
Between July 28, 1998 and March 23, 1999, an inspection and an
investigation of the Licensee's activities were conducted. 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
Penalties (Notice) was served upon the Licensee by letter dated July 8,
1999. 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 penalties proposed for the violations.
The Licensee responded to the Notice in letters dated August 4 and
13, 1999. In its responses, the Licensee agreed with the information
presented in the Notice, admitted the violations, but requested
mitigation or remission of the civil penalties.
III
After consideration of the Licensee's response 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 violations occurred as stated and that
[[Page 53756]]
the penalties proposed for the violations 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 civil penalties in the amount of $5,500 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 Hearings and Enforcement at the
same address, and to the Regional Administrator, NRC Region III, 801
Warrenville Road, Lisle, Illinois 60532.
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 violations admitted by the Licensee,
this Order should be sustained.
Dated this 24th day of September, 1999.
For the Nuclear Regulatory Commission.
R. W. Borchardt,
Director, Office of Enforcement.
Appendix: Evaluations and Conclusion
On July 8, 1999, a Notice of Violation and Proposed Imposition
of Civil Penalty (Notice) was issued for violations identified
during an NRC inspection and an investigation. Testing Engineers &
Consultants, Inc. (Licensee or TEC) responded to the Notice by two
letters dated August 4 and 13, 1999. The Licensee admitted the
violations occurred, but requested mitigation or remission of the
civil penalties. The NRC's evaluation and conclusion regarding the
licensee's requests are as follows:
Summary of Licensee's Request for Remission or Mitigation
The Licensee states that no escalated enforcement has occurred
since September 1995 and that its overall performance of licensed
activities has been good. The Licensee contends that compliance with
license requirements as well as prompt identification and
comprehensive corrective action of violations has always been
emphasized and encouraged. The Licensee states that it understands
the severity of the violations and will make every effort to regain
the trust and confidence of the NRC by ensuring that it acts with
integrity and abides by requirements designed to protect public
health and safety.
The Licensee maintains that every effort is made to educate its
employees to implement all of the terms and conditions of its NRC
license. According to the Licensee, the employee involved had been
properly trained and instructed and there was little else that could
have been done to prevent this incident from occurring. The Licensee
suggested that the NRC should fine the individual as well as the
company.
NRC Evaluation of Licensee's Request for Remission or Mitigation
The NRC concurs with the Licensee regarding its enforcement
history and overall good performance. Enforcement history and
licensee performance are used in determining which enforcement
action will be taken. In accordance with Section VI.B.2. of the
``General Statement of Policy and Procedures for NRC Enforcement
Actions'' (Enforcement Policy), NUREG 1600, Revision 1, enforcement
history is considered in two of the four decisional points in the
civil penalty assessment process. Specifically, when the NRC
determines that a non-willful Severity Level III violation has
occurred, and the licensee has not had any previous escalated
actions during the past 2 years or 2 inspections, whichever is
longer, the NRC considers whether the licensee's corrective action
for the violation is reasonably prompt and comprehensive. If a
willful Severity Level III violation has occurred--or if, during the
past 2 years or 2 inspections, the licensee has been issued at least
one other escalated action--the civil penalty assessment normally
considers the factor of identification in addition to corrective
action. As to the second decisional point, the NRC may exercise
discretion by either escalating or mitigating a sanction based, in
part, on the enforcement history. For example, the NRC may either
propose a civil penalty where application of the factors would
otherwise result in zero penalty or escalate the amount of the
resulting civil penalty in cases involving particularly poor
licensee performance, or involving willfulness. On the other hand,
the NRC may exercise discretion and refrain from issuing a civil
penalty in cases where the overall sustained performance of the
licensee has been good.
In this case, the Licensee's enforcement history is irrelevant
with regard to the first decisional point because the violations
were willful. As to the second decisional point, the NRC considered
the Licensee's enforcement history and determined that, on balance,
neither escalation nor mitigation was warranted because, while the
Licensee's enforcement history has been good, the violations
involved willfulness. Willful violations are of particular concern
because the Commission's regulatory program is based on licensees
acting with integrity and communicating with candor.
With regard to the assessment factors, both noncompliances were
characterized as willful Severity Level III violations and,
consistent with Section VI.B.2. of the Enforcement Policy, the NRC
considered both identification and corrective action. In this case,
the NRC concluded that credit was not warranted for identification
because NRC staff identified the violations, but credit was
warranted for corrective action based on the promptness and
comprehensiveness of the actions taken. Consideration of the
identification and corrective action factors yielded a base civil
penalty of $2,750 for each of the violations described in the
Notice.
As to the Licensee's argument about its efforts to educate
employees and to prevent the incident, according to Section VI.B of
the Enforcement Policy, management involvement, direct or indirect,
in a violation may lead to an increase in the civil penalty;
however, the lack of management involvement in a violation may not
be used to mitigate a civil penalty. The Licensee is responsible for
violations caused by its employees, whether arising from inadvertent
error or willful acts. The licensee hires, trains, and supervises
its employees. All licensed activities are carried out by employees
of the licensee and, therefore, all violations are caused by
employees of the licensee. A licensee enjoys the benefits of good
employee performance and suffers the consequences of poor employee
performance. To not hold the licensee responsible for the actions of
its employees, whether such actions result from incompetence,
negligence, or willfulness, is equivalent to not holding the
licensee responsible for its use and possession of licensed
material. If the NRC were to adopt such a premise, there would be no
incentive for licensees to assure compliance with NRC requirements.
With respect to the licensee's suggestion about fining the
individual as well as the company, the NRC notes that while it is
not the Commission's general policy to monetarily penalize
individuals, the NRC takes enforcement sanctions against
individuals. Notices of Violation and Orders
[[Page 53757]]
are examples of enforcement actions that may be appropriate against
individuals. The Notice of Violation issued to the Licensee's
employee was deemed the appropriate action in this case.
NRC Conclusion
The NRC has concluded that the Licensee did not provide an
adequate basis for remission or mitigation of the civil penalties.
Consequently, the proposed civil penalty in the amount of $5,500
should be imposed.
[FR Doc. 99-25718 Filed 10-1-99; 8:45 am]
BILLING CODE 7590-01-P
