[Federal Register Volume 61, Number 28 (Friday, February 9, 1996)]
[Notices]
[Pages 5038-5040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2838]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-32380, License No. 29-28659-01 EA 95-163]
Canspec Materials Testing, Inc., Middlesex, NJ; Order Imposing
Civil Monetary Penalty
I
Canspec Materials Testing, Inc. (Licensee) is the holder of
byproduct Materials License No. 29-28659-01 issued by the Nuclear
Regulatory Commission (NRC or Commission) on August 12, 1991. The
license authorizes the Licensee to possess and use byproduct material
for industrial radiography and replacement of sources in accordance
with the conditions specified therein.
II
An inspection of the Licensee's activities was conducted on July 19
and 25, 1995. 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
September 13, 1995. 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 the violations.
The Licensee responded to the Notice in two letters, both dated
October 11, 1995. In its responses, the Licensee admitted Violations A
through D and F through H; denied Violation E; and requested that the
proposed civil penalty be reduced if not dismissed.
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 the penalty
proposed for the violations designated in the Notice should be imposed.
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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 $5,000 within 30
days of the date of this Order, by check, draft, money order, or
electronic transfer, payable to the Treasurer of the United States and
mailed to Mr. James Lieberman, 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, D.C. 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 Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, D.C. 20555, with a copy to
the Commission's Document Control Desk, Washington, D.C. 20555. Copies
also shall be sent to the Assistant General Counsel for Hearings and
Enforcement at the same address and to the Regional Administrator, NRC
Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406-1415.
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 Violation E of the Notice referenced in
Section II above; and
(b) whether, on the basis of such violation, and the additional
violations set forth in the Notice that the Licensee admitted, this
Order should be sustained.
For The Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Dated at Rockville, Maryland, this 2nd day of February 1996.
Appendix--Evaluations and Conclusion
On September 13, 1995, a Notice of Violation and Proposed
Imposition of Civil Penalty (Notice) was issued for violations
identified during an NRC inspection. Canspec Materials Testing, Inc.
(Licensee or CTI) responded to the Notice on October 11, 1995. The
Licensee admitted seven violations (Violations A-D and F-H), denied
one violation (Violation E) and requested mitigation or dismissal of
the civil penalty. The NRC's evaluation and conclusion regarding the
licensee's requests are as follows:
1. Restatement of Violation E
10 CFR 34.24 requires, in part, that each survey instrument used
to conduct physical radiation surveys be calibrated at intervals not
to exceed three months and after each instrument servicing.
Contrary to the above,
1. on June 8, 1995, a licensee employee conducted physical
radiation surveys with a survey instrument (Serial Number 3369)
which was last calibrated on February 17, 1995, an interval
exceeding three months.
2. on July 11, 1995, a licensee employee conducted physical
radiation surveys with a survey instrument (Serial Number 2015)
which was last calibrated on March 28, 1995, an interval exceeding
three months.
3. on August 15, 1994, a licensee radiographer conducted
physical radiation surveys with a survey instrument (Serial Number
3369) which was last calibrated on April 4, 1994, an interval
exceeding three months.
This is a repetitive violation.
2. Summary of the Licensees Response to Violation E
The Licensee denied this violation, and stated that there was
always a calibrated meter in use for surveys. The Licensee's
president stated that he must have misunderstood a conversation he
had with an NRC inspector regarding the use of survey instruments.
The Licensee's president also stated that he was under the
impression that as long as the survey meter used for compliance
surveys was calibrated, a second meter could be used for information
only.
Further, the Licensee's president stated that when an audit was
performed in the field and the equipment was found to be out of
calibration they only had to go to ``our trailer'' to obtain
properly calibrated equipment. In addition, the Licensee stated that
an NRC inspector allowed them to return to work because there was
properly calibrated functional equipment on site for use. The
Licensee also stated that the company had the appropriate equipment
in place for use. However, the workers did not take the time to
check calibration dates before starting to work.
3. NRC Evaluation of the Licensees Response to Violation E
10 CFR 34.24 requires, in part, that each survey instrument used
to conduct physical radiation surveys be calibrated at intervals not
to exceed three months and after each instrument servicing. The
inspection findings were based on a review of documentation of
survey instrument use and calibration, maintained by the Licensee,
which indicated instances where the survey instrument used to show
compliance had not been calibrated at the required frequency. While
the Licensee may have had in its possession survey instruments which
were calibrated as required, the Licensee did not comply with the
requirement as stated in 10 CFR 34.24. Specifically, survey meters
used by the Licensee to perform physical radiation surveys to ensure
compliance with 10 CFR 34.24 on the dates specified in the Notice
had not been calibrated within the previous three months as
required.
Having appropriately calibrated instruments on site or available
for use does not demonstrate compliance with this requirement. It is
the licensee's responsibility to assure that the instrument used is
calibrated as required. Therefore, the NRC concludes that the
Licensee has not provided an adequate basis for withdrawal of the
violation.
On November 14, 1995, Mr. Frank Costello, Chief, Nuclear
Materials Safety Branch 3, NRC, contacted the Licensee's president
by telephone for clarification of the Licensee's statement, in its
October 11, 1995 response, concerning an NRC inspector allowing the
Licensee to return to work because properly calibrated functional
equipment was on site. During the telephone conversation, the
Licensee's president stated that the NRC inspector allowed the
radiographers to return to work only after assuring that they were
using calibrated equipment.
4. Summary of Licensee's Request for Mitigation
In its responses, the Licensee requested that the proposed civil
penalty be reviewed for reduction if not dismissal. In June of 1995,
Canspec was purchased by the current president. The president stated
his contention that prior to this purchase, time was not spent where
it should have been and now that he has assumed the position of
president he will spend the time required to ensure that policy is
followed ``to the letter.'' The president stated that now he has
greater control over the operation and will be able to spend the
time necessary sorting out any problems with individuals and if they
fail to conform, they will be replaced. The Licensee also stated its
belief that the violations were not entirely the company's
responsibility. Further, the president stated that the company had
fulfilled the calibration requirements, yet the men made a mistake
by not checking the calibration dates before starting to work.
5. NRC Evaluation of Licensee's Request for Mitigation
The NRC determined that the violations, given their number,
nature, and the fact that three were repetitive, were of significant
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regulatory concern and appeared to be indicative of the lack of
management control over licensed activities. The lack of management
control was evidenced by the fact that 13 violations were identified
during the two NRC inspections in 1994. Therefore, the violations
were appropriately characterized at Severity Level III in accordance
with the ``General Statement of Policy and Procedure for NRC
Enforcement Actions'' (Enforcement Policy), NUREG-1600 (60 FR 34381;
June 30, 1995).
As to the president's statements concerning his increased
control over the Licensee's operation, the NRC considers that such
actions are part of the Licensee's corrective action and expects
licensees to exercise adequate management control over licensed
activities consistently to ensure the protection of the public and
the environment. Regardless of who committed the violations, the
Licensee is responsible for the acts of its employees and for
assuring that it is in compliance with all applicable regulations.
Therefore, the NRC concludes that the Licensee has not provided
an adequate basis for mitigation or withdrawal of the civil penalty.
6. NRC Conclusion
The NRC has concluded that the violation occurred as stated and
that an adequate basis for mitigation of the civil penalty was not
provided by the Licensee. Consequently, the proposed civil penalty
in the amount of $5,000 should be imposed.
[FR Doc. 96-2838 Filed 2-8-96; 8:45 am]
BILLING CODE 7590-01-P
