[Federal Register Volume 59, Number 40 (Tuesday, March 1, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-4561] [[Page Unknown]] [Federal Register: March 1, 1994] ----------------------------------------------------------------------- NUCLEAR REGULATORY COMMISSION [Docket No. 030-00810, License No. 21-00278-02, General License, 10 CFR 31.5 EA 93-234] Michigan Technological University, Houghton, MI; Order Imposing Civil Monetary Penalty I Michigan Technological University (Licensee) is the holder of Byproduct Material License No. 21-00278-02 issued by the Nuclear Regulatory Commission (NRC or Commission) on April 25, 1958. The license was amended in its entirety on December 17, 1991, and is due to expire on December 31, 1996. The license authorizes the Licensee to possess byproduct materials for laboratory research, cesium-137 and americium-241 for use in a moisture/density gauge, nickel-63 for use in a gas chromatograph, and hydrogen-3 targets for a neutron generator, in accordance with the conditions specified therein. II An inspection of the Licensee's activities was conducted on August 26 through September 27, 1993. 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 November 26, 1993. The Notice stated the nature of the violations, the positions 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 by a letter dated December 17, 1993. In its response, the Licensee requested that the proposed civil penalty be mitigated in its entirety or at least 50 percent of the base civil penalty. Further, the Licensee admitted Violations I.A through I.D, I.G., I.H, II, III, and IV, denied Violation I.E in part, and denied Violations I.F. and V. 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 in the Notice 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 $3,750 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 the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555. V The Licensee may request a hearing within 30 days of the date of this Order. 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, ATTN: Document Control Desk, Washington, DC 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 III, 801 Warrenville Road, Lisle, Illinois 60532-4351. 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: (a) Whether the Licensee was in violation of the Commission's requirements as set forth in Violations I.E., I.F, and V of the Notice referenced in section II above, and (b) Whether, on the basis of such violations and the additional violations set forth in the Notice that the Licensee admitted, this Order should be sustained. Dated at Rockville, Maryland this 22nd day of February 1994. For the Nuclear Regulatory Commission. James Lieberman, Director, Office of Enforcement. Appendix--Evaluations and Conclusions On November 26, 1993, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for thirteen violations identified during an NRC inspection on August 26 through September 27, 1993. Michigan Technological University responded to the Notice in a letter dated December 17, 1993. In its response, the Licensee requested that the proposed civil penalty be mitigated in its entirety or at least by 50 percent of the base civil penalty. Further, the Licensee admitted Violations I.A through I.D, I.G, I.H, II, III, and IV, denied Violation I.E in part, and denied Violations I.F. and V. The NRC's evaluation and conclusions regarding the Licensee's requests are as follows: Restatement of Violation I.E I. Condition 19.A of License No. 21-00278-02 requires that the Licensee conduct its program in accordance with statements, representations and procedures contained in applications dated June 30 and November 12, 1991, including enclosures. E. Part 4 of the letter dated November 10, 1991, enclosed with the Licensee's application dated November 12, 1991, entitled, ``Summary of Planned Inventory and Possession Limits of the Users of Radioactive Materials in Liquid Form,'' states that Dr. Murthy's possession limit for phosphorus-32 is 2 millicuries and that Dr. Leuking's possession limit for tritium is 2 millicuries and for sulfur-35 is 0.5 millicuries. Contrary to the above, from approximately January through July 1993, Dr. Murthy possessed 5 millicuries of phosphorus-32 and Dr. Leuking possessed 5 millicuries of tritium and 3 millicuries of sulfur-35. Summary of Licensee's Response to the Violation I.E The Licensee denied Violation I.E in part. The licensee stated that the user limits remained within University limits for users of radioactive materials. The Licensee, therefore, holds rigidly to control possession within those limits for the University spelled out in the license. While Dr.'s Murthy and Leuking possessed radioactive materials in excess of their individual limits, neither user's inventory impacted the University's limits. NRC Evaluation of Licensee's Response to Violation I.E Although the Licensee's possession of radioactive materials remained within the University limits specified in the license, the two individual users did, in fact, violate the individual limits which were incorporated in License Condition 19.A, by reference to Part 4 of the letter dated November 10, 1991, enclosed with the Licensee's application dated November 12, 1991. Therefore, the NRC concludes that Violation I.E is valid. Restatement of Violation I.F I. Condition 19.A of License No. 21-00278-02 requires that the Licensee conduct its program in accordance with statements, representations and procedures contained in applications dated June 30 and November 12, 1991, including enclosures. F. Part 3 of the letter dated November 10, 1991, enclosed with the Licensee's application dated November 12, 1991, entitled, ``The Radiation Safety Program and DRU Concept,'' lists the duties and responsibilities of the DRUs. Item c. of the list states that the DRU will keep a log book of the receipt, use, and disposition of their radioisotopes. Contrary to the above, from approximately January through July 1993, Dr. Murthy, a DRU, did not log the disposition of the quantities of phosphorus-32 that were disposed as liquid radioactive waste in the sanitary sewer and the quantities of solid radioactive waste that were transported out of the laboratory. Summary of Licensee's Response to Violation I.F The Licensee asserted that the alleged violation resulted from the interpretation made by the inspector of information posted in the log. Neither the responsible DRU nor assigned graduate laboratory assistants were present at the time of the inspection. This observation would not have occurred had any one of the three responsible persons been present during the inspection. In Dr. Murthy's procedures, liquid phosphorus-32 is never disposed of down the sanitary sewer as radioactive waste. Generally all radioactive phosphorus-32 compounds are used within one to two weeks after receipt. All radioactive phosphorus-32 waste, solid and liquid, is then stored in the hazardous material storage building for greater than ten half-lives from the date received and then disposed of as non-radioactive waste. Dates received, users, quantities used, and quantities left in vials are timely entered in the radioactive compound log columns. Disposal columns are left open until decayed materials are brought back and disposed of as non-radioactive materials. Hand written notes are made in the margin of the log forms to act as reminders to properly dispose of the waste. This process could have been satisfactorily explained to the inspector had any of the three responsible lab persons been present. To prevent reoccurrence of misinterpretation, Dr. Murthy has been advised of the necessity to follow standard procedures when maintaining the log records. NRC Evaluation of Licensee's Response to Violation I.F Although neither the responsible DRU (Dr. Murthy) nor the assigned graduate laboratory assistants were present during the inspection of this item, the inspector was assisted by the RSO when Dr. Murthy's laboratory was visited. The RSO indicated that liquid radioactive waste was disposed to the sewer via the hot sink located in a designated fume hood in the laboratory. This fume hood also contained laboratory trash that was contaminated with phosphorus-32. The inspector measured radiation dose rates from the hot sink drain that indicated 3 millirem per hour. The inspector also confirmed that the measured radiation dose rates in the hot sink were not generated from the laboratory trash that was also stored in the fume hood. The radiation dose rate measurements indicated that phosphorus-32 had been disposed as liquid radioactive waste to the sewer via the hot sink in the fume hood in the manner described by the RSO. In addition, the inspector evaluated, with the assistance of the RSO, Dr. Murthy's written records for receipt, use, and disposal of phosphorus-32 and tritium. The records were formatted as a balance sheet for radioactivity. The balance sheets indicated dates and activities of phosphorus-32 received and used by Dr. Murthy's graduate laboratory assistants. However, the balance did not indicate the activities disposed as liquid and solid radioactive waste. As indicated by the Licensee's response dated December 17, 1993, Dr. Murthy did not follow standard procedures when maintaining the records of radioactive waste in that Dr. Murthy did not account for liquid radioactive waste that was disposed via the hot sink and solid radioactive waste that was transferred from the laboratory. Therefore, NRC concludes that Violation I.F is valid. Restatement of Violation V V. 10 CFR 31.5(c)(3) requires, in part, that any person who acquires, receives, possesses, uses or transfers byproduct material in a device pursuant to a general license shall assure that installation involving the radioactive material is performed: (1) in accordance with the instructions provided by the labels; or (2) by a person holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to perform such activities. Contrary to the above, from approximately 1976 until August 26, 1993, installation of the Licensee's Texas Nuclear Model 5176 and three Kay Ray Model 7030B density gauges each containing cesium-137, was not performed in accordance with the instructions provided by the labels or by a person holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to perform such activities. Specifically, the density gauges were not permanently installed on a pipeline in a manner consistent with the installation requirements. Summary of Licensee's Response to Violation V The Licensee stated that the portable carts for four (4) density gauges were fabricated at Michigan Technological University. Upon receipt from the manufacturers, the gauges were permanently installed on the carts. Upon completion of the installation they were inspected and tested by representatives of the manufacturers. The portable carts are necessary to make various temporary installations on various pilot-plant projects. These temporary installations do not alter the factory approved testing and installation. The Licensee asserted that the alleged violation stems from the fact that its carts are prototype carts and not of the standard manufactured model. Because its gauges are mounted on portable carts rather than stationary, the pipe moves when the density gauges move. NRC Evaluation of Licensee's Response to Violation V Although the Licensee installed the four density gauges on portable carts that were fabricated by the Licensee, the sealed source and device evaluation of the gauge performed by NRC and the State of Texas did not review and approve use of the density gauges in a portable fashion. The manufacturer did not furnish to the Licensee specific instructions for installation and use of the density gauges on portable carts. The density gauges were designed and evaluated as devices that would be installed in a permanent location by instructed individuals who are specifically authorized by NRC or an Agreement State to install or relocate the device. Therefore, NRC concludes that Violation V is valid. Summary of Licensee's Request for Mitigation The Licensee denied the breakdown in the control of licensed activities in its December 17, 1993 answer to the Notice. While the Licensee admitted some of the violations stated in the NRC's letter, the Licensee believed that in no instance was any violation driven by willful intent to evade compliance, nor was there reckless disregard for radiation safety and health. Further, the Licensee believed that as its improved safety procedures were reestablished and after its management team had been restructured, each instance of noncompliance would have ultimately been discovered and corrected by persons entrusted with the responsibility for radiation safety on its campus. The Licensee asserted that these violations came about as the result of a temporary condition that existed at the University. While the NRC inspection hastened the discovery and correction of the problem areas, given time, the Licensee would have discovered all the infractions found by the NRC inspector and made necessary corrections without NRC intervention. The Licensee stated that both management and the Radiation Safety Officer insist on compliance with the radiation safety program and its requirements. Given these facts, the Licensee requested that the proposed civil penalty be mitigated in its entirety or at least by 50 percent of the base civil penalty. NRC Evaluation of Licensee's Request for Mitigation The NRC determined that the thirteen violations represented a breakdown in the control of licensed activities. The root cause of the violations was an apparent lack of management attention to the radiation safety program by Michigan Technological University's administration, the Radiation Safety Committee, and the Radiation Safety Officer following the replacement of the upper two echelons of management at the university. The violations are related and collectively represented a potentially significant lack of attention or carelessness toward licensed responsibilities and were classified as Severity Level III in accordance with Supplement VI.C.7 of the Enforcement Policy (10 CFR Part 2, Appendix C). With regard to your concern that these violations were willful or reckless, the NRC did not characterize the violations as willful. Had the NRC characterized the violations as willful (i.e., careless disregard or deliberate), the severity level would have been increased and the base civil penalty would have been increased in accordance with Table 1A and 1B of the Enforcement Policy. In addition, if the violations involved the deliberate intent to violate NRC requirements, the Commission might have taken additional enforcement action, including issuance of appropriate orders to modify, suspend or revoke your license. The NRC acknowledges the improvements of the safety procedures and the significant management changes made by the Licensee. The staff views the Licensee's improvements in the radiation safety program as ongoing and that the Licensee, as it asserts, may have ultimately discovered and corrected each instance of noncompliance by persons entrusted with the responsibility for radiation safety on its campus. However, this assertion does not alter the fact that violations and noncompliance with NRC requirements existed and were identified by the NRC. As a result, the base civil penalty was escalated 50 percent for NRC identification in accordance with the Enforcement Policy. Based on the above, the staff concludes that mitigation is not warranted based on the licensee's request for mitigation. NRC Conclusion Based on its evaluation of the Licensee's response, the NRC staff concludes that the violations did occur as stated, and that an adequate basis for mitigation of the civil penalty has not been provided by the Licensee. Accordingly, NRC concludes that a civil monetary penalty of $3,750 should be imposed by order. [FR Doc. 94-4561 Filed 2-28-94; 8:45 am] BILLING CODE 7590-01-M
