96-13673. Bemis Construction, Inc.; Order Imposing Civil Monetary Penalty  

  • [Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
    [Notices]
    [Pages 27373-27374]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-13673]
    
    
    
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    NUCLEAR REGULATORY COMMISSION
    [Docket No. 999-90004; License No. KS 22-B274-0;1 EA 95-276]
    
    
    Bemis Construction, Inc.; Order Imposing Civil Monetary Penalty
    
    I
    
        Bemis Construction, Inc., (Bemis) is the holder of Radioactive 
    Materials License No. 22-B274-01, a specific license issued by the 
    state of Kansas, an Agreement State on September 30, 1987. The license 
    authorizes Bemis to possess and use sealed radioactive sources in 
    portable nuclear density gauges at a specific location in Great Bend, 
    Kansas and at temporary jobsites in the State of Kansas in accordance 
    with the conditions specified in the license. Pursuant to 10 CFR 150.20 
    and its license, a general license is granted to Agreement State 
    licensees to conduct the same activities in areas under NRC 
    jurisdiction (referred to as ``reciprocity''), provided that the NRC is 
    notified and the other provisions of 10 CFR 150.20 are followed.
    
    II
    
        An inspection and investigation of Bemis's activities were 
    conducted during August 17, 1995, through January 3, 1996. The results 
    of the inspection and investigation, documented in a report issued on 
    January 11, 1996, indicated that Bemis had not conducted its activities 
    in full compliance with NRC requirements. The violations identified 
    included use and storage of licensed material in NRC jurisdiction 
    without having complied with the requirements for reciprocity. Bemis 
    responded to the inspection report by letter dated January 22, 1996. In 
    its letter, Bemis stated that the reason for the violation was an 
    understanding that the gauge could be used in Oklahoma for short 
    periods of time. A written Notice of Violation and Proposed Imposition 
    of Civil Penalty (Notice) was served upon Bemis by letter dated March 
    19, 1996. The Notice stated the nature of the violation, the provisions 
    of the NRC requirements that Bemis had violated, and the amount of the 
    civil penalty proposed for the violation.
        Bemis responded to the Notice by letter dated April 17, 1996 (Reply 
    to a Notice of Violation and Answer to a Notice of Violation). In its 
    response, Bemis stated that there was an apparent mistaken belief that 
    a reciprocity permit with the NRC was not required under certain 
    conditions. The letter also requested mitigation of the proposed civil 
    penalty based on assurances that Bemis is in compliance now and will 
    not violate the cited requirements in the future.
    
    III
    
        After consideration of Bemis'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 described in the Notice, and that the 
    penalty proposed for the violations should be imposed by order.
    
    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:
        Bemis Construction, Inc., pay a civil penalty in the amount of 
    $2,500 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 James Lieberman, Director, Office of
    
    [[Page 27374]]
    
    Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 
    11555 Rockville Pike, Rockville, MD 20852-2738.
    
    V
    
        Bemis 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 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 Bemis 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 Bemis 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 Bemis, this Order should be sustained.
    
        Dated at Rockville, Maryland this 23rd day of May 1996.
        For the Nuclear Regulatory Commission.
    
    James Lieberman,
    Director, Office of Enforcement.
    
    Appendix--Evaluation and Conclusions
    
        On March 19, 1996, a Notice of Violation and Proposed Imposition 
    of Civil Penalty (Notice) in the amount of $2,500 was issued to 
    Bemis Construction, Inc., (Bemis) for a violation identified during 
    an NRC inspection and investigation. Bemis responded to the Notice 
    in a letter dated April 17, 1996. Bemis admitted the violation but 
    requested mitigation of the proposed civil penalty based on its 
    contention that the violation was not intentional and on assurances 
    that Bemis is in compliance now and will not, in the future, violate 
    the rules which were cited.
    
    Restatement of Violation Assessed a Civil Penalty
    
        10 CFR 30.3 requires in relevant part, that no person shall 
    possess or use byproduct material except as authorized by a specific 
    or general license issued by the NRC.
        10 CFR 150.20(a) provides in part that any person who holds a 
    specific license from an Agreement State is granted an NRC general 
    license to conduct the same activity in non-Agreement States subject 
    to the provisions of 10 CFR 150.20(b).
        10 CFR 150.20(b)(1) requires, in part, that any person engaging 
    in activities in non-Agreement States shall, at least 3 days before 
    engaging in each such activity, file 4 copies of NRC Form-241, 
    ``Report of Proposed Activities in Non-Agreement States,'' with the 
    Regional Administrator of the appropriate NRC regional office.
        Contrary to the above,
        A. From March 1991 through August 1992, Bemis Construction, Inc. 
    a licensee of Kansas, used cesium-137 and americium-241 sealed 
    sources in Oklahoma, a non-Agreement State, without a specific 
    license issued by the NRC and without filing Form-241 with the NRC.
        B. From March 1991 through July 1995, Bemis Construction, Inc. a 
    licensee of Kansas, stored cesium-137 and americium-241 sealed 
    sources in Oklahoma, a non-Agreement State, without a specific 
    license issued by the NRC and without filing Form-241 with the NRC. 
    (01013)
        This is a Severity Level III violation (Supplement VI). Civil 
    Penalty--$2,500
    
    Summary of Bemis's Request for Mitigation
    
        Bemis responded to the violation in a letter from Mr. Thomas J. 
    Berscheidt, Attorney At Law, dated April 17, 1996. Mr. Berscheidt 
    stated that he represents Bemis and that he had reviewed the March 
    19, 1996, letter from the NRC and the enclosed Notice. Mr. 
    Berscheidt's letter stated that there was no intent to avoid 
    compliance with the regulations. There was ``simply a 
    misunderstanding and lack of information concerning these 
    regulations.'' Bemis stated that it will not, now or in the future, 
    regardless of the oversight or lack of knowledge, intentionally 
    violate any of the rules and regulations of the NRC. Further, 
    Bemis's response stated that it is recognized that each party is 
    responsible for being aware of the rules and regulations, but there 
    are times when, regardless of the effort and honest intent of any 
    individual or corporation, all rules and regulations cannot be known 
    or at least readily obtained and usually the awareness factor does 
    not surface until the violation has been identified. With the 
    assurance that Bemis is in compliance and will not violate the rules 
    which were cited, the licensee requested mitigation of the civil 
    penalty. The letter also noted that this was the first time that 
    Bemis has violated NRC requirements.
    
    NRC Evaluation of Licensee's Request for Mitigation
    
        The Kansas license provided that material ``may be used at 
    Railroad & McKinley, Great Bend, Kansas and at temporary job sites 
    of the licensee anywhere in the State of Kansas where the State of 
    Kansas, Department of Health and Environment maintains jurisdiction 
    for regulating the use of radioactive material.'' This provision 
    does not authorize operations in the State of Oklahoma, which is 
    under NRC jurisdiction. Therefore, it is not clear why there was any 
    misunderstanding. The fact that Bemis did not attempt to verify its 
    understanding by merely telephoning the NRC, or make any other 
    effort to verify its understanding, was the basis for NRC's 
    conclusion that the violation was the result of, at least, careless 
    disregard for the involved requirements.
        Even in the absence of willfulness, the NRC considers the 
    failure to obtain authorization to use byproduct materials in areas 
    under its jurisdiction to be a matter of significant regulatory 
    concern. This is because the failure to obtain NRC authorization for 
    such activities denies the NRC the opportunity to assure that the 
    activities are conducted in compliance with all NRC requirements. 
    Furthermore, the failure to obtain authorization resulted in Bemis's 
    failure to pay fees in each of the years that Bemis was in 
    violation. We note that the civil penalty is approximately the same 
    amount as the delinquent fees.
        Bemis concludes its April 17 letter with its assurances of 
    compliance (with the cited requirements), now and in the future, and 
    respectfully requested that the civil penalty be reduced. The NRC's 
    Enforcement Policy does provide for mitigation of civil penalties 
    under certain conditions, through the consideration of the 
    identification and corrective action factors (reference Section 
    VI.B.2 of the enforcement policy). The NRC's March 19, 1996 letter 
    that accompanied the Notice described the NRC's analysis of these 
    identification and corrective action factors, and concluded that the 
    base penalty should be assessed. The licensee's April 17 letter did 
    not provide any additional information that would change the civil 
    penalty assessment.
    
    NRC Conclusion
    
        After consideration of all of the arguments made by Bemis, the 
    NRC concludes that the civil penalty that was proposed should not be 
    mitigated.
    
    [FR Doc. 96-13673 Filed 5-30-96; 8:45 am]
    BILLING CODE 7590-01-P
    
    

Document Information

Published:
05/31/1996
Department:
Nuclear Regulatory Commission
Entry Type:
Notice
Document Number:
96-13673
Pages:
27373-27374 (2 pages)
Docket Numbers:
Docket No. 999-90004, License No. KS 22-B274-0, 1 EA 95-276
PDF File:
96-13673.pdf