[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Notices]
[Pages 22081-22083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11029]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-31609 License No. 37-28496-01 (Revoked) EA 94-253]
McCormick, Taylor, And Associates, Inc., Philadelphia,
Pennsylvania; Order Imposing A Civil Monetary Penalty
I
McCormick, Taylor and Associates, Inc. (MTA) (Licensee) was the
holder of Byproduct Materials License No. 37-28496-01 (License) issued
by the Nuclear Regulatory Commission (NRC or Commission) on October 31,
1979. The License was revoked by the Commission on August 13, 1992 for
nonpayment of fees. The License authorized MTA to possess and use
certain byproduct materials in accordance with the conditions specified
therein at its facility in Philadelphia, Pennsylvania.
II
An inspection of MTA's activities was conducted on December 2,
1994, at MTA's facility located in Philadelphia, Pennsylvania. The
results of the inspection and review of communication (and associated
documents) conducted between NRC and MTA between August 13, 1992, and
November 19, 1994, indicated that MTA 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 MTA
by letter dated February 13, 1995. The Notice states the nature of the
violations, the provisions of the NRC requirements that MTA had
violated, and the amount of the civil penalty proposed for one of the
violations.
MTA responded to the Notice in two letters, both dated March 10,
1995. In its responses, MTA admits the violations as stated in the
Notice and requests mitigation of the penalty.
III
After consideration of MTA's responses and the statements of fact,
explanation, and arguments for [[Page 22082]] mitigation contained
therein, the NRC staff has determined, as set forth in the Appendix to
this Order, that the violations occurred as stated in the Notice, and
that the violation set forth in Section I of the Notice was
appropriately classified at a Severity Level III. The staff also has
determined that an adequate basis was provided for partial mitigation
of the penalty, and that a penalty of $2,000 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: MTA pay a civil penalty in the amount of
$2,000 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 James Lieberman, Director, Office of Enforcement,
U.S. Nuclear Regulatory Commission, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852-2738.
MTA may request a hearing within 30 days of the date 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,
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, PA 19406.
If a hearing is requested, the Commission will issue an Order
designating the time and place of the hearing. If MTA 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 MTA requests a hearing as provided above, the issue to
be considered at such hearing shall be whether, on the basis of
Violation I, which is admitted by MTA, this Order should be sustained.
Dated at Rockville, Maryland, this 26th day of April 1995.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Appendix--Evaluations and Conclusion
On February 13, 1995, a Notice of Violation and Proposed
Imposition of Civil Penalty (Notice) was issued for a violation
identified during a review of communications (and associated
documents) conducted between NRC and McCormick, Taylor and
Associates, Inc. (MTA) between August 13, 1992 and November 9, 1994,
as well as an NRC inspection conducted at the MTA facility on
December 2, 1994. MTA responded to the Notice in two letters, both
dated March 10, 1995. In its responses, MTA admits the violations as
stated in the Notice, but requests mitigation of the penalty. The
NRC's evaluation and conclusion regarding MTA's requests are as
follows:
Summary of MTA's Request for Mitigation
In its response, MTA maintains that there are a number of
extenuating circumstances and other mitigating factors which should
be considered and result in mitigation of the penalty.
With respect to the NRC application of 50% escalation because
the violation was identified by the NRC, MTA contends that it, in
fact, notified the NRC on December 2, 1994, that it could not locate
the gauge. MTA states that it did not become convinced until
December 1 or 2, 1994 that the gauge had been stolen or misplaced.
MTA further contends that a statement made by the Radiation Safety
Officer during a telephone conversation with the NRC on December 2,
1994, was, in fact, a notification that MTA was in violation.
With respect to the NRC application of 50% escalation because of
the lack of prompt action, MTA states that it was not until December
2, 1994, that it became fully aware that the gauge was lost or
stolen. MTA further maintains that it has acted promptly and
aggressively since December in an attempt to locate the gauge.
With respect to the NRC application of 100% escalation because
of prior opportunity to prevent the violation, MTA states that it
did not believe it ever received the Order issued in 1992 for
nonpayment of fees. At the enforcement conference, MTA indicated
that it requested proof of a delivery receipt from the NRC but the
NRC has not yet provided MTA with a receipt. MTA also states that
its Chief Financial Officer had a conversation with an NRC
representative (unnamed) in 1993, and was told that with its payment
of fees and penalties at that time it was fully paid up through
September 1994.
With respect to the NRC application of 100% escalation based on
duration (because the gauge was unattended for an extended period),
MTA states that there is no evidence to document how long the gauge
was outside the locked storage closet before it was lost or stolen.
MTA also states that its office is not easily accessible and is
typically a secure location, noting that the fact that the gauge was
out of its locked storage cabinet was not as risky a location as it
might seem. Therefore, while admitting the violation, MTA maintains
that these factors should reduce the escalation.
MTA also describes other bases which it considers mitigating
factors and extenuating circumstances to the proposed civil penalty.
Specifically, MTA contends that there was significant confusion over
payment of fees from 1991 to 1993, noting that on at least one
occasion, it was cited for nonpayment of a particular charge that
had in fact been paid. MTA stated that due to the confusion over
payment of fees, when it was contacted in August and September of
1994, there was still confusion over payment. MTA further states
that this confusion, and the fact that it never received the Order
in 1992 may help explain why it did not initially respond with
urgency.
MTA also states that a significant amount has already been paid
in penalties for late payment of fees and that the imposition of an
additional $3,000 seems excessive. MTA maintains that it acted
aggressively to locate the gauge over the ten weeks prior to its
response. MTA states that the penalty is excessive to emphasize the
importance of maintaining a valid license, and is unnecessary since
MTA does not intend to possess a gauge of this type, or any NRC
licensed material, in the future. MTA requests that the civil
penalty be reduced to $500.
NRC Evaluation of Licensee's Request for Mitigation
The NRC letter, dated February 13, 1995, transmitting the civil
penalty, notes that the base civil penalty amount of $500 in this
case was increased by 50% because the violations were identified by
the NRC; increased by 50% based on the licensee's lack of prompt
corrective action; increased by 100% based on the prior opportunity
since the Order provided ample notice of the need to control entry
to restricted areas; and increased 100% based on the duration
because the gauge was unattended in the vicinity of a closet for an
extended period, based on the RSO's recollection. The letter also
notes that to emphasize the importance of maintaining a valid
license or properly disposing of NRC-licensed materials,
particularly after the NRC directed and reminded MTA to do so, and
the importance of maintaining proper control of licensed material,
the NRC exercised discretion in accordance with Section VII.A of the
Enforcement Policy and increased the base civil penalty by an
additional 200%. As a result, a penalty of $3,000 was proposed.
With respect to the identification factor, the NRC is not citing
the licensee for failure to notify the NRC as required. It was
during the NRC inspection that the specific violation was
identified, namely, failure to maintain adequate security of
licensed material (which resulted in the gauge being lost or
stolen). Further, the loss of the gauge was only identified after
the NRC repeatedly reminded MTA of the need to transfer the gauge to
an authorized recipient, as well as to notify the NRC that such a
transfer had taken place. Therefore, mitigation is not warranted for
this factor.
With respect to the corrective actions and prior opportunity to
identify factors, the NRC also notes that MTA had ample opportunity
to identify and correct any problems with security of the gauge, via
the repeated [[Page 22083]] contacts with the NRC reminding MTA of
the need to transfer the gauge to an authorized recipient. If MTA
had aggressively responded to the Notice of a Violation issued by
the NRC on September 7, 1994, or the telephone call from Mr. Walt
Pasciak on August 29, 1994, the security violation could have either
been prevented, or corrected, or identified if the gauge was already
missing.
MTA's failure to do so is considered particularly egregious.
Even if MTA had not received a copy of the 1992 Order, it had
several conversations with NRC staff regarding the status of the
gauge between August 1992 and November 1994, and had received the
September 7, 1994 Notice of Violation which provided prior
opportunities to prevent or correct this violation. If MTA had
promptly acted to locate and transfer the gauge to an authorized
recipient at that time, the security violation and subsequent loss
of the gauge might have been prevented. Therefore, no mitigation is
warranted for these factors.
With respect to the duration factor, while MTA contends that its
office is typically a secure location, and the gauge being out of
its locked storage cabinet is not as risky a situation as it might
seem, MTA's action to remove the gauge from its secure location
without taking appropriate measures for an extended period, as the
RSO recollects, provided an appropriate basis for excalating the
penalty on this factor. Therefore, no mitigation of this factor is
warranted.
Escalation of the penalty by 200% to emphasize the importance of
maintaining a valid license is no longer warranted due to MTA's
assertion that they do not intend to posses any NRC licensed
material in the future. Therefore, the penalty is reduced to $2,000.
Furthermore, notwithstanding MTA's contention, the NRC does not
consider the penalty excessive, particularly given the fact that the
security violation resulted in a loss or theft of radioactive
material.
NRC Conclusion
The NRC has concluded that MTA did not provide an adequate basis
for mitigation of the civil penalty to $500. Given the significance
of the failure to maintain security of radioactive materials, and
the loss of the gauge that occurred in this case, a civil penalty in
the amount of $2,000 should be imposed.
[FR Doc. 95-11029 Filed 5-3-95; 8:45 am]
BILLING CODE 7590-01-M
