02-15425. Decisive Testing, Inc., San Diego, California; Order Imposing Civil Monetary Penalty

I

Decisive Testing, Inc. (Licensee) is the holder of California Radioactive Material License No. 1836-37, which authorizes the Licensee to use sealed sources containing byproduct material to conduct industrial radiography. California is an Agreement State as defined by 10 CFR 150.3(b) of the NRC's regulations. Pursuant to 10 CFR 150.20 of the NRC's regulations, the Licensee is granted a general license to conduct the same activity in areas of exclusive Federal jurisdiction provided the requirements of 10 CFR 150.20(b) have been met.

II

An inspection and an investigation of the Licensee's activities were completed in September 2001. 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 Penalty (Notice) was served upon the Licensee by letter dated February 27, 2002. The Notice stated the nature of the violation, the provisions of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated March 21, 2002. In its response, the Licensee admitted the violation, but requested that discretion be exercised and that no civil penalty be assessed.

III

After consideration of the Licensee's responses and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined that violations cited in the Notice were willful, and that the civil penalty proposed 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 $6,000 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 Materials Litigation 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 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 violation admitted by the Licensee, this Order should be sustained.

Dated this 11th day of June 2002.

For the Nuclear Regulatory Commission.

Frank J. Congel,

Director, Office of Enforcement.

Appendix to Order Imposing Civil Penalty

NRC Evaluation and Conclusion of Licensee's Request for Mitigation of Civil Penalty

On February 27, 2002, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for a violation identified during an NRC inspection and investigation. Decisive Testing, Inc. (DTI or Licensee) responded to the Notice on March 21, 2002. The Licensee admitted the violation, but requested that discretion be exercised and no civil penalty assessed. The NRC's evaluation and conclusion regarding the licensee's response are as follows:

Summary of Licensee's Request for Mitigation

DTI admitted the violation, but requested that discretion be exercised and that no civil penalty be assessed. DTI based this request on its statement that there was no threat to public health, that the situation was corrected before the NRC became involved, and that management had no reason to suspect that a responsible employee would schedule covered work without first making certain the reciprocity form was filed and the fee paid. DTI suggested that a violation such as this with a very low safety significance might best be addressed by a letter of reprimand. DTI also stated that the violation does not fit neatly into Table 1A of the NRC Enforcement Policy, arguing that Decisive Testing is not the equivalent of the other facilities listed in the same category, and that this type of violation is not listed in the examples of violations included in the supplements to NRC's Enforcement Policy. DTI stated that the penalty appeared to be more severe than was intended by the authors of the regulation. DTI also questioned the characterization of the violation as having occurred on at least six occasions, because this may be viewed as implying the suspicion of additional violations.

NRC Evaluation of Licensee's Request for Mitigation

The NRC agrees that the violation, in and of itself, posed no threat to public health and safety. It is an administrative violation, but one on which NRC has intentionally placed some importance. The NRC considers this type of violation important because without proper notification, the NRC cannot conduct inspections of Agreement State licensees to assure that such licensees are conducting their activities safely and in accordance with NRC requirements.

With regard to DTI's statement that management had no reason to suspect that a responsible employee would schedule covered work without first making certain the reciprocity form was filed and the fee paid, the NRC notes its Enforcement Policy holds licensees accountable for the actions, or omissions, of their employees. It is incumbent on employers to assure that their employees are abiding by NRC requirements in the conduct of NRC-licensed activities.

With regard to DTI's several statements regarding the treatment of this violation within the NRC's Enforcement Policy, the NRC assures DTI that the violation was properly classified at Severity Level III, and that a specific example of this violation is contained in Supplement VI of the policy. Supplement VI, example C.7, states, “A failure to submit an NRC Form 241 as required by 10 CFR 150.20.” In addition, DTI was properly classified as an industrial radiography licensee in Table 1A of the Enforcement Policy.

For the reasons discussed above, the NRC has intentionally placed importance on this type of violation. In this particular case, the violation was more significant because it was committed willfully. NRC's investigation identified six examples of this violation, and each of the six examples was cited in the violation because each involved a separate opportunity for DTI's assistant radiation safety officer to comply with NRC's requirements and file the necessary form. However, for the purpose of the civil penalty, the six examples were treated as one violation and assessed one civil penalty.

Thus, the NRC concludes that the violation and civil penalty were correctly assessed and were in accordance with the NRC's Enforcement Policy.

NRC Conclusion

The NRC concludes that DTI has not provided a sufficient basis for mitigation of the proposed civil penalty. Consequently, the proposed civil penalty in the amount of $6,000 should be imposed by Order.