[Federal Register Volume 63, Number 120 (Tuesday, June 23, 1998)]
[Notices]
[Pages 34198-34200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16645]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-31174, License No. 07-28386-01, EA NO. 98-061]
Koch Engineering Company, Inc., Newark, Delaware; Order Imposing
a Civil Monetary Penalty
I
Koch Engineering Company, Inc. (Licensee) is the holder of
Byproduct Materials License No. 07-28386-01 (License) issued by the
Nuclear Regulatory Commission (NRC or Commission) on July 24, 1989, and
most recently renewed by the NRC on August 28, 1995. The License
authorizes the Licensee to possess and use certain byproduct materials
in accordance with the conditions specified therein at its facilities
in Newark, Delaware, Canton, Michigan, and temporary job sites anywhere
in the United States where the U.S. Nuclear Regulatory Commission
maintains jurisdiction.
II
A special inspection of the Licensee's activities was conducted on
September 15, 1997, to review the circumstances associated with an
event involving the shipment of a package of radioactive material (3
cesium-137 sources) via Federal Express from the Licensee's facility in
Newark, Delaware to Wilmington, North Carolina. The package was empty
upon arrival in North Carolina, and the sources were later found at a
Federal Express facility in Memphis, Tennessee. The NRC inspection was
continued in the Region I office on January 20, 1998, to review
evaluations of doses received by Federal Express workers as a result of
the event. 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
March 13, 1998. The Notice states the nature of the violations, the
provisions of the NRC requirements that the Licensee violated, and the
amount of the civil penalty proposed for the violation.
The Licensee responded to the Notice in letters, dated April 8 and
9, 1998. In its responses, the Licensee admits the violations, but
disputes the Severity Level of the violation that resulted in the
issuance of the civil penalty and requests that the proposed penalty of
$4,400 be reconsidered.
III
After consideration of the Licensee's response and the statements
of fact, explanation, and argument contained therein, the NRC staff has
determined, as set forth in the Appendix to this Order, that the
Licensee has not provided an adequate basis for reducing the Severity
Level of the violation or for withdrawal of the civil penalty
associated with this violation. Therefore, a civil penalty in the
amount of $4,400 should be imposed.
[[Page 34199]]
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 $4,400 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, 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 addressed to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, with a copy to the
Commission's Document Control Desk, Washington, DC 20555. Copies also
shall be sent to the Deputy Assistant General Counsel for 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 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:
Whether on the basis of the violation admitted by the Licensee,
this Order should be sustained.
Dated at Rockville, MD, this 12th day of June 1998.
For the Nuclear Regulatory Commission.
Ashok C. Thadani,
Acting Deputy Executive Director for Regulatory Effectiveness.
Appendix--Evaluations and Conclusion
On March 13, 1998, a Notice of Violation and Proposed Imposition of
Civil Penalty (Notice) was issued to Koch Engineering Company, Inc.
(Licensee) for violations identified during NRC review of the
circumstances associated with an event involving the shipment of a
package containing 3 cesium-137 sources from the Licensee's facility in
Newark, Delaware to Wilmington, North Carolina. The package was empty
upon arrival in North Carolina, and the sources were later found at a
Federal Express facility in Memphis, Tennessee. The Licensee responded
to the Notice in letters, dated April 8 and 9, 1998. In its responses,
the Licensee admits the violations, but disputes the Severity Level of
the violation for which a civil penalty was assessed and requests the
NRC reconsider the proposed civil penalty of $4,400. The NRC's
evaluation and conclusion regarding the Licensee's requests are as
follows:
Restatement of the Violation
10 CFR 71.5(a) requires that a licensee who transports licensed
material outside of the site of usage, as specified in the NRC license,
or where transport is on public highways, or who delivers licensed
material to a carrier for transport, comply with the applicable
requirements of the regulations appropriate to the mode of transport of
the Department of Transportation (DOT) in 49 CFR Parts 170 through 189.
49 CFR 173.475 requires, in part, that before each shipment of any
radioactive materials package, the offeror must ensure, by examination
or appropriate tests, that each closure device of the packaging,
including any required gasket, is properly installed, secured, and free
of defects.
Contrary to the above, prior to September 15, 1997, the licensee
had failed to ensure, by examination or test, that each closure device
was properly installed, secured, and free of defects before each
shipment of packages containing radioactive material. Specifically, the
licensee did not ensure that the Master Lock No. 175 padlock attached
to the packages were examined or tested in that the individual
responsible for installing the padlock did not pull on the lock after
it was closed to ensure that it was secure.
This is a Severity Level II violation (Supplement VI). Civil
Penalty--$4,400
Summary of the Licensee's Response
The Licensee admits the violation, but contends that the criteria
used to classify the violation at Severity Level II are not applicable,
because it believes that it is possible that the loss of control of
radioactive material could have resulted from inappropriate handling by
the carrier (Federal Express) and that the violation did not result in
a clear potential for a member of the public to receive more than 100
mrem to the whole body.
The Licensee agrees that the violation may have been the probable
cause for the ``loss of control of radioactive material via a breach in
the package's integrity,'' but it believes that the inappropriate
handling by the carrier's hazmat personnel may have also been a
contributing factor. The Licensee contends that the package was offered
to the carrier with the lock and two electrical tie wraps installed and
that inappropriate handling by the carrier, such as a substantial drop
from a height of greater than 4 feet, may have resulted in the initial
lock failure and subsequent loss of the three sealed sources from the
container. Additionally, the Licensee contends that the carrier's
hazmat employee, who first noticed the opened empty container, did not
follow proper procedures when he/she placed the lid back on the
container and allowed the container to proceed, rather than immediately
reporting the incident to his/her supervisor.
Based on the regulatory criteria specified in 49 CFR, the Licensee
contends that regulations required that its package should have only
been in the care of individuals classified as ``hazmat employees''
during all stages of the shipping process. The Licensee also states
that the regulations require that hazmat employees be trained
concerning ``methods and procedures for avoiding accidents, such as the
proper procedures for handling packages of hazardous material.''
Therefore, the Licensee contends that, while the carrier is not
regulated by the NRC, the carrier's actions should be considered when
determining accountability.
The Licensee also contends that the violation did not result in a
``clear potential for a member of the public to receive more than 100
mrem to the whole body,'' noting that the regulations required that
their radioactive material shipment only be handled by trained hazmat
employees. The Licensee contends that the carrier's hazmat employees
are not considered members of the public while performing hazmat duties
because they receive
[[Page 34200]]
``occupational dose.'' Additionally, the Licensee notes that the
incident occurred at the end of the film badge reporting period and
there is no supportive evidence that all of the 90 mrem received by the
worker was the direct result of the incident. Therefore, the Licensee
maintains that there was no clear potential for a member of the public
to receive more than 100 mrem to the whole body.
Finally, the Licensee notes that while the NRC's March 13, 1998
Notice stated that the Licensee's corrective actions were prompt and
comprehensive, it was not clear whether credit for such actions was
considered in assessing the amount of the civil penalty.
NRC's Evaluation of the Licensee's Response
The NRC does not dispute the Licensee's contention that
inappropriate handling by the carrier's hazmat personnel may have
contributed to the loss of control of radioactive material. At a
minimum, proper action when the lid was found unattached could have
minimized the amount of time that the radioactive material was
uncontrolled. However, the carrier's actions do not relieve the
Licensee of its responsibility to ensure that each closure device on
the radioactive materials package is properly installed and secure.
Regardless of events that occurred after the package left the
Licensee's control, the Licensee's failure to assure that the hasp on
the lock was secure prior to shipment was the most probable cause of
the loss of control of the radioactive material, and is considered a
significant violation of NRC requirements.
In addition, the NRC does not dispute the Licensee's position that
hazmat employees are not considered members of the public. However, the
NRC disagrees that there was no clear potential for a member of the
public to receive more than 100 mrem to the whole body as a result of
the Licensee's failure to ensure that the lock on the package
containing the sealed sources was properly installed and secure. The
sources could have been lost at any time during the shipping process,
such as on the aircraft or in the vehicle that were used to transport
the package, and so the clear possibility existed that members of the
public could have come in contact with the sources. Considering the
configuration of the sources (the sealed sources were contained in
approximately 4 inch long bolts) and the quantity of radioactive
material in the package (the 3 sources contained 1, 18, and 100
millicuries of cesium-137 respectively), the NRC continues to conclude
that there was a clear potential for a member of the public to
unknowingly come in contact with the sources and receive an exposure
greater than 100 mrem to the whole body.
Example B.1 of Supplement V of the NRC's Enforcement Policy
provides that a ``[f]ailure to meet transportation requirements that
resulted in loss of control of radioactive material with a breach in
package integrity such that there was a clear potential for the member
of the public to receive more than .1 rem [100 mrem] to the whole
body'' be considered as a Severity Level II violation. Therefore, the
NRC maintains that the violation was appropriately classified at
Severity Level II.
With regard to the Licensee's argument concerning its corrective
actions, as stated in our March 13, 1998 letter, credit was warranted
for your corrective actions in accordance with the civil penalty
assessment process in Section VI.B.2 of the Enforcement Policy. Had the
Licensee not taken prompt and comprehensive corrective actions, a civil
penalty of $8,800 (twice the base amount) would have been proposed.
NRC Conclusion
The NRC has concluded that the Licensee did not provide a basis for
reducing the Severity Level of the violation nor for reducing or
withdrawing the civil penalty. Accordingly, a civil penalty in the
amount of $4,400 should be issued.
[FR Doc. 98-16645 Filed 6-22-98; 8:45 am]
BILLING CODE 7590-01-P
