Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Notices 59907

1 In this earlier Enforcement Policy, the base

amount for a Severity Level III was $500 and the

civil penalty assessment process involved

consideration of 6 factors. Under the current

Enforcement Policy, the base amount for a Severity

Level III is $2,500 and the civil penalty assessment

process involves consideration of 2 factors.

2These cases are available on the NRC web site

at ‘‘http://www.nrc.gov/oe/’’, which is maintained

by the Office of Enforcement.

generally no penalty assessment is even

proposed. WCTI maintained that its situation

was distinguishable from that of other testing

companies that had been ‘‘fined’’ by the NRC

for willful violations of the same regulations.

In this regard, WCTI claimed that it should

not be classified together with those testing

firms in which the principals were

deliberately ignoring compliance

requirements.

Finally, the Licensee argued that, upon

being notified that Form 241 had not been

filed, WCTI took prompt corrective action to

ensure compliance and effective

comprehensive action to prevent recurrence

of the violation.

NRC Evaluation of Licensee’s Request for

Mitigation

Section VI.A. of the Enforcement Policy

provides that, in general, licensees are held

responsible for the acts of their employees.

The Commission formally considered the

responsibility issue between a licensee and

its employees in its decision concerning the

Atlantic Research Corporation case, CLI–80–

7, dated March 14, 1980. In that case, the

Commission stated, in part, that ‘‘a division

of responsibility between a licensee and its

employees has no place in the NRC

regulatory regime which is designed to

implement our obligation to provide

adequate protection to the health and safety

of the public in the commercial nuclear

field.’’

Not holding the licensee responsible for

the actions of its employees, whether such

actions result from negligence or willful

misconduct, is tantamount to not holding the

licensee responsible for the use or possession

of licensed material. If the NRC adopted this

position, there would be less incentive for

licensees to monitor their own activities to

assure compliance because licensees could

attribute noncompliance to employee

negligence or misconduct. Therefore,

notwithstanding WCTI’s argument that the

blame for the violation rests with the former

company RSO, under long-established

Commission Policy and case law, the

company is still responsible for the actions

of its former RSO. Further, the NRC notes

that the violation continued to exist in 1996,

after the assignment of a newly trained RSO.

This detracts from the Licensee’s argument

that the blame lay with one particular former

RSO.

As WCTI noted, Section VI.B.2 of the

NRC’s Enforcement Policy provides for

consideration of previous escalated

enforcement in the civil penalty assessment

process. However, the civil penalty

assessment process considers several factors,

including whether the violation is willful. If

any one of these considerations applies, the

policy states that the NRC should normally

consider identification in addition to

corrective action in the civil penalty

assessment process (regardless of the

licensee’s previous escalated enforcement).

In this case, the NRC considered both

identification and corrective action in

determining the civil penalty because the

NRC concluded that the violation was

willful.

The term ‘‘willfulness,’’ as defined by

Section IV.C. of the NRC Enforcement Policy

embraces a spectrum of violations ranging

from deliberate intent to violate or falsify, to

and including careless disregard for

requirements (emphasis added). In this case,

as described in the NRC’s Notice, the NRC

concluded that WCTI (not its president),

through the action of one or more of its

representatives, committed a violation with

careless disregard for NRC regulations, a

condition that clearly meets the NRC’s

definition of a willful violation. As described

in the Notice, the NRC’s conclusion was

based on several grounds, including the fact

that WCTI had knowledge of the requirement

to file NRC Form 241 (which WCTI admits

in its response).

As to Licensee’s discussion of the NRC

Enforcement Policy, civil penalties are not

normally proposed in cases where the NRC

concludes that no willful violation has

occurred and no escalated enforcement

action has been taken within the two prior

years or two prior inspections, provided that

prompt and comprehensive corrective action

is taken. However, the policy provides for

consideration of civil penalties in cases

involving willfulness.

The NRC reviews each case being

considered for enforcement action on its own

merits to ensure that the severity of a

violation and enforcement sanction are best

suited to the significance of the particular

violation. In this case, as noted above, the

NRC concluded that the violation was

willful. Therefore, in accordance with

Section VI.B of the Enforcement Policy, the

NRC concluded that: (1) No credit was

warranted for identification because the NRC

identified the violation; and (2) credit was

warranted for WCTI’s prompt and

comprehensive corrective action (had the

NRC concluded otherwise, a civil penalty of

$5,000 would have been proposed).

In its response, WCTI claimed that its case

was ‘‘readily distinguishable’’ from other

similar enforcement actions such as EA 95–

270, ‘‘Foley Construction Services,’’ EA 95–

101, ‘‘Testco, Inc.,’’ and EA 93–241, ‘‘S.K.

McBryde, Inc.’’ The NRC agrees that WCTI’s

case is distinguishable from the cases cited

by WCTI in that the cases cited involved

deliberate violations, not violations involving

careless disregard. However, WCTI’s

comparison of the civil penalty in this case

to that in the cases cited in flawed in that:

(1) The civil penalty in the Foley

Construction Services case was based on the

civil penalty assessment process described in

an earlier Enforcement Policy; 1 (2) the

enforcement action taken against Testco, Inc.,

involved an Order Prohibiting Involvement

in NRC-Licensed Activities to President of

the company, as well as a civil penalty to the

licensee, which was initially based on

enforcement discretion and subsequently

reduced from $5,000 to $1,000; and (3) the

S. K. McBryde case did not involve an NRC

Form-241 violation, it involved a Severity

Level IV violation for failure to maintain

complete and accurate records and a civil

penalty that was based on the civil penalty

assessment process described in the earlier

Enforcement Policy.1 Furthermore, the

enforcement action against WCTI is

consistent with other recent cases involving

careless disregard by testing companies to

submit Form-241 where corrective action

credit was warranted. For example, penalties

of $2,500 were assessed in enforcement

actions involving EA 96–382, ‘‘Energy

Technologies, Inc.,’’ EA 96–382, ‘‘Grandin

Testing Lab, Inc.,’’ and EA 96–447, ‘‘Testing

Laboratories, Inc.’’ 2

NRC Conclusion

The NRC concludes that the violation

occurred as stated and that the Licensee has

not provided adequate justification for

reconsideration of the characterization of the

violation as ‘‘willful’’ or for mitigation of the

civil penalty. Consequently, the proposed

civil penalty in the amount of $2,500 should

be imposed.

[FR Doc. 97–29242 Filed 11–4–97; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket Nos. 50–275 AND 50–323]

Pacific Gas and Electric Company;

Diablo Canyon Power Plant Units 1 and

2, Environmental Assessment and

Finding of No Significant Impact

The U.S. Nuclear Regulatory

Commission (the Commission) is

considering issuance of an exemption

from certain requirements of its

regulations for Facility Operating

License Nos. DPR–80 and DPR–82,

issued to Pacific Gas and Electric

Company (the licensee), for operation of

the Diablo Canyon Power Plant (DCPP),

Units 1 and 2, located in San Luis

Obispo County, California.

Environmental Assessment

Identification of Proposed Action

The proposed action would exempt

Pacific Gas and Electric Company from

the requirements of 10 CFR 70.24,

which requires in each area in which

special nuclear material is handled,

used, or stored, a monitoring system

that will energize clear audible alarms if

accidental criticality occurs. The

proposed action would also exempt the

licensee from the requirements to

maintain emergency procedures for each

area in which this licensed special

nuclear material is handled, used, or

stored to ensure that all personnel

withdraw to an area of safety upon the
59908 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Notices

sounding of the alarm, to familiarize

personnel with the evacuation plan, and

to designate responsible individuals for

determining the cause of the alarm, and

to place radiation survey instruments in

accessible locations for use in such an

emergency.

The proposed action is in accordance

with the licensee’s application for

exemption dated April 3, 1997, as

supplemented by letter dated August 4,

1997.

The Need for the Proposed Action

The purpose of 10 CFR 70.24 is to

ensure that if a criticality were to occur

during the handling of special nuclear

material, personnel would be alerted to

that fact and would take appropriate

action. At a commercial nuclear power

plant the inadvertent criticality with

which 10 CFR 70.24 is concerned could

occur during fuel handling operations.

The special nuclear material that could

be assembled into a critical mass at a

commercial nuclear power plant is in

the form of nuclear fuel; the quantity of

other forms of special nuclear material

that is stored on site in any given

location is small enough to preclude

achieving a critical mass. Because the

fuel is not enriched beyond 5.0 weight

percent uranium-235 and because

commercial nuclear plant licensees have

procedures and design features that

prevent inadvertent criticality, the staff

has determined that it is unlikely that

an inadvertent criticality could occur

due to the handling of special nuclear

material at a commercial power reactor.

The requirements of 10 CFR 70.24,

therefore, are not necessary to ensure

the safety of personnel during the

handling of special nuclear materials at

commercial power reactors.

Environmental Impacts of the Proposed

Action

The Commission has completed its

evaluation of the proposed action and

concludes that inadvertent or accidental

criticality will be precluded through

compliance with the Diablo Canyon

Power Plant, Units 1 and 2 Technical

Specifications, the design of the fuel

storage racks providing geometric

spacing of fuel assemblies in their

storage locations, and administrative

controls imposed on fuel handling

procedures.

The proposed exemption would not

result in an increase in the probability

or consequences of accidents, affect

radiological plant effluents, or cause any

significant occupational exposures.

Therefore, there are no radiological

impacts associated with the proposed

exemption.

The proposed exemption does not

result in a change in non-radiological

effluents and will have no other nonradiological environmental impact.

Accordingly, the Commission

concludes that there are no significant

environmental impacts associated with

the proposed action.

Alternatives to the Proposed Action

Since the Commission has concluded

that there is no measurable

environmental impact associated with

the proposed action, any alternatives

with equal or greater environmental

impact need not be evaluated. As an

alternative to the proposed exemption,

the staff considered denial of the

requested exemption. Denial of the

request would result in no change in

current environmental impacts. The

environmental impacts of the proposed

action and the alternative action are

similar.

Alternative Use of Resources

This action does not involve the use

of any resources not previously

considered in the Final Environmental

Statements for the Diablo Canyon Power

Plant dated May 1973.

Agencies and Persons Consulted

In accordance with its stated policy,

on October 6, 1997, the staff consulted

with the California State official, Mr.

Steve Hsu of the Radiologic Health

Branch of the State Department of

Health Services, regarding the

environmental impact of the proposed

action. The State official had no

comments.

Finding of No Significant Impact

Based upon the environmental

assessment, the Commission concludes

that the proposed action will not have

a significant effect on the quality of the

human environment. Accordingly, the

Commission has determined not to

prepare an environmental impact

statement for the proposed action.

For further details with respect to the

proposed action, see the licensee’s letter

dated April 3, 1997, and supplemental

letter dated August 3, 1997, which are

available for public inspection at the

Commission’s Public Document Room,

which is located at The Gelman

Building, 2120 L Street, NW.,

Washington, DC., and at the local public

document room located at the California

Polytechnic State University, Robert E.

Kennedy Library, Government

Documents and Maps Department, San

Luis Obispo, California 93407.

Dated at Rockville, Maryland, this 30th day

of October 1997.

For the Nuclear Regulatory Commission.

Steven D. Bloom,

Project Manager, Project Directorate IV–2,

Division of Reactor Projects—III/IV, Office of

Nuclear Reactor Regulation.

[FR Doc. 97–29245 Filed 11–4–97; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket No. 50–346]

Toledo Edison Company; Centerior

Service Company and The Cleveland

Electric Illuminating Company; DavisBesse Nuclear Power Station, Unit 1;

Environmental Assessment and

Finding of No Significant Impact

The U.S. Nuclear Regulatory

Commission (the Commission) is

considering issuance of an exemption

from certain requirements of its

regulations to Facility Operating License

No. NPF–3, issued to Toledo Edison

Company, Centerior Service Company,

and The Cleveland Electric Illuminating

Company (the licensees), for operation

of the Davis-Besse Nuclear Power

Station, Unit 1, located in Ottawa

County, Ohio.

Environmental Assessment

Identification of the Proposed Action

The proposed action would exempt

the licensees from the requirements of

10 CFR 70.24, which requires in each

area in which special nuclear material is

handled, used, or stored a monitoring

system that will energize clear audible

alarms if accidental criticality occurs.

The proposed action would also exempt

the licensees from the requirements to

maintain emergency procedures for each

area in which this licensed special

nuclear material is handled, used, or

stored to ensure that all personnel

withdraw to an area of safety upon the

sounding of the alarm, to familiarize

personnel with the evacuation plan, to

designate responsible individuals for

determining the cause of the alarm, and

to place radiation survey instruments in

accessible locations for use in such an

emergency.

The proposed action is in accordance

with the licensees’ application for

exemption dated January 30, 1997, as

supplemented May 28 and October 3,

1997.

The Need for the Proposed Action

The purpose of 10 CFR 70.24 is to

ensure that if a criticality were to occur

during the handling of special nuclear

material, personnel would be alerted to

that fact and would take appropriate