59906 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Notices

4201 Wilson Boulevard, Arlington, VA

22230

NOTIFICATION PROCEDURES:

The NSF Privacy Act Officer should

be contacted in accordance with

procedures found at 45 CFR part 613.

RECORD ACCESS PROCEDURES:

See ‘‘Notification Procedures’’ above.

CONTESTING RECORD PROCEDURES:

See ‘‘Notification Procedures’’ above.

RECORD SOURCE CATEGORIES:

Inventors and other collaborating

persons, grantees, contractors; other

Federal agencies; scientific experts from

non-Government organizations; contract

patent counsel and their employees and

foreign contract personnel; United

States and foreign patent offices;

prospective licenses; and third parties

whom NSF contacts to determine

individual invention ownership or

Government ownership.

SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS

OF THE ACT:

None.

[FR Doc. 97–29267 Filed 11–4–97; 8:45 am]

BILLING CODE 7555–01–M

NUCLEAR REGULATORY

COMMISSION

[Docket No. 150–00005; License No.

Colorado 580–1; EA 96–459]

Western Colorado Testing, Inc., Grand

Junction, CO; Order Imposing Civil

Monetary Penalty

I

Western Colorado Testing, Inc.,

(WCTI or Licensee) is the holder of a

General License pursuant to the

provisions of 10 CFR 150.20(a). This

authorizes any person who holds a

specific license from an Agreement

State to conduct the same activity in

non-Agreement States subject to the

provisions of 150.20(b). WCTI holds a

specific license from the state of

Colorado, an Agreement State, License

No. 580–1.

II

An inspection of the Licensee’s

activities was conducted from October

11, 1996, through February 3, 1997, and

an investigation was conducted from

August 14, 1996, through January 8,

1997. The results of the inspection and

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 June 13, 1997. The notice

states the nature of the violation, the

provisions of NRC 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 July 16, 1997. In its

response, the Licensee stated that facts

of the case warrant a reconsideration of

both the characterization of the

violation (as willful) and the proposed

civil penalty.

III

After consideration of the Licensee’s

response and the arguments for

mitigation or reconsideration of the civil

penalty contained therein, the NRC staff

has determined, as set forth in the

Appendix to this Order, that the

violation occurred as stated and that the

penalty proposed for the violation

designated in the Notice 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 $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

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 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,

TX 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 at Rockville, Maryland this 28th day

of October 1997.

For the Nuclear Regulatory Commission.

James Lieberman,

Director, Office of Enforcement.

Appendix—Evaluation and Conclusions

On June 13, 1997, a Notice of Violation and

Proposed Imposition of Civil Penalty (Notice)

was issued for the violation identified during

an NRC inspection and investigation.

Western Colorado Testing, Inc., (WCTI or

Licensee) responded to the Notice in a letter

dated July 16, 1997. In its response, the

Licensee stated that facts of the case warrant

a reconsideration of both the characterization

of the violation (as willful) and the proposed

civil penalty. However, the Licensee did not

dispute the violation in its response and, in

its April 1, 1997 letter responding to the

inspection report, admitted the violation. The

NRC’s evaluation of the Licensee’s request

and conclusion regarding the Licensee’s

requests are as follows:

Summary of Licensee’s Request for Mitigation

WCTI stated that, although management

was aware of the requirement to inform the

NRC prior to working in areas under NRC

jurisdiction, this fact alone does not justify

designation of the violation as willful, and

the corresponding penalty of $2,500. In

support of its position, the Licensee stated

that the Radiation Safety Officer (RSO), who

was ‘‘not as honest and forthright’’ as WCTI’s

president, had represented to WCTI’s

president that he filed the required Form 241;

and that WCTI’s president made every effort

to ensure compliance with NRC

requirements. WCTI also noted that its

compliance efforts are reflected by the fact

that there has never been any previous

escalated enforcement action against it. WCTI

pointed out that, according to the NRC’s

Enforcement Policy, previous escalated

enforcement is a factor that is considered in

assessing a civil penalty, and that this factor

was not considered in the proposed

assessment of the civil penalty.

WCTI noted that, 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 during the two prior inspections,
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