34196 Federal Register / Vol. 63, No. 120 /Tuesday, June 23, 1998 / Notices

NUCLEAR REGULATORY

COMMISSION

[Docket No. 150–00016, License No.

Kentucky 201–431–51 EA 98–021]

Ground Engineering and Testing

Service, Inc.; Louisville, Kentucky;

Order Imposing Civil Monetary Penalty

I

Ground Engineering and Testing

Service, Inc. (Licensee) is the holder of

Kentucky Materials License No. 201–

431–51 which was amended on

November 29, 1994. The license

authorizes the Licensee to possess and

use licensed sealed sources in portable

gauges for measurement of the

properties of construction materials at

temporary job sites anywhere in the

Commonwealth of Kentucky.

II

An inspection of the Licensee’s

activities was conducted by the NRC on

December 12, 1997. 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 25, 1998. The

Notice states the nature of the violation,

the provision 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 letters dated April 22 and 23, 1998.

In its responses, the Licensee admitted

that the violation occurred, but denied

that the violation was the result of

careless disregard and requested that the

civil penalty be mitigated based upon its

prompt corrective action.

III

After consideration of the Licensee’s

response and the statements of fact,

explanation, and argument for

mitigation contained therein, the NRC

staff has determined, as set forth in the

Appendix to this Order, that the

violation occurred as stated, that the

amount of the proposed civil penalty

should be reduced by $2,750 based

upon the Licensee’s prompt corrective

action, and that a civil penalty in the

amount of $2,750 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 $2,750 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.

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, D.C. 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,

D.C. 20555, with a copy to the

Commission’s Document Control Desk,

Washington, D.C. 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 II, Atlanta

Federal Center, 61 Forsyth Street, SW,

Suite 23T85, Atlanta, Georgia, 30303.

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 15th day

of June 1998.

For the Nuclear Regulatory Commission.

Ashok C. Thadani,

Deputy Executive Director for Regulatory

Effectiveness.

Appendix—Evaluation and Conclusion

On March 25, 1998, a Notice of Violation

and Proposed Imposition of Civil Penalty

(Notice) was issued for a violation identified

during an NRC inspection conducted on

December 12, 1997. Ground Engineering and

Testing Service, Inc. (Licensee) responded to

the Notice in letters dated April 22 and 23,

1998. The Licensee admitted the violation,

but contended that its actions did not

represent careless disregard for regulatory

requirements, and that its action in response

to the violation constituted prompt corrective

action warranting credit. The NRC’s

evaluation and conclusion regarding the

Licensee’s request is as follows:

Restatement of Violation

10 CFR 30.3 requires, in part, that no

person shall possess or use byproduct

material except as authorized by a specific or

general license issued by the NRC.

10 CFR 150.20(a) provides, in part, that any

person who holds a specific license from an

Agreement State is granted an NRC general

license to conduct the same activity in nonAgreement States and areas of exclusive

federal legislative jurisdiction subject to the

provisions of 10 CFR 150.20(b).

10 CFR 150.20(b)(1) requires, in part, that

any person engaging in activities in nonAgreement States or areas of exclusive

federal legislative jurisdiction shall, at least

three days before engaging in each activity,

file four copies of NRC Form 241, ‘‘Report of

Proposed Activities in non-Agreement

States,’’ with the Regional Administrator of

the Appropriate NRC Regional Office.

10 CFR 150.20(b)(3) requires, in part, that

any person engaging in activities in nonAgreement States or areas of exclusive

federal legislative jurisdiction shall not,

under the general license concerning

activities in non-Agreement States, possess or

use radioactive materials, or engage in the

activities authorized in paragraph 10 CFR

150.20(a), for more than 180 days in any

calendar year.

Contrary to the above, between January 1,

1997 and December 18, 1997, the licensee

used licensed materials for a total of 290 days

at sites under NRC jurisdiction in West

Virginia and Indiana, and in an area of

exclusive federal jurisdiction at Fort Knox,

Kentucky, without either a specific or general

license issued by the NRC and without filing

NRC Form 241, as required. The specific sites

and periods of usage were as follows:

Month Days used Location

Cumulative days in 1997

January .................................................................. 21 Fort Knox, KY ....................................................... 21 ....................

March ..................................................................... 9 Buffalo, WV .......................................................... .................... 30

April ....................................................................... 30 Buffalo, WV .......................................................... .................... 60

May ........................................................................ 31 Buffalo, WV .......................................................... .................... 91
Federal Register / Vol. 63, No. 120 /Tuesday, June 23, 1998 / Notices 34197

Month Days used Location

Cumulative days in 1997

June ....................................................................... 30 Buffalo, WV .......................................................... .................... 121

July ........................................................................ 31 Buffalo, WV .......................................................... .................... 152

August ................................................................... 31 Buffalo, WV 31; Ft. Knox 3 .................................. 183 ....................

September ............................................................. 30 Buffalo, WV 30; Ft. Knox 7 .................................. 213 ....................

October .................................................................. 28 Buffalo, WV 28; Ft. Knox 9; Clarksville/Jeffersonville IN.7 241

November .............................................................. 30 Buffalo, WV 30 ..................................................... .................... 271

December .............................................................. 19 Buffalo, WV 19; Ft. Knox 1 .................................. 290 ....................

This is a Severity Level III violation

(Supplement VI).

Civil Penalty—$5,500.

Summary of Licensee’s Request for Mitigation

The Licensee admitted that the violation

occurred as stated in the Notice, but denied

that the violation was the result of careless

disregard for NRC requirements and

protested the civil penalty of $5,500. In

support of its assertion that the violation was

not the result of careless disregard, the

Licensee explained that the Louisville office,

where the violation was identified, had been

informed by the corporate office that

licensing for non-Agreement States would be

obtained prior to initiation of work. However,

the corporate office person responsible for

obtaining such licenses did not obtain the

licenses. The Licensee asserted that this

situation resulted from the fact that the

corporate office was undergoing a troubled

period, but that there had been no willful

disregard for NRC requirements.

Furthermore, the Licensee noted that any

actions required by an NRC license had been

completed, and that no effort was made to

conceal the use of radioactive equipment at

sites requiring an NRC license, and that its

compliance in other ways refutes the claim

of ‘‘careless disregard.’’

The Licensee also asserted that, contrary to

the claim in the Notice that there had been

delay in halting use of nuclear gauges,

immediately upon determining that an NRC

license had not been obtained, it halted all

testing with portable nuclear gauges at sites

under NRC jurisdiction. According to the

Licensee, this constituted appropriate,

prompt corrective action warranting credit.

NRC Evaluation of Licensee’s Request for

Mitigation

The Licensee has provided no new

information which would refute a finding of

careless disregard. Ground Engineering was

aware of the requirement of filing for

reciprocity, as evidenced by its having done

so in 1995. Moreover, the Licensee was

notified by the Commonwealth of Kentucky

on September 23, 1997, during a Kentucky

inspection, of the need to file for reciprocity

or obtain an NRC license prior to conducting

operations in areas of NRC jurisdiction.

Notwithstanding this notification, Ground

Engineering continued to use licensed

materials in areas under NRC jurisdiction

without an NRC license until December 1997.

The finding of careless disregard was based

on the fact that Ground Engineering had been

given this notice, but did not take sufficient

steps to assure that a proper license was

obtained. In addition, the Kentucky license

was amended in September 1997 to clearly

state that it did not authorize operations in

areas under exclusive federal jurisdiction.

This should have served as an additional

reminder of the need to obtain reciprocity or

a specific NRC license prior to conducting

licensed activities in these areas.

The Licensee’s contention that its failure to

file for reciprocity resulted from its

misplaced reliance upon the corporate office,

which was undergoing a troubled period,

does not excuse the Licensee from

compliance with NRC requirements. If fact,

its knowledge that the corporate office was

undergoing a period of upheaval should have

alerted it to the fact that it needed to confirm

that the proper license for conducting

licensed activities had been obtained.

With regard to the Licensee’s claim that its

corrective action warranted credit, the NRC’s

conclusion that the Licensee’s corrective

action was not prompt was based on the

belief that the licensed material continued to

be used until December 18, 1997. However,

in its responses, the Licensee provided new

information to the NRC which indicates that

on December 12, 1997, after the Licensee was

informed by the NRC of the violation, all

operations at the Buffalo, West Virginia site

were suspended and the gauge was placed in

locked storage. Based upon this new

information, the NRC has determined that the

Notice should be revised to reflect that you

used licensed material between January 1

and December 12, 1997, rather than the

previously cited period of time, January 1

through December 18, 1997. In addition, we

have also determined that credit is warranted

for your prompt corrective action.

NRC Conclusion

The NRC has concluded that an adequate

basis for retracting a finding of careless

disregard was not provided. However, the

NRC has determined that the Licensee

provided an adequate basis for mitigating the

civil penalty in light of its prompt corrective

action. Consequently, the proposed civil

penalty in the amount of $5,500 should be

mitigated to $2,750 and should be imposed.

[FR Doc. 98–16646 Filed 6–22–98; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket No. 55–22234–SP ASLBP No. 98–

745–01–SP]

Randall L. Herring; Designation of

Presiding Officer

Pursuant to delegation by the

Commission dated December 29, 1972,

published in the Federal Register, 37 FR

28710 (1972), and §§ 2.105, 2.700, 2.702,

2.714, 2.714a, 2.717 and 2.1207 of the

Commission’s Regulations, a single

member of the Atomic Safety and

Licensing Board Panel is hereby

designated to rule on petitions for leave

to intervene and/or requests for hearing

and, if necessary, to serve as the

Presiding Officer to conduct an informal

adjudicatory hearing in the following

proceeding.

Randall L. Herring

(Denial of Reactor Operator’s License

Application)

The hearing, if granted, will be

conducted pursuant to 10 CFR Part 2

Subpart L of the Commission’s

Regulations, ‘‘Informal Hearing

Procedures for Adjudications in

Materials and Operator Licensing

Proceedings.’’ This proceeding concerns

a denial by NRC Staff of Mr. Herring’s

reactor operator’s license application

and Mr. Herring’s request for a hearing

pursuant to 10 CFR Section 2.103.

The Presiding Officer in this

proceeding is Administrative Judge

Charles Bechhoefer. Pursuant to the

provisions of 10 CFR § 2.722, the

Presiding Officer has appointed

Administrative Judge Richard F. Cole to

assist the Presiding Officer in taking

evidence and in preparing a suitable

record for review.

All correspondence, documents and

other materials shall be filed with Judge

Bechhoefer and Judge Cole in

accordance with § 2.701. Their

addresses are:

Administrative Judge Charles

Bechhoefer, Presiding Officer, Atomic

Safety and Licensing Board Panel,

U.S. Nuclear Regulatory Commission,

Washington, D.C. 20555