[Federal Register Volume 63, Number 120 (Tuesday, June 23, 1998)]
[Notices]
[Pages 34196-34197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16646]



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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 non-Agreement 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 non-Agreement 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 non-Agreement 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:

----------------------------------------------------------------------------------------------------------------
                                                                                         Cumulative days in 1997
                  Month                    Days used               Location            -------------------------
                                                                                                                
----------------------------------------------------------------------------------------------------------------
January.................................           21  Fort Knox, KY..................           21  ...........
March...................................            9  Buffalo, WV....................  ...........           30
April...................................           30  Buffalo, WV....................  ...........           60
May.....................................           31  Buffalo, WV....................  ...........           91

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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;                7          241
                                                        Clarksville/Jeffersonville IN.                          
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