Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Notices 26055

Proposed Imposition of Civil Penalty

(Notice) was served upon the Licensee

by letter dated February 23, 1995. The

Notice states the nature of the violation,

the provisions 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 March 21, 1995. In its

response, the Licensee admitted the

violation but requested mitigation

because it disagreed with the NRC’s

application of the duration adjustment

factor in determining the civil penalty

amount.

III

After consideration of the Licensee’s

response 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 duration of the

noncompliance with appropriately used

as a basis for deriving the civil penalty

amount and, therefore, that the $500

civil 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 $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 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.

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 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,

Texas 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, 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, Maryland, this 4th day

of May 1995.

For the Nuclear Regulatory Commission.

James Lieberman,

Director, Office of Enforcement.

Appendix To Order Imposing Civil

Monetary Penalty 999–90004

Appendix: Evaluation and Conclusion

On February 23, 1995, a Notice of Violation

and Proposed Imposition of Civil Penalty

(Notice) was issued for a violation identified

during an NRC inspection. IHS Geotech &

CMT, Inc. (Licensee) responded to the Notice

on March 21, 1995. In its response, the

Licensee admitted the violation but requested

mitigation because it disagreed with the

NRC’s application of the duration adjustment

factor in determining the civil penalty

amount. A restatement of the violation and

the NRC’s evaluation and conclusion

regarding the Licensee’s request follow:

Restatement of Violation

10 CFR 30.3 states, in part, that except for

persons exempted, no person shall possess or

use byproduct material except as authorized

by a specific or general license issued

pursuant to Title 10, Chapter 1, Code of

Federal Regulations.

Contrary to the above, on numerous

occasions between January 1991 and

December 1994, IHS Geotech & CMT, Inc.

(IHS) possessed and used byproduct material

at various military facilities under exclusive

federal jurisdiction without being authorized

by a specific or general license issued

pursuant to Title 10, Chapter 1, Code of

Federal Regulations, and IHS was not

exempted. (01013).

This is a Severity Level III violation

(Supplement VI). Civil Penalty—$500

Summary of Licensee’s Response to Violation

The Licensee admitted the violation but

requested mitigation because it disagreed

with the NRC’s application of the duration

adjustment factor in determining the civil

penalty amount.

Summary of Licensee’s Request for Mitigation

The Licensee said ‘‘Once overlooked, the

event had occurred. Only an inspection, as

occurred, or some other event, would

terminate the period of violation. A more

timely review of NRC records or periodic

inspections by Radiation Safety Officers on

the military installations of San Antonio

would have worked to my advantage.’’

NRC Evaluation of Licensee’s Request for

Mitigation

The licensee’s argument suggests that

someone other than the Licensee, i.e., the

NRC or military officials, should have

discovered the violation, resulting in it being

corrected earlier than it was. This is contrary

to a basic premise of the NRC’s Enforcement

Policy and regulatory philosophy, that it is

licensees who are responsible for assuring

compliance with all applicable requirements.

It is not acceptable for a licensee to remain

in noncompliance regardless of the frequency

of NRC inspections. In addition, due to the

Licensee’s noncompliance with NRC

requirements, the NRC staff was unaware of

the Licensee’s activities under NRC

jurisdiction and, thus could not conduct

inspections.

The NRC staff considered it significant that

the violation continued for nearly four

calendar years. This effectively denied the

NRC staff the opportunity, over an extended

period of time, to ensure that IHS Geotech &

CMT, Inc., was appropriately licensed by the

state of Texas and was conducting its

activities safely when working in areas of

exclusive federal jurisdiction.

The NRC’s Enforcement Policy (Section

VI.B.2 (f)), states that a base civil penalty may

be escalated by as much as 100% to reflect

the added technical or regulatory significance

resulting from the violation or the impact of

it remaining uncorrected for more than one

day. The Policy adds that this factor should

normally be applied in cases involving

particularly safety significant violations or

one where a significant regulatory message is

warranted.

Although the NRC staff developed no

evidence to suggest that the Licensee’s

activities were performed unsafely, the NRC

staff has concluded that the lack of

opportunity to verify that the Licensee was

operating safely over nearly four years

warranted an increase in the base civil

penalty value to emphasize the regulatory

significance of this violation.

When balanced against the remaining

adjustment factors, this resulted in a

proposed civil penalty of $500. The NRC staff

notes that the penalty proposed was below

the costs the Licensee would have incurred

had the Licensee either obtained an NRC

license to conduct these same activities

during the period of noncompliance or

followed the accepted NRC practice of

submitting a reciprocity form (Form 241) and

paying the associated reciprocity fees for

each of the years in question.

NRC Conclusion

The NRC staff concludes that the duration

factor was appropriately considered in

determining the civil penalty amount and

that the $500 civil penalty was correctly

assessed. Consequently, the proposed civil

penalty in the amount of $500 should be

imposed.

[FR Doc. 95–11989 Filed 5–15–95; 8:45 am]

BILLING CODE 7590–01–M