United States Nuclear Regulatory Commission - Protecting People and the Environment

U.S. Nuclear Regulatory Commission

Selection of Appropriate Enforcement Action for Gamma Diagnostic Laboratories, Inc.

HPPOS-154 PDR-9111220124

Title: Selection of Appropriate Enforcement Action for

Gamma Diagnostic Laboratories, Inc.

See the memorandum from D. H. Thompson to B. H. Grier dated

March 4, 1981, and the incoming request from B. H. Grier

dated January 16, 1981. Under 10 CFR 71, a private carrier

is subject to 10 CFR Part 20. An unattended vehicle with

the motor running in which licensed material in transport

is stored in locked containers, is not a reasonable effort

to secure material and does not meet the intent of 10 CFR

Section 20.207. The health physics position was written in

the context of 10 CFR 20.207 and 20.402, but it also

applies to the "new" 10 CFR Part 20, Sections 20.1801,

20.1802, and 20.2201.

An inspection was conducted on October 6 and 7, 1980, to

review the circumstances surrounding the theft and

subsequent recovery on September 25, 1980, of a truck

belonging to Gamma Diagnostic Laboratories, Inc. The truck

was being used by the licensee to deliver licensed

materials to various customers. At the time of theft, the

truck was parked in front of a hospital with the engine

running while the driver was inside making a delivery. The

truck contained packages of licensed materials in a locked

container that in turn was bolted to the truck. The theft

was promptly reported and the truck was recovered a short

time later. There was no evidence of any attempt to steal

or tamper with the licensed materials within the locked

container.

The theft of the truck highlights two questions about which

guidance and policy are needed.

1. When a licensee is acting as a private carrier,

such as in the situation just described, what regulations

are applicable? The regulations in 10 CFR Part 71 and the

DOT regulations, the regulations in 10 CFR Part 20, or some

combination of these?

2. If it is assumed that a licensee acting as a

private carrier must comply with the regulations in Part

20, does storage of licensed materials in a locked box that

is physically secured to a truck constitute adequate

security against unauthorized removal?

Common and contract carriers are subject to DOT regulations

but are exempt from NRC regulations. Private licensee

carriers are subject to all DOT regulations and 10 CFR Part

20. However, when DOT and NRC have overlapping

requirements, NRC would not ordinarily take actions against

the licensee for a violation of Part 20 if the licensee was

in compliance with the DOT requirement. For example,

private carriers are required to make a report per 10 CFR

20.402 [or 10 CFR 20.2201] for lost or stolen radioactive

materials based on judgmental factors) no matter how the

material is contained (see Interpretive Guides 20.402 and

20.402 - Transportation in 10 CFR of the IE Manual). In

this case, the licensee apparently did report the stolen

truck to local police. They were not required to report

the stolen truck to DOT (things reportable to DOT are set

forth in second Interpretive Guide listed above).

The intent of 10 CFR 20.207 (a) [or 10 CFR 20.1801] is to

secure material from unauthorized removal of radioactive

materials from any unrestricted area. The rule

intentionally does not state how the material must be

secured, only that it must be secured. Under 20.207 (a)

[or 10 CFR 20.1801], the source should be secured in such a

way that it cannot (under reasonable circumstances) be

removed, including removal of the containment in which the

material is located, whether it be a small brick structure,

vehicle, or any other kind of containment. NRC believes a

reasonable effort would have been to shut off the motor and

remove the keys.

In the case at hand, by stealing the vehicle, the material

was obviously also stolen, even though the material was

secured to the truck. The fact is, the truck was not

reasonably secured. Clearly, if the truck theft had been

successful, the secured container could have been breached.

Therefore, in NRC's view, 10 CFR 20.207 applies in this

case and the licensee should be cited but civil penalties

should not be assessed (see EGM-81-08). There are no

similar provisions to 10 CFR 20.207 (a) and (b) [or 10 CFR

20.1801 and 10 CFR 20.1802, respectively] in DOT

regulations, except for any carrier of explosives.

Although in this situation the license authorized transport

under 10 CFR Part 71, it must be noted that Section 71.1

(b) states: "The packaging and transport of these

materials are also subject to other parts of this chapter

...." This means Chapter 1 of Title 10, or in other words,

it applies to other regulations in Chapter 1 including 10

CFR Part 20.

Regulatory references: 10 CFR 20.207, 10 CFR 20.1801, 10

CFR 71.1

Subject codes: 3.4, 3.7, 4.4, 12.17

Applicability: All

Page Last Reviewed/Updated Thursday, March 29, 2012