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
