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Base Civil Penalties for Loss, Abandonment, or Improper Transfer of Disposal of Sources

[Federal Register: December 18, 2000 (Volume 65, Number 243)]
[Notices]
[Page 79139-79140]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de00-124]

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NUCLEAR REGULATORY COMMISSION

[NUREG-1600]


Base Civil Penalties for Loss, Abandonment, or Improper Transfer
or Disposal of Sources; Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement.

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SUMMARY: The Nuclear Regulatory Commission is amending its ``General
Statement of Policy and Procedure for NRC Enforcement Actions,''
(NUREG-1600) (Enforcement Policy or Policy) to establish separate base
civil penalty amounts for loss, abandonment, or improper transfer or
disposal of sealed sources and devices containing NRC-licensed
material.

DATES: This action is effective February 16, 2001. Comments on this
revision should be submitted by January 17, 2001, and will be
considered by the NRC before the next revision of the Enforcement
Policy.

ADDRESSES: Submit written comments to: David L. Meyer, Chief, Rules and
Directives Branch, Division of Administrative Services, Office of
Administration, Mail Stop: T6D59, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001. Hand deliver comments to: 11555 Rockville
Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m., Federal
workdays. Copies of comments received may be examined at the NRC Public
Document Room at 11555 Rockville Pike, Rockville, MD 20852.
    The NRC's Office of Enforcement maintains the current policy
statement on its homepage on the Internet at
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nrc.gov/OE/.

FOR FURTHER INFORMATION CONTACT: Bill Borchardt, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Telephone (301) 415-
2741, e-mail Bill.Borchardt@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

    In a companion final rule published in today's Federal Register,
the NRC is amending its regulations in 10 CFR Parts 30, 31, and 32,
governing certain industrial devices containing byproduct material that
are licensed pursuant to the general license provisions of 10 CFR 31.5.
A proposed rule was published in the Federal Register on July 26, 1999
(64 FR 40295), which indicated that the NRC planned to increase the
civil penalty amounts specified in its Enforcement Policy for
violations involving sources or devices that are lost or improperly
disposed of. The stated intent was to better relate the civil penalty
amount to the costs avoided by the failure to properly dispose of the
source or device.
    In the notice of proposed rulemaking, the Commission stated that it
was considering three levels of base civil penalty for loss or improper
disposal, with the higher tiers for sources that are relatively costly
to dispose of. The three levels of base civil penalty were to be
$5,500, $15,000, and $45,000. The three tiers were to be based
approximately on three times the average cost of proper transfer or
disposal of the source or device. The intent was to better relate the
civil penalty amount to the costs avoided by the failure to properly
dispose of the source or device.
    In this Enforcement Policy, the change to the base civil penalty
structure considers both the cost of proper disposal and the relative
risk to the public from sources that are lost, abandoned, or improperly
transferred or disposed of. The Commission believes that a base civil
penalty amount roughly equivalent to three times the cost of proper
disposal will provide for sufficient deterrence and an economic
incentive for licensees to expend the necessary resources to ensure
compliance. If the civil penalty were less than the cost of proper
disposal, the licensee would receive an economic benefit from an
improper disposal, whether intentional or not. A civil penalty roughly
equivalent to the cost of disposal may not provide a sufficient
deterrent because the violation could go undetected, which would still
allow an economic benefit. Additionally, the civil penalty amount
should be sufficient to assure that the cost of proper disposal of
sealed sources and devices does not cause licensees to purposefully
violate applicable disposal requirements.
    Sources and devices containing small amounts of radioactive
material, such as gas chromatographs, and devices containing hydrogen-3
(tritum) can be disposed of for less than one third of the lowest base
civil penalty amount under the current Enforcement Policy, which is not
$6,000. The proposed rule notice of July 26, 1999, suggested that the
lowest tier amount would be $5,500. However, in another recent revision
to the Enforcement Policy (October 4, 2000; 65 FR 59274), which
adjusted civil monetary penalties for inflation in accordance with the
requirements of the Federal Civil Penalties Inflation Adjustment Act of
1990, the base civil penalty that would otherwise have been applicable
was raised from $5,500 to $6,000. It would be illogical to establish a
lower base civil penalty amount specifically for loss, abandonment, or
improper transfer or disposal. Therefore, this action establishes
$6,000 as the lowest base civil penalty amount for these violations.
    The companion final rule to this Enforcement Policy incorporates
criteria for registration of devices containing material of the types
and quantities listed in 10 CFR 31.5(c)(13)(i). These are devices
containing at least 370 MBq (10 mCi) of cesium-137, 3.7 MBq (0.1 mCi)
of strontium-90, 37 MBq (1 mCi) of cobalt-60, and 37 MBq (1mCi) of
americium-241 or any other transuranic (i.e., element with atomic
number grater than uranium (92)). Annual registration is being required
for these devices because they are considered to present a higher risk
for potential exposure to

[[Page 79140]]

the public and for loss of property (due to contamination) if the
device is lost, abandoned, or improperly transferred or disposed of.
Based on the higher risk, violations involving loss, abandonment, or
improper transfer or disposal of sources and devices in this category
have been assigned a base civil penalty amount of $15,000.
    With the exception of sources and devices containing hydrogen-3
(tritum), the highest activity sources and devices (i.e., those with
activities greater than 3.7 x 10 \4\ MBq (1 Curie)), have an
approximate average cost of disposal of $15,000. The base civil penalty
amount for loss or improper disposal of these sources and devices has
been set at $45,000, which is three times the average cost of disposal.
    The Commission believes that normally a civil penalty at least in
the amount of the base civil penalty is appropriate in the case of
loss, abandonment, or improper transfer or disposal of a sealed source
or device. This is to ensure that the associated enforcement action
properly reflects the significance of such violations. This change has
been implemented in Section VII.A.1(g) of the Enforcement Policy.
However, NRC may mitigate or escalate a civil penalty amount, as
provided in the Enforcement Policy, based on the merits of a specific
case. In doing so, NRC may consider information concerning the actual
expected cost of authorized disposal and the actual consequences of the
loss, abandonment, or improper transfer or disposal.

Scope

    The base civil penalties established in this change to the
Enforcement Policy apply to violations that involve loss, abandonment,
or improper transfer or disposal of a sealed source or device,
regardless of the use or the type of licensee.

Paperwork Reduction Act

    The NRC Enforcement Policy does not contain a new or amended
information collection requirement and therefore is not subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Public Protection Notification

    If a means used to impose an information collection does not
display a currently valid OMB control number, the NRC may not conduct
or sponsor, and a person is not required to respond to, the information
collection.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
``major'' rule and has verified this determination with the Office of
Information and Regulatory Affairs, Office of Management and Budget.
    Accordingly, the NRC Enforcement Policy is amended to read as
follows:

General Statement of Policy and Procedure for NRC Enforcement Actions

* * * * *

VI. Enforcement Actions

* * * * *

C. Civil Penalty

* * * * *

1. Base Civil Penalty

    The NRC imposes different levels of penalties for different
severity level violations and different classes of licensees,
contractors, and other persons. Violations that involve loss,
abandonment, or improper transfer or disposal of a sealed source or
device are treated separately, regardless of the use or the type of
licensee. Tables 1A and 1B show the base civil penalties for various
reactor, fuel cycle, and materials programs, and for loss,
abandonment or improper transfer or disposal of a sealed source or
device. (Civil penalties issued to individuals are determined on a
case-by-case basis.) The structure of these tables generally takes
into account the gravity of the violation as a primary consideration
and the ability to pay as a secondary consideration. Generally,
operations involving greater nuclear material inventories and
greater potential consequences to the public and licensee employees
receive higher civil penalties. Regarding the secondary factor of
ability of various classes of licensees to pay the civil penalties,
it is not the NRC's intention that the economic impact of a civil
penalty be so severe that it puts a licensee out of business
(orders, rather than civil penalties, are used when the intent is to
suspend or terminate licensed activities) or adversely affects a
licensee's ability to safely conduct licensed activities. The
deterrent effect of civil penalties is best served when the amounts
of the penalties take into account a licensee's ability to pay. In
determining the amount of civil penalties for licensees for whom the
tables do not reflect the ability to pay or the gravity of the
violation, the NRC will consider necessary increases or decreases on
a case-by-case basis. Normally, if a licensee can demonstrate
financial hardship, the NRC will consider payments over time,
including interest, rather than reducing the amount of the civil
penalty. However, where a licensee claims financial hardship, the
licensee will normally be required to address why it has sufficient
resources to safely conduct licensed activities and pay license and
inspection fees.

                     Table 1A.--Base Civil Penalties
                 *        *         *        *        *
f. Loss, abandonment, or improper transfer or disposal of a sealed
 source or device, regardless of the use or type of licensee: 3
  1. Sources or devices with a total activity greater than 3.7   $45,000
    x  10 4 MBq (1 Curie), excluding hydrogen-3 (tritium).....
  2. Other sources or devices containing the materials and       $15,000
   quantities listed in 10 CFR 31.5(c)(13)(i).................
  3. Sources and devices not otherwise described above........   $6,000

3 These base civil penalty amounts have been determined to be
  approximately three times the average cost of disposal. For specific
  cases, NRC may adjust these amounts to correspond to three times the
  actual expected cost of authorized disposal.

* * * * *

VII. Exercise of Discretion

* * * * *

A. Escalation of Enforcement Sanctions

* * * * *

1. Civil Penalties

* * * * *
    (g) Cases involving the loss, abandonment, or improper transfer
or disposal of a sealed source or device. Notwithstanding the
outcome of the normal civil penalty assessment process, these cases
normally should result in a civil penalty of at least the base
amount; or
* * * * *

    Dated at Rockville, Maryland, this 8th day of December 2000.
    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 00-31874 Filed 12-15-00; 8:45 am]
BILLING CODE 7590-01-P

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