EA-93-271 - Chemetron Corporation
ATTN: David C. Fannin, Vice President
1615 South Congress Avenue, Suite 200
Delray Beach, Florida 33444
SUBJECT: ORDER IMPOSING CIVIL MONETARY PENALTY - $10,000
Dear Mr. Fannin:
This refers to Chemetron's letters dated June 9, 1994 and September 9, 1994 in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated May 11, 1994. Our letter and Notice describe a violation of Condition 12 of Chemetron's license concerning the submittal of an incomplete final site remediation plan for the Bert Avenue and Harvard Avenue sites.
To emphasize your responsibility for timely compliance with decommissioning license conditions and for informing the NRC staff of expected delays in meeting license conditions, a civil penalty of $10,000 was proposed.
In your June 9, 1994 response, you restated the events concerning compliance with License Condition 12, including the fact that three sections of the remediation plan were not submitted by the required date, you assert errors in the Notice, and you set out what you considered to be extenuating circumstances.
The staff recognizes that this action is being issued several years after your responses. However, the NRC letter of May 11, 1994, transmitting the Notice stated that an imposition decision would not be made until the NRC approved a final disposal option. The letter also stated that should in-situ remediation be the final disposal option approved, the NRC staff would go forward with the normal processing of a civil penalty action. Now that in-situ remediation has been approved, this enforcement action is being processed.
After consideration of your responses, we have concluded, for the reasons given in the Appendix attached to the enclosed Order Imposing Civil Monetary Penalty, that the penalty should be imposed. Accordingly, we hereby serve the enclosed Order on Chemetron Corporation imposing a civil monetary penalty in the amount of $10,000. As provided in Section IV of the enclosed Order, payment should be made 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.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and the enclosures will be placed in the NRC's Public Document Room.
Sincerely, James Lieberman, Director Office of Enforcement
Docket No. 040-8724
License No. SUB-1357
Enclosure(s): As Stated
NUCLEAR REGULATORY COMMISSION
In the Matter of ) ) Docket No. 040-8724 CHEMETRON CORPORATION ) License No. SUB-1357 Delray, Florida ) EA 93-271
Chemetron Corporation (Licensee) is the holder of License No. SUB-1357 issued by the Nuclear Regulatory Commission (NRC or Commission) on June 12, 1979. The license authorizes the Licensee to possess depleted uranium-contaminated wastes at its facility located at 2910 Harvard Avenue in Cuyahoga Heights, Ohio, and at the McGean-Rohco property located between 28th and 29th Streets at Bert Avenue, Newburgh Heights, Ohio, in accordance with the conditions specified therein.
A review of the remediation plan submitted by the Licensee on October 1, 1993, revealed 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 May 11, 1994. 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 June 9 and September 9, 1994. In its responses, the Licensee restated the events concerning the violation, including the fact that three sections of the remediation plan were not submitted by the required date, asserted errors in the Notice, and set out what it considered extenuating circumstances.
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 and that the penalty proposed for the violation designated in the Notice should be imposed.
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 $10,000 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.
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 Assistant General Counsel for Hearings and Enforcement at the same address and to the Regional Administrator, NRC Region III, 801 Warrenville Rd., Lisle, Illinois 60532-4351.
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 issues to be considered at such hearing shall be:
(a) whether the Licensee was in violation of the Commission's requirements as set forth in the Notice referenced in Section II above, and
(b) whether, on the basis of such violation, this Order should be sustained.
FOR THE NUCLEAR REGULATORY COMMISSION James Lieberman, Director Office of Enforcement
Dated at Rockville, Maryland
this 28th day of July 1997
On May 11, 1994, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for a violation identified during a review of the licensee's remediation plan submitted on October 1, 1993. The letter forwarding the Notice stated that the NRC would defer imposition of any civil penalty until a final disposal option was approved and that if in-situ remediation was the approved disposal decision, the NRC would proceed with the normal civil penalty process. Chemetron responded to the Notice on June 9 and September 9, 1994. The Licensee restated the events concerning the violation, including the fact that three sections of the remediation plan were not submitted by the required date, asserted errors in the Notice, and set out its view of extenuating circumstances. In-situ remediation has now been approved and the NRC is proceeding with the normal civil penalty process. The NRC's evaluation and conclusion regarding the licensee's responses are as follows:
Restatement of Violation
License Condition 12 of License No. SUB-1357 requires that Chemetron submit a final site remediation plan for the Bert Avenue and Harvard Avenue sites by October 1, 1993.
10 CFR 40.42(c)(iii) requires, in part, that a proposed plan for decommissioning, if required by license condition, include (1) a description of methods used to assure protection of workers and the environment against radiation hazards during decommissioning, and (2) a description of the planned final radiation survey.
10 CFR 20.302(a) [then in effect] requires, in part, that a Licensee who applies for approval of proposed procedures to dispose of licensed material in a manner not otherwise authorized under the provisions of this chapter, should include in the application an evaluation of pertinent information as to the nature of the environment, including topographical, geological, meteorological, and hydrological characteristics; usage of ground and surface waters in the general area; the nature and location of other potentially affected facilities; and procedures to be observed to minimize the risk of unexpected or hazardous exposures.
Contrary to the above, on October 1, 1993, Chemetron submitted to the NRC a final site remediation plan for the Bert Avenue and Harvard Avenue sites in which Chemetron applied for approval of disposal of licensed material in a disposal cell or cells on the sites, which involves proposed procedures not otherwise authorized under the Commission's regulations, and did not include in the plan (1) a Safety Analysis describing methods used to assure protection of workers and the environment against radiation hazards during decommissioning; (2) a description of the Planned Final Radiation Survey; or (3) a Radiological Assessment including an analysis and evaluation of pertinent information as to the nature of the environment.
This is a Severity Level III violation (Supplement VI).
Civil Penalty - $10,000.
Summary of Licensee's Response to Violation
In its June 9, 1994, reply to the Notice of Violation, the Licensee admitted that its final site remediation plan submitted on October 1, 1993, did not contain all of the sections listed in the Table of Contents. The Licensee stated that it chose to delay submission of the Safety Analysis Report and the Radiological Assessment because of circumstances relating to ongoing litigation. The Licensee also decided that these two documents should be prepared by someone other than the Licensee's remediation consultant. Although a new consultant was engaged promptly, the work could not be completed in time to meet the deadline.
As to the Planned Final Radiation Survey, the Licensee had that document almost completed and, since the NRC had not objected to delaying submission of the section dealing with the factory buildings, believed that the entire document could be withheld until all sections were complete.
In its June 9, 1994, Answer to a Notice of Violation, the Licensee disputed the NRC's assertion in the cover letter transmitting the Notice that the NRC Staff was unable to begin the evaluation process. The Licensee noted that while the final site remediation plan consisted of numerous sections and appendices, many of the sections are reviewable separately from the main document. The Licensee specifically asserts that the Safety Analysis and the Radiological Assessment are based on computer calculations, which, in turn, rely on input parameters relating to the physical properties of the site and that only after review of other sections is nearing completion can the input parameters for the computer runs be validated. Accordingly, the Licensee asserts that review of these two sections naturally occurs near the end of the review of the application. The Licensee also contended that there would have been no risk in the NRC staff commencing its review of the material that had been submitted on October 1, 1993, even though some material was to be submitted later, as the general subject matter and the analysis scheduled for later submission were well known to the staff. The Licensee also contended that the staff did commence its review of the final site remediation plan on its receipt.
NRC Evaluation of Licensee's Response to Violation
Chemetron does not dispute the fact that three sections of the remediation plan were not submitted by the required date. Chemetron chose to delay the submittal of the Safety Analysis Report and the Radiological Assessment to engage an independent consultant to assist in preparing those documents. This decision, however, did not relieve Chemetron of its obligation to submit these sections of the Final Site Remediation Plan to satisfy License Condition 12. Chemetron did not have the authority to relieve itself of this obligation under its license, but could have obtained relief only by notifying the NRC staff of the delay and seeking approval of a revised schedule for submittal of the missing sections. Likewise, Chemetron also should have notified the NRC staff of the delay for submitting the Planned Final Radiation Survey section and obtained approval of a revised schedule for its submittal. The fact that the Final Site Remediation Plan contained tabs marking the three sections with a single page noting that the missing items would be submitted later, is an insufficient basis for not notifying the NRC staff of the delays and seeking a change in the schedule. Chemetron also noted in its Answer that the NRC staff had not objected earlier to a delay in the schedule for submitting the section addressing remediation of factory buildings on the site. However, in that case, at a management meeting held on August 31, 1993, Chemetron had informed the NRC staff that the section would be delayed until November 1, 1993, and at that meeting, the NRC agreed to the proposed schedule for that section.
In its Answer to a Notice of Violation, Chemetron disputed the NRC assertion that the NRC staff was unable to begin the review process for the remediation plan until the omitted sections had been submitted. While the NRC staff was able to begin review of the overall remediation plan, the NRC staff was unable to begin review of the critical public health and safety sections of the remediation plan. The Safety Analysis Report and Radiological Assessment contain the critical information needed to review the radiological health consequences of the proposed remediation activities. Without those sections, the health and safety reviews could not be initiated. Specifically, analytical techniques and assumptions rely on input parameters and these parameters cannot be reviewed in a meaningful way without knowing how they are used. Accordingly, the review of site parameters occurs only together with the review of calculational assumptions and methods, which are presented in the Safety Analysis and Radiological Assessment. It would be extremely difficult to review potential site parameters trying to anticipate what parameters might be used in the Safety Analysis and Radiological Assessment and how the parameters might be applied.
Summary of Licensee's Request for Mitigation
The Licensee's Answer to the Notice set out what the Licensee called "extenuating circumstances" regarding compliance with License Condition 12. The Licensee argued that a "course of dealing" had arisen regarding compliance with license conditions which caused the Licensee to believe that it was substantially complying with its license condition when it submitted the remediation plan on October 1, 1993. The Licensee noted that because of earlier actions, it felt that notification of the delay was sufficient, and earlier submissions of less complete remediation plans had been accepted.
The Licensee further disagreed with the NRC's statement that it had to prompt the Licensee to obtain the required information, as the Licensee had already planned for submission of the three missing sections. The Licensee also disagrees with the characterization of its corrective actions as reflecting neither initiative, timeliness, nor comprehensiveness. The Licensee contended that it has vigorously pursued site cleanup since 1990, when it was reorganized and that management has been actively involved in the remediation effort. Finally, the Licensee disagreed with the escalation of the civil penalty by 50% for NRC identification, as the sections that were to be submitted later were clearly marked in the tabbed sections.
NRC Evaluation of Licensee's Request for Mitigation
In its Answer, Chemetron indicated that a "course of dealing" had arisen regarding their compliance with license conditions. The example used was the submittal of the remediation information for the factory buildings. As noted above, in that instance, Chemetron had informed NRC staff in a management meeting held on August 31, 1993, that this section would be delayed until November 1, 1993, and at that meeting the NRC agreed to the proposed schedule. This "course of dealing" suggests that Chemetron was aware of the need to inform NRC staff of expected delays and reach an understanding on schedule changes.
Chemetron also indicated that in the course of settling pending litigation, Chemetron realized a need for a consistent set of calculations for the remediation plan for the hearing, and which would further the objective of prompt site remediation. Notwithstanding the need for a high quality technical submittal and Chemetron's litigation incentives to promptly decommission the site, Chemetron still could and should have requested an alternative schedule, without NRC prompting, for the missing sections.
It is not up to the licensee to decide which requirement it will meet and when it will comply. The license sets forth requirements that, until changed, are required to be met. The Commission recognizes that there may be unforeseen matters in the decommissioning process warranting schedule relief. However, the process to obtain that relief is to notify the NRC to obtain approval for schedule changes, either by license amendment or by the Commission exercising discretion. Moreover, had the NRC exercised discretion and not taken enforcement action in the past, this would not be a basis for the Licensee to conclude that the NRC would exercise discretion with regard to License Condition 12. It is not acceptable to just disregard the requirement date. The purpose of the civil penalty is to emphasize that a licensee is not free to disregard license requirements for its convenience.
Chemetron also contested the statement in the NRC letter forwarding the Notice that the NRC needed to prompt them to submit the missing documents, as Chemetron staff had already planned to submit the missing sections. In this case, Chemetron representatives gave no prior notice to the NRC staff or indication in their Site Remediation Plan transmittal letter that these sections would not be submitted or when these sections would be submitted, nor did they seek an extension of time. In light of Chemetron's inaction in this case and its history as to other submissions, the NRC staff considered it necessary to prompt Chemetron to submit the missing sections in a telephone call on October 13, 1993 and to issue a Confirmatory Order on October 26, 1993, requiring Chemetron to submit those sections on specific dates.
Chemetron also disagreed with NRC staff that its proposed corrective actions did not reflect initiative, timeliness, or comprehensiveness. At the enforcement conference, Chemetron's stated corrective actions included only a reemphasis within management of ensuring that NRC is aware of changes to schedules and the need for Chemetron to request appropriate regulatory relief. These corrective actions did not address a full range of possible causes for the problem or propose other more comprehensive measures that could have been taken to ensure timely submittal of regulatory documents. The proposed corrective actions did not reflect awareness of or address prior delays or poor quality technical work that had been previously submitted and required substantive revisions. As a result, the NRC requested additional information, which Chemetron provided in a response dated September 9, 1994.
As to the Licensee's objection to escalation of the civil penalty for NRC identification, at the enforcement conference the Licensee stated its view that the cause of the violation was Chemetron's failure to effectively inform the NRC that the final remediation site plan would not include the Planned Final Radiation Survey, Safety Analysis, and Radiological Assessment, and in its Answer stated that the fact that the information was to be submitted in the future was clearly tabbed. However, Chemetron failed to recognize at the time of submission that it should have informed the NRC of the missing sections prior to submitting the plan and obtained an extension. While Chemetron identified that it did not provide the requested information, it did not identify a matter needing corrective action, i.e., the need to obtain NRC approval before submitting an incomplete report. Identification of the need for corrective action is inherent in the identification factor. The NRC identified the need for corrective action to preclude repetition of the incomplete submission. Therefore, the violation was identified by the NRC. Accordingly, escalation of the civil penalty for NRC identification is appropriate.
This civil penalty also puts similar licensees on notice that the NRC expects decommissioning activities to meet required schedules absent approved schedular relief.
The NRC has concluded that this violation occurred as stated and neither an adequate basis for a reduction of the severity level nor for mitigation of the civil penalty was provided by the licensee. Consequently, the proposed civil penalty in the amount of $10,000 should be imposed.