EA-99-037 - Materials Testing Laboratory, Inc.
June 17, 1999
EA 99-037
Mr. Kevin M. Cosgrove, President
Materials Testing Laboratory, Inc.
1529 Jericho Turnpike
New Hyde Park, New York 11040
SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION
OF CIVIL PENALTY - $2,750
(NRC
Investigation Report No.1-98-034)
Dear Mr. Cosgrove:
This refers to an investigation conducted by the NRC Office of Investigations
(OI) which was initiated in July 1998. Based on the OI investigation,
the NRC found that a former Vice President of your company, on at least
one occasion, deliberately allowed a field inspector technician to operate
a nuclear gauge without proper training certification, and without the
dosimetry required by the license. A copy of the synopsis of the OI investigation
was forwarded to you on April 9, 1999. In that letter, the NRC informed
you of the apparent violations identified as a result of the investigation,
and also informed you that it might not be necessary to conduct a predecisional
enforcement conference in order to enable the NRC to make an enforcement
decision. Rather, the NRC provided you an opportunity to either (1) respond
to the apparent violations in writing, or (2) request a predecisional
enforcement conference. You provided a response in a letter dated May 20,
1999.
Based on the information developed during the investigation, and the information
provided in your response, two violations of NRC requirements are being
cited. The violations, which are described in the enclosed Notice of Violation
and Proposed Imposition of Civil Penalty (Notice), involve at least one
individual operating a nuclear gauge at a field site without (1) being
properly certified, and (2) without appropriate dosimetry. In your May
20, 1999 letter, you admit the violations, and you indicate that the violations
were caused by the former Vice President not following proper procedures.
However, you also indicated, based on your review, that while the former
Vice President exercised poor judgement in his actions, you contend that
he was not malicious nor was there a pattern of circumvention of the conditions
of the license.
Notwithstanding your contention, the NRC maintains that the violations
were deliberate in that the former Vice President was aware of the regulatory
requirements, as he admitted in an interview with OI, and he allowed the
regulatory requirements to be violated. Therefore, given their willful
nature, the violations have been classified as a Severity Level III problem
in accordance with the "General Statement of Policy and Procedures for
NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, Revision 1.
In accordance with the Enforcement Policy, a base civil penalty in the
amount of $2,750 is considered for a Severity Level III violation or problem.
Because these violations were willful, the NRC considered whether credit
was warranted for Identification and Corrective Action in accordance
with the civil penalty assessment process in Section VI.B.2 of the Enforcement
Policy. Credit for identification is not warranted since the violations
were identified by the NRC. Credit for corrective actions is warranted
because your corrective actions were considered prompt and comprehensive.
These corrective actions, which were described in your May 20, 1999, letter
to the NRC included, but were not limited to: (1) demotion
of the Vice President, as well as removal of him from any involvement
in overseeing the radioactive materials program; (2) review by the Radiation
Safety Officer (RSO) of the certifications for all technicians; and (3)
reviews of all dosimetry reports.
Therefore, I have decided, after consultation with the Director, Office
of Enforcement, to issue a Notice of Violation and Proposed Imposition
of a Civil Penalty in the amount of $2,750. If not for your corrective
actions, the civil penalty amount would have been higher.
The NRC has concluded that information regarding the reason for the violations,
the corrective actions taken and planned to correct the violations and
prevent recurrence is already adequately addressed in your letter dated
May 20, 1999. Therefore, you are not required to submit a written statement
or explanation to the questions contained in 10 CFR 2.201 unless the description
in your letter does not accurately reflect your corrective actions or
your position. In that case, or if you choose to provide additional information,
you should follow the instructions specified in the enclosed Notice of
Violation and Proposed Imposition of Civil Penalty.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy
of this letter and its enclosure and your response, if any, will be placed
in the NRC Public Document Room (PDR).
| Sincerely, |
||
| ORIGINAL SIGNED BY JAMES T. WIGGINS |
||
| FOR | Hubert J. Miller Regional Administrator |
Docket No. 030-17801
License No. 31-19502-01
Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty
cc w/encl:
State of New York
State of Connecticut
NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY
| Materials Testing Laboratory, Inc. New Hyde Park, New York |
License No. 31-19502-01 Docket No. 030-17801 EA 99-037 |
During an NRC investigation conducted by the NRC Office of Investigations
at Materials Testing Laboratory, Inc., violations of NRC requirements
were identified. In accordance with the "General Statement of Policy and
Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600,
the NRC proposes a civil penalty pursuant to Section 234 of the Atomic
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282 and 10 CFR 2.205.
The violations and associated civil penalty are set forth below:
| A. | Condition 11.A. of License No. 31-19502-01 requires
that licensed material be used by, or under the supervision of and
in the presence of, the corporate RSO or individuals who had successfully
completed the manufacturer's training program for gauge users and
who had been designated by the Radiation Safety Officer. Contrary to the above, in or about June 1996, licensed material (nuclear gauge) was used at temporary job sites in Connecticut by at least one individual who was not under the supervision of nor in the presence of the corporate RSO or an individual who had successfully completed the manufacturer's training program, and the individual had not completed the manufacturer's training program for gauge users. (01013) |
| B. | Condition 18 of License No. 31-19502-01 requires, in part, that
the licensee shall conduct its program in accordance with statements,
representations, and procedures contained in the letter dated February
26, 1991. Item 4 of the February 26, 1991 letter, Handling Procedures,
requires that film badges or other dosimetry devices be worn when
transporting or using the instrument. Contrary to the above, in or about June 1996, licensed material was used at temporary job sites in Connecticut by at least one individual who did not wear a film badge or other dosimetry. (01023) |
These violations, given their deliberate nature, represent a Severity
Level III problem (Supplement VI).
Civil Penalty - $2,750.
The NRC has concluded that information regarding the reason for the violations,
the corrective actions taken and planned to correct the violations and
prevent recurrence and the date when full compliance was achieved is already
adequately addressed on the docket in your letter dated May 20, 1999.
However, you are required to submit a written statement or explanation
pursuant to 10 CFR 2.201 if the description therein does not
accurately reflect your corrective actions or your position. In that case,
or if you choose to respond, clearly mark your response as a "Reply to
a Notice of Violation," and send it to the U.S. Nuclear Regulatory Commission,
ATTN: Document Control Desk, Washington, DC 20555 with a copy
to the Regional Administrator, Region I, within 30 days of the date of
the letter transmitting this Notice of Violation (Notice).
Within 30 days of the date of this Notice,
you may pay the civil penalty by letter addressed to the Director, Office
of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft,
money order, or electronic transfer payable to the Treasurer of the United
States in the amount of the civil penalty proposed above, or may protest
imposition of the civil penalty in whole or in part, by a written answer
addressed to James Lieberman, Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville,
MD 20852-2738. Should you fail to answer within the time specified, an
order imposing the civil penalty will be issued. Should you elect to file
an answer in accordance with 10 CFR 2.205 protesting the civil penalty,
in whole or in part, such answer should be clearly marked as an "Answer
to a Notice of Violation" and may: (1) deny the violations listed
in this Notice, in whole or in part, (2) demonstrate extenuating
circumstances, (3) show error in this Notice, or (4) show other reasons
why the penalty should not be imposed. In addition to protesting the civil
penalty in whole or in part, such answer may request remission or mitigation
of the penalty.
In requesting mitigation of the proposed penalty, the factors addressed
in Section VI.B.2 of the Enforcement Policy should be addressed. Your
attention is directed to the other provisions of 10 CFR 2.205, regarding
the procedure for imposing a civil penalty.
Upon failure to pay any civil penalty due which subsequently has been
determined in accordance with the applicable provisions of 10 CFR 2.205,
this matter may be referred to the Attorney General, and the penalty,
unless compromised, remitted, or mitigated, may be collected by civil
action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.
If you choose to respond, your response will be placed in the NRC Public
Document Room (PDR). Therefore, to the extent possible, the response should
not include any personal privacy, proprietary, or safeguards information
so that it can be placed in the PDR without redaction. If personal privacy
or proprietary information is necessary to provide an acceptable response,
then please provide a bracketed copy of your response that identifies
the information that should be protected and a redacted copy of your response
that deletes such information. If you request withholding of such material, you must specifically identify
the portions of your response that you seek to have withheld and provide
in detail the bases for your claim of withholding (e.g., explain why the
disclosure of information will create an unwarranted invasion of personal
privacy or provide the information required by 10 CFR 2.790(b) to
support a request for withholding confidential commercial or financial
information).
Dated this 17th day of June 1999
