EA-01-219 - Centennial Engineering & Research, Inc.

April 9, 2002

EA-01-219

Thomas L. Barker, President
Centennial Engineering & Research, Inc.
237 North Main Street
Sheridan, Wyoming 82801

SUBJECT:

ORDER IMPOSING CIVIL MONETARY PENALTY – $3,000 (NRC Inspection Report No. 030-29654/01-01 and Investigation Report 4-2001-009)

Dear Mr. Barker:

This refers to your two letters dated December 26, 2001, in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated December 3, 2001. Our letter and Notice described three violations of NRC requirements identified during an NRC inspection and investigation completed in September 2001. Violations A and B involved the failure to amend the NRC license to reflect the appointment of a new radiation safety officer and the failure to confine your possession of byproduct material to the location authorized by your license. These violations were characterized as a Severity Level III problem. To emphasize the willfulness involved with Violations A and B, a civil penalty of $3,000 was proposed. Violation C involved the transfer of two portable gauges to an unlicensed entity. Violation C was classified at Severity Level IV and was not assessed a civil penalty.

In your letters, you admitted Violations A and B, but disagreed that there was any willfulness associated with the violations and requested mitigation of the civil penalty. You denied Violation C based on your assertion that the recipient of the gauges had the primary responsibility to become authorized to receive them. You also requested the name of the individual who reported these violations to the NRC.

After consideration of your response to Violations A and B, we have concluded, for the reasons given in the Appendix attached to the enclosed Order Imposing Civil Monetary Penalty, that willfulness was associated with Violations A and B and that the assessment of a $3,000 civil penalty is appropriate and in accordance with the NRC's Enforcement Policy. Accordingly, we hereby serve the enclosed Order on Centennial Engineering & Research, Inc. (CER), imposing a civil monetary penalty in the amount of $3,000. As provided in Section IV of the enclosed Order, payment should be made within 30 days in accordance with NUREG/BR-0254 (Enclosed). In addition, at the time payment is made, a statement indicating when and by what method payment was made, is to be mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. The NRC will review the effectiveness of your corrective actions during a subsequent inspection.

After consideration of your response to Violation C, involving the improper transfer of gauges, we have concluded that CER was responsible for the violation. The requirements of 10 CFR 30.41 apply to the licensee transferring the material, and limit the transfer of byproduct material to authorized recipients. However, that does not imply that the recipient of byproduct material has no responsibility to comply with NRC requirements, and the NRC did take enforcement action against Roetech, LLC, in this case. A copy of that enforcement action is enclosed for your information.

With regard to your request for the name of the person who reported these violations to the NRC, the NRC does not identify individuals who report problems to us. Our policy in this area is based on our interest in encouraging individuals to report problems without fear of retaliation.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice", a copy of this letter and Enclosure 1 will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public NRC Library.

		Sincerely,
		/RA/
		Frank Congel Director, Office of Enforcement

Docket No. 030-29654
License No. 49-26861-01

Enclosures:

1.  Order Imposing Civil Monetary Penalty
2.  NUREG/BR-0254 Payment Methods
3.  December 3, 2001 letter to Roetech, LLC

cc:  Wyoming Radiation Control Program Director

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UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of	) )
Centennial Engineering & Research, Inc. Sheridan, Wyoming	) ) )	Docket No. 030-29654 License No. 49-26861-01 EA-01-219

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Centennial Engineering & Research, Inc. (Licensee) is the holder of Materials License No. 49-26861-01 issued by the Nuclear Regulatory Commission (NRC or Commission) on January 22, 1987. The last amendment, Amendment No. 3, was issued June 8, 2001. The license authorizes the Licensee to possess and use portable moisture/density gauges containing byproduct material in accordance with the conditions specified therein.

II

An inspection and investigation of the Licensee's activities were completed in September 2001. The results of the inspection and investigation indicated 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 December 3, 2001. The Notice stated the nature of the violations, the provisions of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violations.

The Licensee responded to the Notice in two letters dated December 26, 2001. In its responses, the Licensee admitted the violations that were the basis for the civil penalty, but disagreed that there was any willfulness associated with the violations and requested mitigation of the civil penalty.

III

After consideration of the Licensee's responses and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined that violations cited in the Notice were willful, and that the civil penalty proposed for the violations should be imposed.

IV

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 $3,000 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

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, DC 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 submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

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: Whether on the basis of the violations admitted by the Licensee, this Order should be sustained.

		FOR THE NUCLEAR REGULATORY COMMISSION
		/RA/
		Frank J. Congel, Director Office of Enforcement

Dated this 9^th day of April 2002

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APPENDIX TO ORDER IMPOSING CIVIL PENALTY

NRC EVALUATION AND CONCLUSION OF LICENSEE'S REQUEST FOR
MITIGATION OF CIVIL PENALTY

On December 3, 2001, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for violations identified during an NRC inspection and investigation. Centennial Engineering & Research, Inc., (CER or Licensee) responded to the Notice on December 26, 2001. The Licensee admitted Violations A and B, but denied that there was any willfulness associated with the violations and requested mitigation of the civil penalty. The NRC's evaluation and conclusion regarding the licensee's response are as follows:

Summary of Licensee's Request for Mitigation

The Licensee provided three bases for mitigating the civil penalty in its December 26, 2001 Answer to a Notice of Violation:

1)  The violations created no actual or potential safety consequences. The Licensee stated that the portable gauges were cared for properly at all times, and that complying with NRC regulations regarding the care of byproduct material and fully protecting the public interest is an extenuating circumstance.

2)  The Licensee now believes that willfulness did not occur. The Licensee's radiation safety officer intended to submit the license amendments in a timely manner, but was distracted by what he considered more pressing deadlines associated with his other responsibilities. The Licensee's radiation safety officer admitted to willfulness under "pointed questioning" by NRC investigators, and then that information was used against CER.

3)  The civil penalty was not applied consistently in that Roetech, LLC, also should be fined based on an equal level of knowledge regarding amendment submittal requirements that did not occur on a timely basis. The Roetech Radiation Safety Officer (RSO) had primary responsibility to submit the amendment transferring the location of the gauges and authorizing him to receive byproduct material.

NRC Evaluation of Licensee's Request for Mitigation

The NRC's evaluation of the Licensee's three arguments follows:

1)  The NRC acknowledged in its December 3, 2001 letter and Notice that the violations created no actual or potential safety consequences. This factor was taken into account in determining the severity level of the violations. Absent willfulness, the violations would have been classified at Severity Level IV, and no civil penalty would have been considered. As our letter stated, willfulness resulted in these violations being classified as a Severity Level III problem.

2)  The NRC maintains its position that there was willfulness associated with the violations. We maintain our position because the radiation safety officer acknowledged that he knew what was required, because he took no action to comply until the NRC became involved, because he stated during his initial interviews and at the predecisional enforcement conference that cost was a factor in his procrastination (implying a conscious decision to delay action), because his failure to take action to comply continued for several months, and because he was reminded during this period that he was expected to take action to comply.

3)  The NRC took enforcement action against Roetech, LLC, based on its failure to obtain an NRC license before taking possession of portable gauges containing byproduct material. However, we concluded that the Roetech RSO's failure to submit the amendment transferring the location of the gauging device and authorizing himself to receive byproduct material was not willful because the radiation safety officer for the company believed he could use the gauges under CER's license as long as he was completing jobs covered by a contractual arrangement with CER. Following NRC's enforcement process, Roetech was issued a Severity Level IV NOV for possession of radioactive material without a license. NRC's policy is to not assess a Civil Penalty for violations cited a Severity Level IV.

NRC Conclusion

The NRC concludes that CER has not provided a sufficient basis for mitigation of the proposed civil penalty. Consequently, the proposed civil penalty in the amount of $3,000 should be imposed by Order.