EA-96-447 - Testing Laboratories, Inc.

January 6, 1997

EA 96-447

Mr. Ralph Abeyta
President
Testing Laboratories, Inc.
P.O. Box 1144
Alamogordo, New Mexico 88311-1144

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,500 (Reference: NRC Inspection Report No. 150-00030/96-02 and Investigation Report 4-96-027)

Dear Mr. Abeyta:

This is in reference to the matters discussed at a predecisional enforcement conference conducted on November 26, 1996, in the NRC's Arlington, Texas office. The conference was conducted to discuss an apparent violation involving the use of portable moisture/density gauges in areas of exclusive federal jurisdiction without either: (1) obtaining an NRC license; or (2) filing NRC Form 241 pursuant to 10 CFR 150.20(b)(1), which is an option provided by longstanding practice of the NRC staff for work performed within the physical borders of an Agreement State but in an area under exclusive Federal jurisdiction. The results of the inspection and investigation of this matter were provided to you in a report issued on November 12, 1996.

Based on the information developed during the inspection and investigation, and the information that Testing Laboratories provided during the conference, the NRC has determined that a willful violation of NRC requirements occurred. Specifically, as discussed at the conference, Testing Laboratories used such gauges at White Sands Missile Range and Holloman Air Force Base in 1992, 1993 and 1995 without notifying the NRC and submitting the necessary fees, despite NRC notice that this was expected of Testing Laboratories. Testing Laboratories' actions displayed, at the least, a careless disregard for federal requirements. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty and the circumstances surrounding it were described in detail in the subject inspection report.

Based on December 1991 correspondence between NRC and Testing Laboratories, Inc., regarding the calendar year basis for filing form NRC 241 and the associated costs, Testing Laboratories should have been aware of the need to file form NRC 241 before conducting licensed activities in areas under exclusive Federal jurisdiction in 1992, 1993, and 1995. Testing Laboratories' failure to notify the NRC denied the NRC an opportunity to inspect and to assure that you were conducting your activities in accordance with all safety requirements. Thus, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty with a base value of $2,500 is considered for a Severity Level III violation. As we explained to you at the conference, this value can be adjusted up or down based on our consideration of the circumstances. Since this violation is considered 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. The violation was discovered by the NRC during its inspection, resulting in no credit to Testing Laboratories for identification. With regard to corrective actions, you indicated at the conference that you would, in the future, either apply for a specific NRC license or file an NRC Form-241 after determining whether you were working in an area of exclusive federal jurisdiction. Thus, credit is due under this factor.

Therefore, to emphasize the importance of compliance with federal requirements applicable to the use of moisture/density gauges in areas where the NRC has jurisdiction, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the base amount of $2,500 for the Severity Level III violation described above and in the Notice.

In addition, as you were told at the conference, you should be aware that deliberate violations of NRC requirements may subject you and your company to criminal and civil sanctions. Civil sanctions may include orders prohibiting involvement in NRC-licensed activities on the part of you and your company.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

Sincerely,

Samuel J. Collins for L. J. Callan Regional Administrator

Docket No. 150-00030
License No. DM223-10 (New Mexico)

Enclosure:
Notice of Violation and Proposed Imposition of Civil Penalty

cc w/Enclosure:
State of New Mexico

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Testing Laboratories, Inc. Alamogordo, New Mexico

Docket No. 150-00030 License No. DM223-10 (New Mexico) EA 96-447

During an NRC inspection and investigation completed November 5, 1996, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission proposes to impose 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 particular violation and associated civil penalty are set forth below:

10 CFR 30.3 requires, in part, that except for persons exempt as provided in 10 CFR Parts 30 and 150, no person shall possess or use byproduct material except as authorized in a specific or general license issued pursuant to Title 10, Chapter 1, of the Code of Federal Regulations.

Contrary to the above, in 1992, 1993 and 1995, Testing Laboratories, Inc. performed activities at Holloman Air Force Base and White Sands Missile Range (areas of exclusive federal jurisdiction) using byproduct material without being authorized to conduct such activities under either a specific or general NRC license. (01013)

This is a Severity Level III violation (Supplement VI).
Civil Penalty - $2,500

Pursuant to the provisions of 10 CFR 2.201, Testing Laboratories, Inc. (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee 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 the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee 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 violation(s) 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. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee 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.

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Arlington, Texas
this 6th day of January 1997