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EA-96-447 - Testing Laboratories, Inc.
Testing Laboratories, Inc.
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.
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.


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There are 291 "n"s.
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