ML20091D782

Nuclear Regulatory Commission Issuances for January 1992. Pages 1-46

ML20091D782
Person / Time
Issue date:	03/31/1992
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V35-N01, NUREG-750, NUREG-750-V35-N1, NUDOCS 9204130029
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l NUREG-0750 Vol. 35, No.1 Pages 1-46

' t NUCLEAR REGULATORY.

-COMMISSION ISSUANCES a

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Available from Suporintentendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 L

A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication -

are available from National Technical Information Service, Springfield, VA 22161 4

rl Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration

. U.S. Nuclear Regulatory Commission Washington, DC 20555' (30t /492-8925)

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NUREG J750 Vol. 35 No.1 Pagos 1 -46 NUCLEAR REGULATORY COMMISSION ISSUA4CES January 1992 This report includes the issuances received during the specified period from the Commission (CLI) the Atomic Safety and Licensing Boards j

(LBP), the Administrative Law Judgos (ALJ), the Directors' Decisiuns (DD), and the Denials of Petitions for Rulomaking (DPRM).

The summarios and headnotes precoding the opinions reported heroin are not to be deemed a part of those opinions or have any independent legal significance.

l iJ.Sa NUCL. EAR REGULATORY COMMISSION j-l Prepared by the i

Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) i

COMMISSIONERS tvan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick -

E. Gail de Planque B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Ucensirg Board Panel 3

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COVIT.NTS lssuance of the Nuclear Regulatory Commluion TEXAS UTILITIES ELECTRIC COMPANY (Comanche Peak Steam Electric Station, Units 1 and 2)

Dockett 50-445-OL&CPA,50-446-OL

- MEMORANDUM AND ORDER, CLI 921, January 17,1992........, 1 Issuances of the Atomic Safety and Licensing Iloards CERTIFIED TESTING LABORATORIES DocLet 030-12145-CivP (AStilP No. 91622 01-CivP)

(Materials License No. 29-1415001)(EA 89 079)

INITIAL DECISION, LDP-92-2, January 29,1992...

20 DAVID M. MANNING (Senior Reactor Operator)

Docket 55-8615-SC (ASLBP No.91-646 02-SC)

(Senier Reactor Operator License No. SOP 10' 61 1) (EA 91-054)

MEMORANDUM AND ORDER, LBP-92-1, January 21,1992...... I1 NE'V YORK POW"J.R AUTilORITY (James A. FitzPatrick Nuclear Power Plant)

Docket 50-333 OM (ASLBP No.91-645 02-OM)

(Pacility Operating License No. DPR-59) (EA 91-053)

MEMORANDUM AND ORDER, LDP-92-1, January 21,1992........ I1

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Commission issuances I

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CLl-921 UNITED STA1ES OF AMERICA NUCl. EAR REGULATORY COMMISSION COMMISSIONERS l van Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gall de Planque in the Matter of -

Docket Nos. 50445 OL & CPA 50-446-OL TEXAS UTILITIES ELECTR'C COMPANY (Comanche Peak Steam Electric Station, Units 1 and 2)

January 17,1992 1

The Commission denics a motion to reopen the rmrd laause Petitioners were not parties to the proceeding, and their raotion did not address the five factors necessary for late intervention. Even if they had adt :ssed and satisfied the late intervention sta.dards, they failed to satisfy the reopening requirements.

RULES OF PRACTICE: MOTIONS TO REOPEN RECORD; REOPENING OF RECORD (STANDARD FOR APPLICANT);

STANDING TO INTERVENE; NONPARTY PARTICIPATION Petitiorers are barred from sccking a reopening of the record tecause they were not parties to the proceeding itself.

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RUI.ES OF PRACTICE: INTERVENTION (STANDING);

INTERVENTION PI:TITION (PI, FADING REQUIRl:SlEN'IS);

MOTIONS TO REOPEN RECOllD; STANDING TO INTERVENE; NONPARTY PARTICIPATION Petitioners have never been parties to the Comanche lYak proceeding; at tlJs time they may only become parties by fding a petition fe-late intervention under 10 C.F.R. 5 2.714(aXI) and satisfactorily addressing the five factors contained therein. Unless and until Petitioners petition for, and are granted. intervention in the proceeding, they cannot move to reopen the record.

ROLES OF PRACTICE: LICENSING PROCf.EDING; NOTICE OF llEARING Because the NRC has not yet issued the license for Unit 2, there remains in existence an operating lieer.se " proceeding" that was initiated for Comanche Itak by the 1979 Federal Register notice.

RULES OF PRACTICE: INTERVENTION PPTITION (PLEADING REQUIREMENTS); NONTlhlELY INTERVENTION PETITIONS De petition before us clearly does not satisfy NRC requirements for consid-eration of a late-filed petition for leave to intervene. Quite simply. Petitioners have not even addressed the tive factors contained in 10 C.F.R. 5 2.714(a)(1)(i)-

(v).

RULES OF PRACTICE: INTERVENTION PFTITION (PLEADING REQUIREMENTS); REOPENING OF RECORD (TIMELINFSS)

Even if Fetitioners could satisfy the requirements for late intervention, their present petition clearly fails to satisfy the requirements of section 2.734 for reopening the record.

AEA: ENFORCEMENT ACTION (llEARING RIGilT)

RULES OF PRACTICE: JURISDICTION (10 C.F.R. I 2.206 PETITIONS)

Because the license for Comanche Peak Unit I has already issued, Petitioners may seek cnforcement action under Section 2.206. Derefore, the pleajing is referred to Staff for consideration under section 2.206 inasmuch as the pleading relates to Unit 'I.

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MEMORANDUM AND OllDEll 1.

INTRODUCTION

~1his matter is before the Commission on a request by Sandra Long Dow and Richard 'a (R. Micky") Dow (1ttitioners") to reopen the Comanche Itak operating license proceedings.' The Texas Utihties Electric Company CTU Electric"), the Licensec, and the NRC Staff have responded in opposition to the request. For the reasons stated below, we deny the request to reopen the proceedings.2

11. FACTUAL llACKGROUND I

- *lhe NRC initiated the Comanche Itak operating license ("OL") proccedings in 1979. Sec 44 Fed. Reg. 6995 (F:b 5,19??). At that time, three parties were admitted into tha proceeding. Neither the Dows nor the " Disposable Workers of Comanche Peak," the organization they represent, were among those parties.

Subsequently, two of the three original intervenors voluntari!y withdrew frota the proceedings. A 6xond proceeding dealing with a construction pctmit amend-ment ("CPA") for Comanche Itak Unit I was added in 1986 and consolidated with the OL proceeding. Again, neither the Dows nor the " Disposable Work-ers" sought intervention. In July 1988, the NRC's Atomic Safety and Licensing Boad issued an order dismissing the Comanche Peak proceedings pursuant to a settlement agreement tttween the paides: TU Electric, the StalT, and the Cit-izens Association fw Sound Energy (" CASE *), the lone remaining intervenor.

See LBP-8818A,28 NRC 101 (1988): LBP-88-188,28 NRC 103 (1988).3 3 Sandra thiw nonwants an ergesuauan named "Ibpmabis Wwhers of Comande Ped Steam Emetne Statun?

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- Peutwners mtad their pleadmg as *befm the Aumue safety and 1.icenseg thwed? Inowews. then at rm Bosm curreWy wawutatist in the Comande hed ryeraung kanac pixeeangs because all actinty a the adpecawry panion af that pureedmg enled amtal para agn Indeed, men is tus fu the fa6s that the benas fiz Una 2 has pa to be issued thee wnda be m: -p:raung beense penreceng to "teogd Accwdmb thra inaua is befors the Cornmu.acn (cr dwpunimi.

Th parading also cavams stawnwus that enight be c s-mned as aSegautma af mm:anihas by NRe ernployees.

rwr that sessen, it has h are infartal to the Offwe of luptster Canar:1 for apptupriate scius 3We suSeeqi.ovly derued a raps for "adnianaman" by a foema intervaror who had povmualy mthdrs=1 fen as gamd.ngs. Cills 12,23 NRC 605 (1934). er mo4/ind, C1.189 M9 NRC 348 (1984). ed'd Cauaar Auocismosfor for t!aihty #sgielosua v. NRC. 598 F.2d si Ck% Car.1989).urt. aivawd i11 s Ct. 246 0990) 3

I Ill. ARGUMl:NTS OF PARI'll:S e

A.

Petitioners' Request On Novembet 20, 1991, the Ittiuorers filal the pleading rmw before us.

Ititionen labeled the pleading a "snodon to tropen the record " tot asked the Commission to toth "rcopen the reemd... arxl thereafter grant the peutioners leave to file their motkri for intervention." Src Motion to Regen ("Modon")

at 1. Itutioners stated their intenthm to "hle, within 45 days, all necessary affid. wits and

• r documentation.,." Motion at 8. Petitioners claimed authority for i.a. ihmission under 10 C.F.R. 6 2.734, which governs nations to reopen a record, arxl addressed the three factan required by that secdon?

A request to rmpen the record must be (1) timely, (2) address "a signincant j

salcty or entiremental issue," and (3) " demonstrate Ont a materially dif ferent result would be rir would have licen likely had the newly proffered eviderxe tren considered initially." 10 C.F.R. 5 2,734(n',, Ilriefly. Ittitionen allege that dicy satisfy the first irong of the test "because some of the evidence, of the greatest material value to (tle NRC), has only come to light within the last thinly (30) days." Motk n at 2 3. Ittitioners allege diat this jnlew entence orgirding the paymad of

• hush" stumry to olhtleblomers, sat to testify I

before this floard surfaced for the first time afiet the remd was chaed, and, new evtJeme cmceabig Ae payme,rs of %sh" erwery La the latreverks C A.S li, has only, row, surtned

/d at 3.

lttidonen allege that they satisfy de second prong of the test became dry have provided evidence of (1) manc aald to potenual witnesses int to testify before the Licensing Board, arid ath c witness coerted irito accepung moriey in exchange for not testifying before Licensing Ismrd (/d. at 3 4); (2) false and misleading evidence submitted by 'IU Electric, which was the losis kir a Licensing Iloard decisien in December 1983 (14. at 4-5); and (3) false testimony by the management of TU Electric and Ilrown & Root, its principal contrxtor, in a Department of Labor (" DOL") proceeding arising from actions at Commche Peak (14. at 5-6).

Fmally, Petitioaen allege tha'. they satisf' the third Irong of the "rcopening" test because they believe that they would LN e been granted Icave to intervene in the proceedings had they known ainut this information at that time and

• Pautmien sino aia *20 C1.R. fu ll" as authmiy rur umr atennsun llowever. Tule 79 d the Code e/ reksi Angvlet.anr canan segulaums antasWe to the ikparunone er take CTAX.7, em de Ntc. We presume rWumen have cmfume.1 IXL segulaums mth NKC reguistums, riamo at Tide 10 or de Cede #

Iedevor Regulets.mn.

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leen able to bring it to the lloard's attention. Id. at b. Ittitioners also allege tlut various representatives of 'IU Llectric, C%E, and die NRC Staff either

" knowingly reinaired silent" and delitesutely failal to notify the lkurd of relevant information or actively perjured themselves tefore the 1.icensing Board dtuing these proceedings 1d. at 6 8.

llowever, the Petitionen do not submit any affidavits t>y themselves or anyone else in support of these allegations in this particular motion. Sec 10 C.F.R. 6 2.7M(b). Instead, they submit selections from various prior pleadings before either the NRC or the DOL.

11. The Licenwe's Response

'the Licerisce egues that Petitioners cannot seek to "rcopen" the record becaine they were never a " party" to the proceeding when it was an active.

ongoing pracceding. See Texas Utilities Response (*1U Resp.") at 20 21. 'The Licensee then argues that Ittilkmers have failal to demonstrate any right to intervene in the proceedings tecause they failed to address tie requirements for a late-filed petibon. TU Resp. at 2125. Finally, the Liectnec argues diat, asstrning arguendo that Petitionets can teck reopening of the record, Ittitioners' pleading does not sausfy the requirements of section 2.734. Id. at 25-41. 'Ihe Licensee uryes, among other things, tint t%e allegedly "new" material is not new and that all of the concerns raised by Petitioners have been reviewe6 and addressed by the NRC.

C.

The NRC Staff's Response

'fhe Staff supports the Lleensec's argument that only a party to a proceeding can seck to reopen that proceeding. NRC Staff Respo.de (" Staff Resp.") at 5-6. 'lhe Staff ths.n a stes that Petidorers have failed to demonstrate that tiey have standing to intcJvene (Staff Resp. at 6 9), and that Pedtior,ers lutve failed to address the requirements for a late filed petition to intervene (id, at 9).

Finally, the Staff argues that Petitioners have failed to satisfy the requirements for a motion to reopen. Id. at 10-18. In the process, the Staff points out that, with perhaps two excepuons, the pleadings submined as "new evidenec" by the lttitioners have twen submitted to the NRC on previous occasions by other potential intervenors.

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IV. ANAINSIS A.

l'etitioners' Request to Reopen the Rtwrd We find that Ittitioners are tiarted f rom rceking a reopening of die record tecause they were not prties to the imceeding its(II. As the Staff correctly points out, the regulation itsell does not - by its weds - limit n otions to reopen to parties. Ilowever, wv beliese Out such is the ivoper interpretation.

The purpose of liut 2, Sub urt 0, is to set out the procedures wheretsy a l

person or organirstWn petitions for and then exercises the right to participate in formal NRC adjudications. See generally 10 C.F.R. Q F 700. A brief review of our regulations clearly demonstrr.cs dat the word " motion" is te,ed when describing a pleading filed by those who have twcome lurtles to a proceedmg and are nuempting tu excreise rights gained as a result of that status. On the other hand, our regulations use the wurd " petition" to desu.be a pleading filed by one w ho has not yrt teca admitted to " party" status, i.e., one win has not yet establistrd a legal right to participate in a proceeding. Cf.10 C.P.R. 6 2.714.

llere, lYtitioners have never becti iurties to the Comanche Peak proceeding; at this time they may only become parties by filing a petition f or late intervention urmier 10 C.F.R. (2.714(a)(1) and satisfactonly a(ktressing the five factors contained therein. Unless and until Ittitioners petition for, arxl are granted, interverttion in the proceeding, they canact move to reopen the record.8 lYtitir.ncrs alao cite Rule 60(b) of the Federal Rules of Civil Procedure

("FRCP") in support of their position that a closed png. Wing may be reopened and reexamined. See Motion at 12 (a " court may relieve a party or a party's legal itpresentative from a fiaal judgment, order, or proceeding.

.").

Ilowever, consistent with the language in that rule, all the judicial decir. ions we have found addressing the issue have held that only a "pany" or one in pnvny with a pany may request relief under Rule 60(b). Western Steel Erection Co. v. United States,424 F.2d 737,739 (10th Cir,1970); Ratner v. Italery &

Conjectionery Workers, 394 P.2d 180,782 (D.C. Cir.1968); Screven v. United State 207 F.2d 740,741 ($th Cir.1953); United States v.14MO Actex cflaid, Etc., 32 F.R.D. I1,14 (E.D. La.1%3). See generally 7 J. Moore, Moorc's Federal fractice 160.19 (2d ed.1985); 11 Wright and Miller, Federal Practice ar.d Procedure i 2ti65 (1973). Thus, Rule 60(b) doca not support Petitioners

• argument for reopening the Comanche Itak proceeding at their insistence.

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• pnseedsng" ht was amus'ed tre Cwnanche hah by the redersi Asguur N.aws that was PAhstw n 19N see 441-mo Reg 6**3 Feb 5.1979) Acundmaly. we er; ens the tienee's ergun,ma that Iwumeis have no og's no such terperung if the eno,d kause the Catuninsum hat syewed tha seulawnru esteetneru d.snunmg pnamedags below TU Fesp si 16 20.

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6 II. Petitioners' Htquest for Late Intersention i

lYtitioners' pleading asks that we "both re-open the record of the IComanche Wak) proceedings, and thereafter grant Petitioners leave to filo their motion for intervention." Motion at I, llowever, we find that the pleading before us clearly does md satisfy our vequirements for consideration of a late filed petition for leave to latervene. Quite simply, Ittitioners have not even addiessed the live factors contained in 10 C.F.R. I 2.714(a)(1)(i)-(v). Accordingly, we do not grant Pedtioners late intervendon and, therefore, we deny their request for reopening.

C.

The Merits of Petitioners' Rwpening Request j

While w hold today that Petitioners are not entitled to sect to reopen the record of the Comanche Peak operating lleense proceeding, vm have reviewed their subtnission in an effort to determine if their arguments have any merit.

We conclude that even if Petitionen could satisfy the requirernents for late intervendon, their tresent petition clearly fails to satisfy tk requiremerts of section 2.734 for reopening tM record.

As we noted above, Petitioners must first demorntrate that their request is timely.10 C.F.R.12.734(a){l). Ilowever, while petitioners allege that their "new" it: formation has or.ly come to light "within the last thlety (30) days," we

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find in.i the informaion supporting their motion has been before us on previous occasions. As the Staff notes. Exhibits A and 11 wie formally submitted to the Commission either by the Citizens for thir Utility Regulation ("CIUR") Mr.

Joseph J. Macktal, or Mr. Lon ilurnam in their attempts for late intervention several years ago. Thus, this material is hardly "new" or "recently discovered" material supportlag reopening of the Comanche Peak recon 1.*

Exhibit C is an initial decision by the Department of Later in an employment discriminadon case dated May 12,1989, almost 3 years ago. This decision is a public document and is hardly "new" evidence. Exhibit D appears to bc a hand written noto critical of an attoincy for CASE but without any date or authentication. Moreover, even if it were dated and authenticated as being an evaluation of this attorney by a IX)L Administrative Judge - as alleged by Petitioners - we find that it hardly constitutes "new evidence" warmnting reopening the record of an unrelated NRC proceeding. Exhibit E is a portion of a pchlished opinion by the NRC's Atomic Safety and Licensing ikxmi, dated December 28,1983. Again, this is hardly "new" evidence discovered "within the last 30 days "

= *TM Commisawa denied teui the CWR at,d Madts! requema. $n Clls812 and C1189-9. sera. Mr turnam withdrew ins rapest Murnasiy Peutxcess a:lege den dus wahJrawal was under *smpuaous arnanstaneci."

Maian et 1 Ilomover, they ptsmae aNoluwly no supri ts ths: onegaum 7

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luhibits F anJ G are briefs filed with the IX)L in suplutt of an employment discrimination case filed by a htr. Itasan, a itumer worker at Ctunarkhe Irak.

Ilow.ct, those tviefs we dated February 16,1988, and April 18,1988. Again.

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these materials are public docunents that are ahnost 4 years old. hhscover, bodi the Cominission and de NRC Staf f have long been aware of the general tiuust of the arguments in hit. llaun's case, if not in actual possession of tirse doeun ents themselves. In fact, Itutmarts allege that the Staff had these documents in 198M. See hiotion at 6.1hus, these inatesials hardly constitute "new" evidence. Likewise, Exhibit I is dated July 8,1987, and is addressed to the Licensing Ikiard itse.f. We can see no reason to conclude that this document, which was fikd before the Licensing Itoard over 4 yean sgo. can be termed "new" evhlence.

Fmally, Exhibit J contaim two parts. 'Ihe first part is a settlement agreement between CASE, hits. Juanita liths, and TU Electric. *lhe agreement is published in full as Exhibit 11 ta the $ctilement agreement. See LitP-88-1811, supra, 28 NRC at 126 35. 'the second part is an afiktnit by llarbara N. Itolti, a former member of CASE. reciting disagreements with die decision to settle the Comanche Itak proceeding. "Ihis document is mer a year old and dere is no allegation that this docupient contains "new" evidence. Ibrthermore, as the Staff cortectly notes, the NRC was will aware that some CASII members disagreed with the decision to settle the proceedings. See CLI.KS-12,28 NRC at 610 n.6.

Accordingly, we conclude that Ittitioners have failed to satisfy the first prong of the reopening test because their "new" information is simply not timely in any sense of the word?

The second prong of the reopening test requires that lttitioners demonstrate that the "new' evidence concerns "a significant safety or environmental issue."

10 C.F.R. 6 2.734(a)(2). Ilowever, lttitioners point to no such issue. Instead, they raise numervus allegations regarding other Comancte Peak related matters.

Ihr example, Petitioners allege attorney misconduct by CASE attorneys in DOL proceedings, llowever, as we noted before when faced with the very same allegations,"the proper forum for these comp!rints is likely not the NRC." Cl I-88-12,28 NRC at 612 n.8 Instead, the affected persons should seek sanctions against those attornep tefore the DOL or before the appmpriate state bar associations. Likewise, ittitioners allege that unnamed TU Ek'ctric employees perjured themselves in the liasan case before the DOL. Ilowever, there is no ion omavihar 7' 1991, the Cuismaske mesved a 34esamg frurn One Ottuans Annoustam for samd frergy t

e CASE"). semams leavs to ran a ge.puse to IYutimein' Motum to Ray.n the lleuwd CA%t/s empawe is an errutt to refias Ltw stiegsuiwa nas uwd in the ik4s Arfidavtt sad dme ad addrcus em negal us.no tipo etwh w tsave tonived 1%tuvawis' reqimst We gtscu CAslPs nutum and anept Die tendem! rsapwou. ii.neever, bas.me w have svenived De gamum W rapnmg Ow rward em nSe gemnds. we sk. run read the questa or tim Acuracy <d die arwgatures c<mtammi en sahes the Edis ArNisvu on Om CAsi' respmas. The start simid sevww twah docurnenu to determme 6f anytimg m saber dmumas s'reas us revww d attmtwa si Conwje Peak 8

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p, allegation - much less a showing - that the Licensing thurd may have relied

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upin testimony by duc employees. Again, this matter appears to be a concern for the DOL, not the NRC.

Finally, Ittitioners allege llut 'IU Electric employees committed perjury be-fore the Licensing Board prior to the Board's Order of IMember 28, 1983.

Motion at 4 5. Ilowever, in delt rnotkin, Iwitioners cite absolutely no docu.

mentatim for that allegation. Ittitioners do not even support the allegation with 3

their own affidavit; instead, we have only their own Ipse dnit in the rimtion.

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The only document cited in the motkm in relation to this matter is a copy of the t

Licensing Board's opinion. But that opinion does not contain any verification of Ittitioners' allegation. This unsupported allegation simply cannot support reopening the record. Accordingly, we find that lYtitioners luve failed to meet de second prong of the r(opening test.8 The third prong of the reopenhig test requires that Ittitioners " demonstrate that a materially different result would te or would base teen likely had the newly proffered evidence been considered initially," 10 C.F.it 9 2.734(a)(3).

In this situation Ittitioners needed to show dial the Licensing Ikurd - und the Commisson - might well have refused to accept the proposed settlernent I

agreement between CASE TU Electric, and the NRC Staff arid instead would have continued the proceed ngs with de same et new intervenors. Instead, Ittitioners simply aver th4 they would have been allowed to imervene in the p ocudmg. Motion at 6.

- As the NRC Staff and 1U Electric have noted, many of these same arguments were made both at de public hearing to discuss the proposed settlement agreement and in various motions for late intervention. See, e.g., T)anscript of Ilcaring (July 5,19M); CLI.M 121 CL1-89-6. We concluded then that those arguments - based on allegations similar to these and on these and similar documents _-- were insafficient to support either challeriges to de agreement or petitions for late intervention. Three years have not changed our opinica diat these allegations are insubstantial and unsupported and do not constitute a basis for voiding tic settlernent agreement or reopening the proceedings.

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sb Nha* abam apt to W NM to > ptum d M wp daign at Omha Prid Mem et 4 s. b NRC has mami the operating hcmse f(s Urut i or Canambe r%d and the Statt may une enavoemen setum assues that Imsnre ihmid avrunstarren warrant. Acrnrdsngly. me hereby refer the Miemas' mesam to es Saft urder 10 CJ R. $ 2.206 for renew or these s&saw,nn to the sateen that pay may apply to Urds 1. We siso enput that the suft wel wofparaie any evWance uncmered in the peucess true their rmew or acuvunes ai Urun 2.

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v. cosci.usios liccause Ittitioners were not parties to the Comanche l'eak pra ceding they ce mot seek to scopen the record unless they fint lecome parties by filing a l

successful petition for late intervention.1 heir " motion to reopen" does not address the five factors required to be satisfied in ander to achicsc this status.

'Iterefore, we do not grant them late intervention. Even if ittitioners had altressed and satisfied the late intervention standards, the motion to reopen I

would have teen denied, because Ittilioners have failed to satisfy the tropening starulards.

P is so ORDERED.

Ibr the Commi3sion S AMUEL J. CHILK Secretary of the Connolsuon D.cd at Rockvilk, Maryland.

this 17th day of January 1992.

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I Atomic Safety and Licensing Boarcs ssuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Gottot,' Chief AdministratIvo Judge o

Robott M. Lazo,* Doputy Chict Administrative Judge (hocutivo)

Frodorick J. Snon,* Deputy Chiot Admint:,trativo Judgo (Tochnical)

Members Dr Gasgo C Anderson Janes P Gbasan Dr Konrmth A. McCollom Chartos Dwhhootw*

Dr C&ket H Hand. Jr Morton B Margubes*

Potor D BAxh*

Dr Jerry Hartnx*

Mart. hall E Mdler G Paul Bolted I'l*

Dr Davk1 L Hetrick Thomas s Moore

• Gnesin O Doght Erfwist E. He Dr f%ter A. Moms Dr A Otson Callihan Dr FrarA F Hooprw Dr Roard R Partrek Jarres H Cayentor*

Ekrateth B Johnson De Harry Brun Dr Rohard F. Coh*

Dr Wahar H Jordan los.1 w S. Rutensteen Dr Thomai E. Elioman Dr Charles N Kelter*

Dr daw 1 R. Scinnk Dr George A Fergunon Dt sorry R Khre*

tvan W Srtuth*

Dr Hany Ftwoman Dr F%tr* S Lam

• Of Ger;ge Tidey Dr Pufwd F. Fostra Dr James C Lamb til hkjan J Wotte John H Frye til' Dr Emrreth A LuntAe

• Prurrurent panel momisars

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Che as 35 NRC 11 (1992)

LBP 921 UNITED STATES OF AMERICA flUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman Peter S. Lam, Ph.D.

Harry Rein, M.D.

In the Matter of Docket No. 50-333 OM (ASLDP No. 91445-02-OM)

(Facility Operating License No. DPR 59)

(EA 91-053)

NEW YORK POWER AUTHORITY (James A. FitzPatrick Nuclear Power Plant) in the Matter of Docket No. 55-3615 SC (ASLDP No. 9144642-SC)

(Sanlor Reactor Operator License No. SOP 10561 1)

(EA 91054)

DAVID M. M ANNING (Senior Reactor Operator)

January 21,1992 11

MEMORANDUM AND ORDER (Terminating Fit: Patrick Proceeding)

SYNOPSIS

• lhe lloard terminates the fit:Patr/cA proceeding tiy granting the joint motion by the NRC Staff and the New Wwk Power Authority (NYPA) to approve n settlement agreement. Mr. David M, Manning, a party to the related Afanning i

proceeding, objects :o the settlement agreement twause, he states, his hearing rignts may be adversely affected by it itecause Mr, Manning failed to state grounds upon which his objection can be sustained, the Fitzfatrick pnmxting 1

is tesminated. *lhe resolution of factual issues by the fard'atricA settlement agreement is not res fuJicata respecting any of those issues in the Afanning procceding.

llACKGROUND David M. Manning is an NRC licensed senior reactor operator (SRO) em-played by the licensec, NYPA, at its FitiPatrick Nuclear Power Plant. Mr.

Manning admits that he has used unlawful drugs in violation of the policies of the Nuclear Regulatory Commission and that, on October 9,1990, he tried to thwart a random drug test administered in accordance with NRC regulations and NYPA's related drug use screening program. Mr. Manning also admits that he hs.j previously been refarred to the NYPA Employee Assistance Program as a result of a cocaine-positive test in Atq,ust 1988. Manning Affidavit at 2 (attached to Answer).

On May 2,1991, the NRC Staff issued an " Order Modifying Liceme (Effective Im:nediately)" to NYPA with respect to the FitzPatrick license, lhe order was founded upon the drug testing and use episodes. It stated that the episodes raised concerns rbout Mr. Manning's integrity and trustworthiness.

' *the order modified the Fitr. Patrick license to prohibit NYPA from empkying Mr. Mann'ag in Part 50 activities without prior NRC appsovid. 56 Fed. Reg.

22.022 (May 13,1991). On May 31,1991, NYPA answered the order requesting that it be rescinded or, if it is not, that NYPA be afforded a hearing on the order.

Also on hiny 2,1991, the NRC Stali issued an " Order Suspending License (Effective immediately) and Order to Show Cause Why License Should Not Be Revoked" respecting Mr. Manning's Part 55 SRO license - an netion also based upon the drug. testing and use episodes. 56 Fed Reg. 22,020 (May 13, 1991), On June 6,1991, Mr. Manning, by his attorney, requested a hearing on the orders against his license. Ilowever, Mr. Manning did not request a hearing 12 l

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on the order modifying tie Fiv.ittrick license even though the fedout Rcghter notice anrourfed his right to do so. 56 Fed. Reg. at 22,023.

On August 9,1991, in consideration of tic respective answers, the NRC Staf f modified toth the Fiulbtrick arni Manning onters. 'the Modified Fiulstrick Order pern,its NYPA to allow Mr. Manning to return to lurt 50 duties provided, among other things, that he follows a specified 3. year drug-tes, ting program. 56 Fed. Reg. 41,378 (Aug. 20,1991).

Mr. Manning's suspemial and show<ause orders were modified ta suspend his part 55 SRO license for a minimum of 3 years, rather than to pursue an outright revocation, lhe Modified Manning Order would requlte Mr. Mar.ning to par 0cipate in extensive 3 year drug testing and rehabilitation programs. Afler completion of the programs, he may apply to have his license reinstated. 56 Fed. Reg. 41,$90 (Aug. 21.1991).

On August 28, 1991, Mr. Marming returned to l' art 50 duties, but not to beensed reactor-operator duties, as permitted by the modifications. Ilowever, neither NYFA, at first, nor Mr. Manning accepted the modified orders as a resolutioc of tie issues each wish to te heard by this floard. Later, on October 7,1991, the NRC Staff and NYPA filed their joint motion for approval of a settlement agreement.

SETI LEMENT ' AGREEMENT Under the acttlement agreement, the NRC Staff witt. draws both orders issued to NYPA, and NYPA withdraws its request for a hearing. NYPA agrecs not to deviate from a followup drug. testing pmgram it established for Mr. Manning in accordance with section 2.4(f) of Appendix A to 10 C.F.R. Part 26 (integrity of urine specimcas) for 3 years from de date Mr. Manning returns to Part 50 duties. Tie period between drug tests will not execed 90 days. There cre provisions for tesung after absences from work.

• Ihc settlement agrtement and the Modified FitzPatrick Order require Mr.

Manning to te tested far less frequendy than does the Modified Manning Order. Unt:et tie latter, Mr, Manning would le subject to weekly, then semimonthly, then monthly testing during the 3-year program, compared to tie 90-day minimum interval t nder the Modified Fitzittrick Order and the settlement agreement.

13

i HEGUIEIORY FRAh11MORK NYPA notes that:

Mr. hianning... is nutie t to at least two separnie stances t.t regulatisse (1)by the NRC taider Part 55, and (2) try his empk'yes. MYPA. which has ustepeaient irsponsitshties mJer its Part 50 t cense, geirrally, aral pu;.uarn to rederal regulauon (ie.,10 C.12.R.1%:t 26),

spedfwat'y.

NYPA Response at 2.

NYPA is cortect. Part 50 permits licensees of nuclear povar units to employ only reactor and senior textor operators licensed under Part 55 to manipulate or to supervise the manipulation of reactivity-related controls.10 C.F.R. I 50.54(i)-

(m), There is no specific regulation in Part 50 covering the employment of nonlicensed personnel for activities under that part. But consistent with Part 50, the Comtnission has, by a statement of policy, adopted Industry Guidelines for Nuclear Power Plant Access Authorizations. De Guidelines are designed to assure that personnel granted unescorted access to protected and vital areas of nuclear facilities are trustworthy and reliable.8 Pinal responsibility under the Guidelines rests upon the utility. Dere is no aspect of Part 50 that would prevent facility licensees from establishing their own, higher reliability standards for its Part 50 personnel.

i In the prrxec4ings before us, hit. hianning's objection is that NYPA's settlement action would unfairly affect thc. reinstatement of his Part 55 SRO license. But hit, hianning is not an independent actor in his dispute with the NRC Staff, lie is an NYPA employce, and he needs his employer's confidence in him to regain his SRO license.

An applicant for an operator's license under Part 55 can be licensed only upon the request from the nuclear power facility licensee where the applicant will be employed. De facility licensee must provide evidence that the applicant is needed and meets the facility's NRC-imposed acquirements to te licensed.

De regulations impose a clear duty upon nuclear power facility licensecs to foster, support, and maintain the licensing of only those reactor operators it believes to be qualiLed and in good health. Eg.,10 C.F.R. Pari 55, Subpart C; i 55.31(a)(3)-(6); I $5.61.

In addition, Part 26 requires nuclear power reactor facility licensees to implement a fitness-for duty program for employees such as hir, hianning, Such programs must:

3 Nuclear Powas F. ant Access Authorusde Pr<sram,l%cy staiennent, A;pendis A 53 l-ed Res. 75s443 (Mar.

9.19531 14-I.

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Prunde reasarubic answance that nudear poetr plant peruwmel mill perform their tadt bt a trhalde and trustwcethy rnarmer and are rwa undes the influence d any sutstarwe... w hidi in any m ay affccu their stuhay to safely and cannpetently petforr= tirir duties.

10 C.F.R. 9 26.10(a).

'Ihe requirements for the fitness-for-duty programs are detailed and demand.

ing. E.g.. Appendix A to Part 26. htrticularly relevant to these proceedings is

- the requirement that covered workers be subject to unannounced ramk>m drug testing at a rate equal to at least 100% of the workforce cach year.2 Moreover, facility licensees may take even most stringent fitness.for-duty actions than those required by the rule.10 C.F.R. 5 26.27(b).

t TIIE PARTIES' POSITIONS A.

htr. hianning's Objections s

Mr. Manning, who is not a party to the Fitd'atrick proceedmg, did not join in the settlement agreement or motion. The Board afforded him an opportunity to comment on the agreement.

On October 24,1991, Mr. Manning, by his counsel, objected to the settle-ment, stating that such a settlement,"would render a nullhy a significant lortion of his hearing..,." Counsel argues that Mr. Manning would be denied his statutory and constitutional right to a hearing because, even if he were to prevail before the Board, NYPA would be required to impose the conditions " sought by the Staff" Objections at 3.

Mr Manning seeks a change in the seulement agreement that would subject him to either the testing program imposed by the Board in a future order or that imposed in the Mmlified Manning Order, Id. at 3-4. Ilowever, the Board doubts that this progmal has been well thought out. Counsel for Mr, Manning seems not to understand that the testing provisions of the Modified Fiti.httrick Order and the settlement agreement are much more lenient than the provisions of the Modified Manning Order. Id. at 2-4, Moreover, Counsel's arguments are virtually void of any legal analysis. Ibr example, he does not discuss the fact that the Board has no authority simply to alter the provishms of the agreement between the NRC Staff and NYPA at his request.

2 he perunent regulatum, is 10 C.F.il $ 26 24(s)C) hat asuuvi das rmw specify the tasung cycas rwrni and is, thaefers logically incarnplaa. Ilowever, the statement c( Ctraalerstwas (a Pan 26 indnanas that ths Commission innended ro ados an amunal cycle, i.s a awdu.d whereby coered mders *ase saaed as a rue equal to apprnairnatc.ly 100 purces or the mafme, resuhang en abet teodurde or the mden beans icated during dw cause of a given year." 54 ied Reg 24.46s tjune 7.19s9); 26 sc.7. The Board has t=4n informed that a cafeing crerectwn to Pen 26 is fonhcoming 15

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• i. NRC Staff's Reply The NRC Staff argues that Mt. Manning was efforded constitutional due process by the Trderal Register notiec and opputunity to request a hearing an die FitzfattkA proceeding. 'the NRC Sta!T also notes that Mr. M nning did not sect to participate in the settlement negotiations even diough te had been notified that the negotiations were under way. *lhus, according to the NRC StafI, it is too late for Mr. Manning to raise connitutiorul objections. NRC Staff Reply at 2 5.

The NRC Staff also repeats a puuling aucttion (with which we disagrre) that the proposed agreement would have no effect in 0,9 proceeding regarding Mr. Mantiing's sertior reactor operator's license. Id. at 5; Joint Motkat at i n.l.

i C.

NYPA's Response NYPA responded that it has the authority, as Mr. Manning's employer, to ad.ninister "all applicable FitzPutrick policies and pnicedures? NYPA notes Aho that it must meet NRC Part 26 requirements. Pursuant thereto, FitrPauick has a fitness for-duty pogram, which, incidentally, was accepted by Mr. Manning's labor union. NYPA Response at 5.

Ibrther, according to NYPA:

lllhe condidons of the Setticatient Agreement art exa simply abac sanght by ow Staff. They m muhtions whidi NYPA has purixncluuy a kgted. NYPA requires unpliarxe with tt*ese cmh6ms in ordce for Mr. Manning to do work pirsues to NYPA's Part 50 bcense, Id. at 6.

At the Board's invitation, NYPA provided de affidavit of Radford J. Con-verse, FitrPatrick's Resident Manager.$ Mr. Converse explains that the proposed drug testing of Mr. Manning under tic settlement agreement is appnpriate in the ordinary course of taisiness given NRC regulations and Fitiratrick pilicies and procedures. Afhdavit at 2. The proposed settleraent is: also important to NYPA because it will conclude the controvmy with the NRC. Ilut, even without that benefit, the testica prer. ram is appropriate tecause it provides reasonable assurance of Mr. Manning's fitness to return to work. Id.

i 8 Memorar luva and orens, N<=scher25.1941 (mpuhtwhed) The buent also pie =Wed att cypwtanity to M, Mauns w mpuul w any NYPA ef.lona.14 ai 2 ne dwt om rap <wW 16 i

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N DISCUSSION A.

The FitrPatrick Proceeding To ensure his standing to object to an) settlement or order in ti e fit #atricA proceeding, Mr. Manning should have intersened tnere in accordance with the opportunity announced in the Federal Regirter notice Moreover, as the NRC Staff argues, by waiting until settlemer.1 negotiatieis were cornpleted to object to the result, Mr. Manntr:g may be guilty of taches, in a neat, traditkinal civil proceeding, Mr. Manning woukt be found to hase rested on his rights too long, arul that would be the end of it. Ilowever, this proceeding is neither neat nor trajillonal. It is a complex, tri.btetal set of related proceedings with parties shifting frcun one side to another as t!e issues change.

At bottom, the NRC Staff and NYPA m(rre this lloard to Imd that the settlement is in the public interest. We wm unwilling to do so in tic presence of a n asonable question of whether NYPA was conveniently and unfairly sacrificing Mr. Manning to settle its dispute with the NRC Staff, if the seidement would unconscioubly deny Mr. Manning his opponunity for a fair hearing in his own proceeding, we would attempt to afford some relief.

It is not our purpose in this analysis to decide whether NYPA h imposing tie cormt testing regimen upon Mr. Manning. Rather, we look to whether the testing regimen falls within NYPA's very broad discretion to assure that its covered employees are reliable and trustworthy. We do this solely to test

+

whether NYPA has been unduly influenced by a desire to seule an annoying litigation.

We are convinced by Mr. Converse's urwontroverted affidavit, the facts admitted by Mr. Manning, and our review of the relevant regulatory framework, that t!e drug testing program to te imposed upon Mr. Manning in the seulernent agreement has a legitimate business purpose apart from its coixidental value as a seulement factor.

The $ctilement is consistent with the fitness for-duty regulations. Equivalent, or possibly more severe, testing would te imposed on Mr. Manning even if there were no dispute to be settled. The frequency of testing under the setdement agreement,90-day minimum, is not very different froin the minimum annual. rate -

1* art 26 requirement for the general workforce. Unlike the general workforce, however, Mr. Manning has teen tested once as cocaine-positive, and deemed once to te cocaine-positive by his refur,al to provide a specimen. In that light, the 3

90 day testing cycle appea,s to be ratfer lenient. Moreover, after two posithe tests. Mr. Manning could have been removed from Part 50 dutlet for a minimum of 3 years.10 C.F.R. 6 27.27(b)(2). Instead he was permitted to return to Part 50 work within 1 year - armther indication of lenient treatment.

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'lhere is not the slightest hklication that MPA has acted unreasonably toward Mr. Manning he the piriuse of aettling the AlzPorth A proceeding. Nor is the NRC Staff im;msing a testing regimen for Mr. Manning upon NYPA, as he i

has c 'tred %e settlement is essenteilly a recognition letween NYPA and the NRC ataff that they have nothing to litigate. Neither party seems to yicid any sIgnificant guldpro quo as consideration in the settlement agreement.

Dere are no grounds upon which this lloard can sustain Mr. Manning's i

objection to the sett!cment; the matter is beyond the purview of th: Ihurd in the Afanning proceeding. %e settlement is in the public interest and is approved.

l

?

11 He Manning Proceeding When Mr. Mannir.g's cotmsel failed to urulerstatui diat the filtratricA settlernent agreement would impose a much more lenient testing regimen upon Mr. Marming than that imposed by the Modified Manning Order, his argument that Mr. Manning would be adversely offccted by the settlement lost most c,f its force. Nevertheless, it is still open for Mr. Manning to try to establish that a testing psogram more lenient than the luegram imposed by NYPA in the

. settlement,' or no program at all, is appropriate. Since NYPA will still have considemble leeway and concomitant responsibility under Part 26 to im;mse its testing program upon Mr. Manning, the value of a favorable order of this Itoard nuy be diminished! In any (vent, the Afanning proceeding shall go forward.

. De NRC Staff and Mr. Manning are directed:

1. 'Ib enter into negotiations toward gossible se'.Liement in light of this opinion within 15 days following its service. %e NRC Staff shall initiate such negotiations.

. 2.

If no settlement agreement is reached within 30 days following the servlee of this order, the parties shall begin discovery and prepare for hearing in accordance with the schedule following page 54 of the prehearing conference transcript. %c Issue to be heard is: Should the Modified Marming Order be sustained?" Mr. Manning's proposal for additional issues is unacceptably vague and is rejected.

4However, NYPA sistes that the svusence that may be duveqal at Mr Manrur:g's heanna smid wad muuhae intermauan which bnnge ebna e reumawforsuon cf de terns at the NYPAwandated fcDowup drug testag pn. gram? NYPA Rampmaa at 9 18 4

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t OllDI:R IT IS TilliREIORE ORDERED (Mt tie fitti'a!rirA pnvecding lie termi-nated. *Ihe parties to the Manning proceeding shall comply as directed.

Till! ATOhllC SAlli1Y AND LICIINSING llOARD I

Peter S. tam, l'h.D.

ADMINIS'IRATIVE JUDGli llarry Rein, h1.D (tiy 1.W.S.)

ADMINIS11t ATIVII JUlKlE Ivan W. Smith, Chairman ADMINIS'IKATIVE LAW JUDGE llethesda. Maryland Jantiary 21,1W2 l

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Cne as 35 NRC 20 (1992)

LBP.92 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i

Defore Administrative Judges:

Charles Bechhoofer, Chairman Dr. Cadet H. Hand, Jr.

Elliabeth B. Johnson in the Matter of Docket No. 030-12145-CivP (ASLDP No.91-622 01.CivP)

(Materials License No. 2914150-01)

(EA 89-079)

CERTIFIED TES11NG LABORATORIES, INC, Januery 29,1992 The Licensing !!oard, in an Initial Decision, determines that a civil monetary renalty sought to be irnposed by the NRC Staff against a Licensee involved in industrial radiography should be reduced from $8000 to $5000. 'Ihe Board ruled that various reports and statements by the Licensec were tot intentionally false, as claimed by the Staff, but that the Licensec's system of records was inappropriate and inadequate for complying with the recordkeeping requirements of the license, As a result, the Board reduced the penalty from Severity I evel

!! to Severity Level 111.

LICENSE CONDITIONS: REPORTS Accurate reports are material to the NRC's licensing scheme for industrial radiography. Inaccurate reports are thus material whether or not the NRC would be led to take action on the basis of the erroneous mformation.

20 l-

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RULES OF l'RA('TICE: CIVIL PENALTIES I

In reviewing a civil penalty sought to be assessed by the Staff, a licensing board may determine whether the troposed sevetity level and penalty are appropriate or, alterrutively, whether the pneceding should le dismissed or the penalty trupo>cd, mitigated, or remitted. A board mry not increase the penalty sought by the Staff.

CIVIL PENALTIES: ASSESSMENT (IIREAKDOWN IN CONTROL OF LICENSED ACTIVI'llES)

Because of the demonstrated potential dangers of radiographic operatka to the public health and srfety and the importance of audit reports to NRC's system of regulation a failure to pepare correct repo ts c9n be of safety significance, in this case, the preparation of inaccurate audit reports some time after the anlit had taken pire was inappropriate for complying with the license requirement and amounted to a breakdown in control of licensed activities.

civil PENALTIES: ASSESSMENT (MITIGATION)

The promptness and extent to which a licensec takes corrective action is a factor that a licensing taud may consider in determining the amount of a civil penalty.

l

. ECIINICAl, ISSUE DISCUSSED

'the following technical issue is discussed: Industrial radiography, l

l APPEARANCES Mwrk C Trentacoste, Esq., Moorestown, New Jersey, for Certified Testing Laboratories, Inc., Licensee.

Ilernard M. Ilordenick, Esq., and Marian L. Zobier, Esq., for the United States Nuclear Regulatory Commission Staff.

21 L

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TAllLL OF CONTENTS P.ge OPINIQM (INCLUDING FINDINGS OF FACT).

. 22 1.

VIOLATIONS ALLEGED...

23

11. POSITIONS OF Tile PAR'11ES..................

. 26 Ill. NA*RIRE OF 11USINESS

............................ 26 IV. STA17 DISCOVERY OF ALI EGED YlOLATIONS......... 31 V.

INVE.%rlGATION OF ALLEGt:D VIOLATIONS

. 33 VI. PJ.il INGS ON ALLEGED VIOLATIONS............

. 35

. 36 A.

Violation I.A.1............

11 Vi olat kn I.A.2................................. 3 9 C.

Violation 1.11

..................................39 VII. ShVERl'IY OF VIOLATIONS AND APPROPRIA*lli CI V IL PEN ALTY..................................... 40 A. _ Oeneral Description................................ 40

11. Severity Levels Governing 'Ihis Proceeding....,....... 42 C.

Deterrnination of Severity level of Proved Violatkms 43 CONCLUSION S OF LAW..................................... 44 ORDER...................................................45 INITIAL DECISION (Order imposing a Civil Monetary IVnalty)

Opinion (including Findings of Fac0

'Ihis proceeding involves an Order imposing a Civil Monetary Penalty, dated August 29,1990.1 in the amotmt of $8000, against Cerdfied Testlug Laboratories.

luc Bordentown. New Jersey (hereinafter, CFL or Licensec). CTL is the holder of1.icense 2914150411, which authorizes the use of byproduct material for the

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3 The Onier nu publ.n:wd at 55 Yod Itry. %7N (sep 6.1990).

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conduct of industrial radiography and eclated actisities,81he license requires, inter alia, field audits of radicgraphers to be performed at intervals tot to exceed 3 months, during periods when radiographic wtak is being pesformed,'

r The Order was preceded by a written Notke of Violation and Proposed Irnposition of Civil Penalty, dated httdi 9,1990, whkh progosed the $m0 cinti petolty,' Ori the same day, the Saiff issued an Order to Show Catise why the Licensec's lleense should not be modified to prohibit Mr. Joseph Coono, Radiation Safety Officer C',50) at the Bordentown facility, from serving as RSO or in any other pospion involving performance nr supervision of licensed activities for the Licensec.s The show cause proceeding was later settled, permitting Mr. Cuono to resume his duties as i 50 but subject to additional corporate supenision,'

l Ibr reasons set forth iclow, we conc ode that the violatkens proved by the Staff to have occuned are of a lower severity than those for which a penalty was sought ar,d, accordingly, that the civil penalty should be reduced from $m0 to

SME, 1.

VIOLATIONS A11EGEl As set forth in tic Appeixlix to the Order im;osing a Civil Monetary I'enalty, tie alleged violations (tr which a civil penalty is sought to Ic im[osed are as follows:'

1A Canditke lf d tJcente No. 29-1415041 requires.in portocat licensed materul be passi sscJ and used in acsordance with starcur,enas, represonatiins and prucatures i

- corasined in a neuer dated January 7,198$ stem W 5 of this icuer requires the Itadiatxe safety _ Officer or his designated repretentative so perfonn unarvaamad 6

field audit insgectkms of exh radiographer et entervals sua in cacced three rmsuht.

Cisarary to the above,

1. Field audit inspecthe repur.2 dated July 30, 1537 and July 21, 1987, doctanerairig quarterly fiehl audits of too rad ogra%.rs, were created by de l

2 order impumns a Ov0 Monesary 1%natiy, daiad /,ugat29,1990.

3(Jmmes Adnussion d ihr: No. 2,4 ind Istwary 28.1991; hkC Stafflenumemy af omdrey Cara, Richard Mandas, John $4dler, and Pahn Wauis (kautshes, Stafr lestunar:yt !!. Tr 77, Anack 6 (ol iterinth Laha 2 ard s; Tr. 2411 (%Ilerh 1r. 535-39,3350 (C.haran) licammarnar, ruimenses to the swepared lastarn,ssy of twtscular Suff vitanuas mM1 be sned by do name of Os wannas and page an she pa'rdred traunw*y - #3

'tara, ff. Tr 71, s (page)"

• Cvit, fr. Tr. 77, at 22

• l4

'Mrn<rando and oreur ( Agrenving SerJaners Agrerrners andissniinating Pruterden), daicd June 21,1990 (unpuMinhad) $se cars, ff. Tr, 77, et 22. 25 A Tr. 2b21 (Caruk l..

$3 red. Reg. at R7% The N< sics af Yuduum sina inclur:cd inher wala(wes I s what no swil penaky has been soug% cant, ft Tr. 77, at 21 u

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Vue Pscsidess/Raesiksi Sak ty Of fat 4 (VPMM U ho*c ter. hcid.uJos t4 pic indneted redk giaphers were sat teriormed imi dw stwedcd date s, av a,biutttd by the VPMSO m an udenitw with an NRC imt stigaks asi I s teutt3 s.1989 2.

lieteten July 1987 and January 6,19b8. no brlJ euihts liv nie spruhr radagrapher mest personned t II. 10 ClK 30 9(a) requires. in part that informatum provided to the Cienmius vi tev a latensee be (tsugdete and accurate in all anatrnal respros-Cesarary to the atawe, informaikm prawided tey Ow YPMM) during a telephine carwrtsatsm with there NRC repreactuauves im April 25,1988, Set inauurate in that the Vice Presidese/Raastum 5afety Off6ter (VP/RV)). in respene to questasis regarding de field auda Inquaksi eriurt deed July ll,1967, stated that he resumaHy performed the f6 eld nuet inqatim, his statemced by the VPMSO w as sus accurate in all snaterial tripets: bi that the VP/R$O subacquanly aJnutwJ to an NRC invesugator m 4:etrumy 8,1969 timt le had aus aud.ad he ra.hogesphes

<m July 21,1987, but had "maar up" the sudd repirt to gwe the appearnine of ternpha:K4 Whh the quSnerly addit requirfstsfrd llt statement tal shalfrial because h had the peersial to affect an ongoing NRC review d tie maner.

'ihe Order categottred the two violadons in the aggregate as Severity level

!! and sought to assess a civil penalty of $ml0. 'the penalty was stated to be divided equally telwece de two violatiora.

'the Liectisce admitted Part I.A.2 of Violadon I.A and denied Part I.A.I of Violation 1.A and Violation 1.11.8 The Licensee also filed a timely request for a hearing, dated Septemter 25,1990. "Ihis Licensing floard was established on Octoler 30,1990.'In our Memorandum and Order (Schedules for Pniceeding),

dated November 5,1990 (unpublished), we granted the heruing request and issued a Notice of Ileasing.

'the issues to be considered at the hearing, as prescribed by the Civil Penalty Order, were (a) whether the Liceraec committed Violations I.A.I smd 1.11, as set fordi in Oc Nodce of Violation (and as quoted above), and (b) whether, on de 15 sic of these,iolatlant and Violation I.A.2 as set forth in the Notice of Violadon (also quoted atove) that the Licensec admitted, the Civil Ivnally Order (in the amoimt of $m:0) should be sustained. At a prehearicg conference held in Inordentown, New Jersey, on December 10,1MO, the following subissues (to be considered under the aegis of tha. twa broad issues spelled out alvve) were also apptoved by the lloard for litigation purposes:"

1. Wncther 9e RSO pianpdy admad the NRC that the euda vrpst dated.luly 21, l

1987 was inurrect.

3

'cus, ft Tr. 77, at 2h

'55 Iad. Reg 4.393 (Nov. 5.1990) 3*ne Natue or limaring. daiad N<= ender 1,19*. mu p.hlahed ai 55 i ed Res 47Jf'O (NM 9. l'*4 uPichesang Cmferwwe onier (lauen aml 5dedulcs), deied Desendwr 19, i9w (unnahhabw4 si 3 4 24

- - ~ - -. - - ~. - _. - _ _ -. _. -.. _.. - ~ - -. _ _. ~. -. ~. _.. -. -.. _

P

2. Wiethes, in stating that the July 21, 1957 aude repel ess "enade up" tir RSO admiued that to inscrutcJ to eniste aJ the NRC or, alwenativah, that de reptwt was increly irmwem1 anj tus barnded to on, dead the NRC.

3.

The sope and eatent ad NRC reliance swi the July 21, 1987 aoda reent, ai tefererwed in the Appernha to d,e Onnet Irnpurns a Catil Mtuu1tary Ivnalty (si y d) and as usamiplascJ l'y 10 Cf R. Pan 2, Aggendia C (VI) 4.

Whethes tW NRC Staff prsqwely sqvhed the 7 standards in 10 C.tR. Part 2 A etidst C (VI), scisting to the avaideratumi 44 cral inf(smatuso in pankular, 31 shedws the REO use petMJnl a upy si die tunes et t'aimnet of his rernarts ha revecw and cierntkm.

5. Whether the NRC $taff gave agge<5miste uctikreksi to enaigatusi based on ths 13cmsee's smettive acsket in eequiring hanJ preTured and 64untersigne4 auda trovts (as 10 C.F.R. Part 2, Appumbs C (V),14 2 alpr-ars to require).

6.

The adequacy, scaracy and validay 44 the repwt of the sudd dawJ July 20,1937.0 In its Prehearing Conference Order (Issues and Schedules), dated twember 19,1990 (unpublished), the ikurd established schedules for discovery, the filing of direct testimony, and for the evidentiary heating. Iloth parties engaged in discovery, which terminated on htarch 6,1991, '!he Staff filed written direct testimony on March 25,1991. 'Ihe Licensee elected to present its witness' testimony orally, as it has a right to do in a proceeding of this type (see 10 Cf.R. 6 2.743(bX3))." 'the Ikard conducted a second prehearing tonferes;,

on Ap;il 16,1991, immediately preceding the evidentiary hearing, which took place ett April 16,17 and 18,1991.88 At the hearing, the Staff presented the testimony of a panel of foat wit-nesses: Mr. Geoffrey D. Cant, an Enforcement Speci.nlist with NRC's Office of P.nforcement; Mf, Richard A. Matatas, a Senior investigator with NRC's Region i Office of Investigations; Mr Jofm J. Miller, formerly Senior llealth Physicist in Nuclear Materials Safety Section C, Region 1; and Mr. John R.

White, formerly Chief, Nuclear Materials Safety Section C, Region 1," It also relied on certain documentary evidence. 'the Licensec presented two witnesses i

- Messrs. Josciti Cuono, the RSO,!' and Peter M, Sideras, a former mdiogra-pher and nondestructive technician for Ull"-- and also relied on documentary l

~NAs amadad through Man,randam and Ordw (Islegdase Cardstatus Call,12/24h0), dated thernher 28, i

1-1940 (anputd6shd), at 2 l'$4e elsa Tutt. (;ewea Rey, fec,..IJsP-9143,33 NRC S35 s'unn 13,11H) 3*Jee Nisus of Iw ranng Camfer=== end I:.vidarmary licenns, daied larvary 19,1991, pahinted et $6 Fed lle7 7733 (Fett 25,1991) 8 staff Tatunony, rt Tr. 77, Aca&s.14 (staiaments or IWeaawml Qashraa'irna).

l'Ti, 325 (Curano) l'Tr. 244 (Ldaru)

evidence. We find each of inese wiuwsses technically qualified to present the testinony that each sponsored.

t 1he NRC Staff filed its proposed findings of fact arxl conclusions of law on May 17,1991. 'Ihe Licensec filed its proposed fin. lings of fact arwl conclusions of law on June 7,1991.1hc Staff filed reply findings on June 21,1991."

11. POSITIONS OF Tile PARTIES h Staf f fourxled its case on the questioned acenracy of two of the Liccusec's audit reports - orc, dated July 21, 1987, coreerning a radiographer named pcter Sideras; the othcr dated July 20,1987, concerning a radiographer named Milton Ramero-togeb t with statements made by the Licensec's RSO to NRC reprea:ntatives concerning the two audits. "Ihc NRC stressed the importance of such reports to the regulatory scheme ernployed by NRC. h maintains in essence i

that these reports and statements were deliberately falsified to convince the NRC that the Licensec was abidmg by the requircinents of its license cor crning audit rep (sts (noted earlier in this Decision). Based on these assertedly fraudulent reports and statements, tne Staff sought its 580(0 civil penahy.

On the other hand, tic Licensee concedes the inaccuracy of at least one of the reports and certain of its statements but claims that it acted through confusion or lack of proper care, with no intent to mlsicad the NRC. Tic Licensec at the heating acknowledged the importance of the reports in questhwi but indicated that it had not accorded importance to the reports during the time frame in which the alleged violations were uncovered. As a result, the Licensee claims that the violations should be considered of less severity than asserted by the Staff, leading to a civil penalty of no more than 5500.

Ill. NATURE OF BUSINESS The Bordentown facility is a satellite of the New York office of CTL.1he portion of CTL's business corxtucted from the Bordentown facility that is rel.

evant to this case conectns scaled radioactive sources containing byproduct material that are tssed for radiorogical testing." NRC Materials License 29-UDses dimmanu wd1 hm4fter be enrawnced as " Start IW.* %erw e lof." and " Staff itardy IOF," The lacerner, along wuh ks Andings alan food amnants <m censin d the suff Andust, theec cumrnans win be

- refmnred as %ensee IW Commems" "The swwd of dds case duas ed indwate that Cit's enurs twass is enrwrned wah the use of esJmsetive smutes Testimony of Mr. Censo at Tr 417. 420, 42s. and $92 unches that ruhes ersmiy pornswd si the Ikedensown ans, si least danna the terrprary (essatam of radmgre;*y traloming deemey a uw instant vialauors 26 4

- I r

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- +,,

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i 14150411 permits CIL to possess and use certain radioactive enaterials as scaled sources under carrfully prescrited conditions, subject to regulatiom pr(snulgated to protect both the radiogra;ters and the general public.81 l

Dese regulations govern such matters as the training and certification of radior aphers; the required records that must be maintained, including source usage, radiation levels, and personnel exposures; the control and testing of ser. led sources; radiauon survey instrutnents; requirements for the various devices associated with radiorraphic use of scaled sources, includtng functional criteria, radiation levels on external surfaces wid from the slorage container, repair, and maintenance; and inventories. Additional requirements or details may be inchided in the facility license.

Each holder of a license for ndiography is inspected at irregular intervals by NRC inspectors, usually from the cogninmt field office, vcho arrive on site unannounced. In the course of the inspection, they may inspect and copy any and all relevant records of the licensee, observe operations, inspect the facility, and interview personnel, %c inspectors may later ask the licensee for clarificatkm, conftrmation, or acklitional information; this request may be by letter, in penon, or by phone, De product of the inquiry is the NRC inspection reput.28 De Staff testimony (not contested in this respect by CTL) forcefully demon-strated the importance of the NRC's regulation of radiograpHc activities, Rela.

tive to many operations regulated by the NRC. radiography presents the greatest potential for inadvertent exposure, both for the radiographet and for the general public, indeed, the record suggests that radiographic souten are responsible for most of the acute-radiation-exposure industrial accidents in the United States.8$

De staff employed at CTL's Bordentown facility was sr ull at the time of the audit of concern in this case. hose C1L employees playing roles in the events being considered here consisted of a secret.try, two ruliograpisen, and the RSO.*

De secretary performed such tasks as typing audit reports, logging in work submitted by customen and recording any special requests, tnnsmitting reports of testing, and undoubtedly perfor:ning other similar duties, ne radiographen had been trained, examined, and certified in accadance with the requirements M Under be lumes C'!L can piossas sources cienarang indwm 192, ed,ah-fA tw saasn 137 or amaned suengtha, ao ens d *Ma tan escoed 100 cunes The teenan inosqw is ased, unes than bc.mse, rar sahhrauem gpmes. staft Taunwey, ft Tc. 77 Aaadt 6, IA 2.

Reguistiima diverssd speci5cally to sho itensms d roiawaphy and radmloskal cgerathew as gracused by Crt are imead n 10 Cf R. Pan 34; regalauuns d unws general a;gd,cahbty are twaied alnewho, at Tatne 10, 1

paruculady has 20 and 30.

asses, e g, stafr Testxmony, if 1t. 77. Anacit 6, I A 4 Onspenkei Rgen 0% 12145/s4401).

33Wkte, tr. Tr. 77, at 2 s. In the stawmara d Cauulerstaan in a 1990 rensLm a 10 CJ R Pan M the Commissan pnwided recamt caernpies d radgephy inc tenu. Whne, tr. Tr. 77, at 3, siaft Tatune.ny, AtiaA 5 reqv d 55 Fed. Reg $43 (Jan.10,19%

M Tr. 245,268,285 $6 (Sidernd CII. also unpkwyed e enamd anonnary, a uma and auendou ciect and a hwharper at B<rd,ssorn tre. 2A6 (suleras))

27

__~___._ _. _ _ _ _ _ _

m.-._

t of A;pendit A of 10 C.F.R 1%134." he RSO, Mr. Cuono, who was als.o a i

trained and certified radiographer arul a Vice. President of C'lt,2* had the overall responsibility for the operation of the llordentov.n frihty arkl, as us RSO, for i

the radiological safety of its employees tuhl the public. lie wm required to be familiar with the governing regulations, with the facihty liccine, and with the wik being done by the radiographers."

Of particular importance to this ;dse was Mr. Cuono's responsitulity la l

au. the wwk parformance of exh radiographer quarterly arid to pregute aral maintain De report of that audit.10 C.F.R.134,11(d)(1). Ibr this purpose, a printed form had been prepared that contained the reune of the radiographer, a checklist of a number of iterns to te obsened, comments of the auditor, the signature of the auditor, and the date of the audit." ne gmrpose o' the audit was to determine, by obs-tving him as he wivked, whether the radiographer was continuing to follow tic procedures established to protect die public and to minimire his own exposure to radiation, as he had leen tr.ined." An atKlit of a rndiographer could be conducted, withrnit skivance notice, cidict within the Iksdentown facility or at a remote worksite,"

The radiographers had the use of an ass (utment of scaled radka:tive sources, exh installed in an exposure device that also served as a shield from the radiation; in order 1:, make the necessary exposure, the source could be mechat.ically driven by remote operation from this device, then retracted into tu sideld." When not in use, all sources were kept in a locked storage facility;n inventory of the contents of the storage frility was maintained by means of a source utilization log, in which the radiographer entered, inter alla, his name, He tource identification, the date, the job kication, and the times he removed

- and returned the source.55 Calibrated radiation survey instrurnents were used to deterrnine radiation !cvels on the outside of the storage facility, on the tntskle of the exposure device whh the source in its fully shielded position, and around the periphery of tic work area, with the source out of its shield and in position to make the exposure," %cse levels were recorded on radiation reports." Le radiation levels at each location were limited to predetermined va'ues, "Tr= 14042 (Ener, wh1 m to C.F.R. { 34 31(aXi).

H Ts SV1 (Cww.m). Cara, tr Tr. 77. at '4.

~ "wime,it Tr. 7r, et 14.1r.19s (wh).

"Sn. e s, starr I.sh. I, biafr Teswuu!y. rt Tr. 77. Ana,. 6,1 ah. 7, si 7-11.

" w h,it Tr.77,et4.

"Tr. 24 47 (Sularash Tr. 336. 337,357 (Cerm).

M Whsm, tr. Tr. 77, at 3.

nstart Tesimumy tr. Tr 77, AuA 6, I.sk 4. et 3 U

i M.ner, tr. Tr. 77, ai 6. tamme Lah.1; Tr. im (sucess), Tr 426 27 (Cwrm)

"T 368(cer.m).

18Kiler, fr. Tr 77, ei 6, IAmes 1.aha. 2A, 211, 2C, armt 2D l

i e

+

..m y,..,

__.__m lhe sourtes used by C1L contain radioactive material that gives ofI gaunma rays as it & cays; the number and coctgy of Ltc puuma rays emitted deperul on the sjwific activity of the radioactive isotope that has tan encapsulated.

'Ihe source "strengtn'(a measure of the numter of disintegrations occunmg per unit time, often esgvessed in curies) & pends primarily on the quantity of de radkuctive isotope in the source. The sources are scaned in order to confine tlie radhuctive material, thereby preventing contamination of the surrounding areas.

Sources such as thcae can be used much as are Lrays: to make pictures on him of specific portions of objects" in order to dete4mine conditiom not otherwise -

l visible (nondcatructive testing).

The record of this case contains lengthy discusskm, albeit not for technical reasons, of inspectkms that Cil. radiographers made for, e.g., welder cestifica-tion purposes.*' 11ccause of their small physical site, these sources are manage.

able, are casily tramported, even in their mandatory shielded containers, and can te used in locations irmecessible to cumbersome Lray machines.58 Hadiography can be performed *on site" (within the Ikydentown facility) or in the field, by transporting the radiographer (and a helper, if needed) and all his equipment to i

a job site."_

With this background, it may be helpful to follow a specimen submitted for radiological testing along its route through the facility 1hc secretary would log in the specimen and record any specific requirements or instructions from the customer, Mr. Cuot2o wocid assign the specimen to one of the radiographers, wls would proceed to perform the test.1hc radiographer would likely place it in an open arco inside the building apgvopriate for making tie test. Ile would remove the selected source, in its ex[msure device, from storage, fill out the utilization log, and position the exposure device so that the source would le appropriately located when driven hem the device. lie would drive the sou,ce out of its shield to its position for making the exposure, but only long enough for him to determine, with the radiation survey instrum its, where to place the

- ropes that would designate the delimited area.

With rupes in place and tagged and the area diagrammed for record purposes (exposed somcc and specirnen location, distances from the exposed source, and radiation levels at the ropes recorded), he would place his film and proceed to m,,,[g, %__ % g, g a,,a,.

yu,,3,y,p, i,, w,,

w

..,ru s.w.nd t.

===t t, an=n n.iny m ren.. su so c.r x nn n, m. un a w

Hp.at Maunal"

-- Th tentLaury had mainsta la do wd de seat ne.surernerus kt mty we 04 Mng of om insgetim setente est me see in os cusmnwr Sn. e s., Tr. 2fM9 t3 Aush Tt. 323 3s (Cuauo). So at,e nuis M ym.Ju w)uis, ff. TV. 77, at 2.

"Tr. 3% (Cwiuch Tr.11314 (M.Dar).

'# e 249 (sideru).

T 29 l'

..~ - - -

4 k

make the etyisure.*' After lapse of the necessary time, he would schact the suurec, survey the outside of the expuure device to ensure that the source had properly truacted and was thus shielded, retrieve h' film, arkt, if that was the last test to tio made with that sourre, return it to s-ge, again surveys..,t the outside of the storage fxility to confirm proper pixtment of the devke in skrage.1hc utillation log woukt le ut.ed to record the return of the device and the radiatio.1 levels.83 It was during one of tirse setups and reshiratior.s tha Mt. Ctxvm would perform his audit. lie testified that his office was faitly close to the area in the llordentown frility in which the radk>gniphers wtuked and that when he olmerved one working " loci there," he would go tack and do an audit on a piccc of paper, which he perhaps would give to a secretary for typing at usue later time.

It would appear that only a few of the actual field audits ever made it to typing, llowever, ote must ask the teamn for the audit and its report. A radiographer must inictitively pedorm a nuruler of actkms, no one of which is, of itself.

- challenging or complex, but each intended to minimize hk expuute to radiation and to prevent expuure of anyone else, all while doing hu job efficiently and professionally. In many ways, the type of audit aatressed al '"qth on the record of th s case is similar to the periodic perstumel evahtations ud naa4 employers; in the present mment.11is a formal record of a radiographe s. 4 -

gerformance of his job - does le adhere to the rules (demonstrate go(vj safety practices) or has he lecome careless. It is appropriate (and required) that thetc audits be periodic and unannounced." It is commendable that a supervisor does not wait for the ma.edated date on the calendar to observe (even though trot always recording) the wont of his co.wtvler.1he NRC depends on acente reco'ds of perkxiic audits to assist in its determhiation of whether a licerisec u maintaining vigilance in protecting its employees atxt the public.

83This sees is aus avunpemed eruh the quahty d Ow picture male en finn by the esposws, ehbegh thu quehty is, d twne, d mapt irrgwwimm* qi the sinnpsny ladi esJacgrapher must else ruas s 'twestaal ess'n/

whd destemune, seure eles, whraher he is capaMe or ehtauung de esqmsua infermaum em e speciman. The

• }unceical samm* sleo indudus a sovwe at to whades the radmgrapher a 6dhering to a;ytceede ufesy reaparamesna swanparetle to nuuars emered by the rioW sudas En p 3s,W "3,e Licewee f.sh.1. k is sus clear fasa the recied, nor is a 'mponsra rar % saar, when la this aeqwnce 3

e 24 rad.csapher mate develop ha r.im.

83 Tr. 3M40 (Couria).

• • 10 CER. 4 34 II(dXis wi.ne, tr. Te 77, et 4. staff Testinumy, ft.1r,71 AnaA 6,lah 3, et 1 85 whus, fr.1r. 77, et 4. Cani, tr, Ts. 77, at 24 25, 77.

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. --.m.-,,.m-..ay

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IV. Sin.T DISCOVERY OF ALLEGED VIOLATIONS On April 22,1988, Mr. John Miller, then an NRC inspector, conducted a routine, unannounced 6afety inspection at the C1L facility in Bordentown, New Jersey Mr Miller was the tenior inspector and was assisted by Mr. Michael Varela, also an NRC inspector. The detalls of the inspection are docurnented in NRC Inspection Repu: No. 03012145/88-001,

During the inslection, Mn Miller reviewed records documenting the audits of radiographic personnel performed by t!v Jcensee's RSO, Mr. Joseph Cuono.

in an effort to validate the veracity of the audits, he cross-circked the audit records against the Licensee's utilization logs and radiation reports. 'the ud.

lization log contains a record of the exposure device used on a given date and who used it, and the radiation report documents the radiation measurements of the surrounding unre.tricted crea when a source has been used and also docu-ments tne quality assurance check performed on the radiographic equipment.41 Mr. Miller also explained that if no radiation repost and utilliadon log exist for a given day, one would asstrue no mdiography was performed on that day; and, if no rad % graphy was performed on a given day, no field audit could have been performed on that day.**

Mr. Miller inspected the Licensec's utilizadon log and radiadon irports and nodced that the RSO (Mr. Cuozzo) had documented that he performed an audit of Mr. Peter Sideras, one of Cll's radiographic pers.onnel, on July 21,1987, lie found there was no entry fu the source utilizadon log indicating use of a source on that day or radiation report documenting that radiography had been -

performed on that date. At that point, he became suspi:lous of the audit record **

Mr, Cuozto was not present at the Bordentown CTL office on the day of the inspection, and Mr. Miller asked Mr. Tideras and one of the CTL secretaries to assist him in locating the records necdal. lie asked Mr. Sideras and the secretary if they could produce any paperwork, such as a bill to a client, to verify that radiogmphy had been performed on July 21,1-7. They scarthed 3

the files but could find nothirg to verify that radiography tul been performed on that date.*

Mr. Miller asked Mr. Sideras if he could remember if he had been audited on July 21,1987, but Mr. Sideras' respoiue to Mr. Miller was that he could not remember if he had or ha:' not been audited on that date. Mr. Miller further d'Maler, rt % 77, at 5. statt Twamuny, rr Tr. 77, AttaA 6. Eth. 4.

'7 Maler, fr. Tr. 77, at 54. See aise sware 33 and 35. and accivnPanyias utal, mera, as Maler, ff. Tr,77 at ti d'Idius als starr Testanony, Anad 6, Exh 4. at 1

% talar, fr Tr. 77, at 7.

e 31 4

W a

i

~-

. _ ~ -..

si

- testified that the sectenry stated that she thought Mr. Sideras n@f.t nave been on vacation during that time of the year und that the tbne and attendance clerk, Ms.

Lea Machulskis, would have the information. Unon checF.ng, Ms. Machulskis found that Mr. Sideras had been on vacation or, Jul'. M,1987.8 Mr. Miller checked a representathc sample d tb other audit reports in die lile to see if they corresponded to the utilintion logs and radiation reports, lic found no other inconsistencies at that time other than tie audit report dated July 21,1987. %e sectetary made a copy of that audit report and Mr. Miller took that photocopy of the July 21,1937 report track to the NRC Reglon I office.n Because the RSO, Mr. Cuono, was not present at the April 22, 1988 inspection, Mt. Miller interviewed him on the phone on April 25,1988 (%is I

interview constituted the exit interview for the particular inspection.)" nc telephone call was made from Mr. John White's office (M; White was Mr.

J Miller's supervisor) on the speaker phone, and Mr. White, Mr. Miller, and Mr.

Varela were present for the whole conversation.

Mr. Miller stated that Mr. Cueno said he could remember personally L

performing an audit of Mr. Itter Sideras on July 21, 1987. Mr. Miller told him that they were unable to locate a radiation report for July 21,1987, during their inspection. Mr. Miller further reported that Mr. Cuozzo said he would look for that report and forward it to Mr. Miller, and that Mr. Cuono did not inform him, either at that time or at any other time, that the July 21,1987 audit report was incorrect."

Mr. Miller testified that NRC Region I received a letter from Mr. Cuczzo on j'

May 3,1988, that included radiation reports for May 6,1987, July 20,1987, October 22, 1987, and January 6,1988, none of which had been requested.

No raliation report for July 21,1987, the date of the Sideras audit report, was included. I-iowever, also era'losed were tw audit reports for Mr. Milton Ramero, dated July 20,1987, and October 22,1987,"

Upon inspection, Mr, Miller noticed that the audit retort dated July 20,1987, L

for Mr. Milton Ramero and the July 21,1987 audit report for Mr. Peter Sideras, l-which had been copied during the April 22, 1988 inspection, were ider&at

(

except for the inmes and dates. De sig sature on the July 21, 1987 report l.

was a photocopy, as were the checks anociated with the various items. Mr.

Miller stated that he became suspicious that t!.c July-21,1987 audit report was fraudulent, and athcquently the matter was referred to the NRC Office of Investigatioru (01)."(At that time, Mr. Miller was not suspicious of the July 20, i

t!'

31ht See si,e Kuff Fah 2.

I UMlle fr. Tr 77 at 7-8 l

D Tr. 96 (%Dert.

8 Rues, tr. Tr. 77 at 8.

U !d at 9.

M 14 at84, L

32

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1987 audit repon on Mr. Ramero.)""The basis for involving 01 is documented in the May 9,1988 referral to 01."

"Ib Region i Administrator requested 01 Region I to determine whether the RSO at CIL had falsified a field audit report in an effort to rnislead NRC inspectors into believing that field audits of radiographic personnel were being perfamed in accordar..e with the requirements of CFL's liccuse. Additionally, 01 was requested to determine if the RSO had made false statements to NRC inspeck>rs concerning this matter. 'Ihc investigation was originally assigned to investigator Jerome A. Cullings but was reassigre<* to Richard A. Matakas, Senior Investigator,01 Field Office, Region I, on or about January 31, 1989."

V.

INVESTIGATION OF ALLEGED VIOLATIONS Following referral of the matter to 01, the Stati investigator, Mr. Richard Malakas, interviewed Mr. Cuono nt the Licensee's facility on February 8, 1989," Mr. Cuono first indicated his awareness of the license requirement for preparing quarterly field audit reports. Mr. Matakas showed Mr. Cuono copies of the reports dated July 20,1987 (for Mr. Ramero) and July 21,1987 (for Mr.

Sideras), and advised Mr. Cuono that both copies appeared to be photocopics of the other and that NRC suspected that both were fraudulent?'

Following a search of CTL files, the original of the July 20,1987 (Ramero) audit report was located, but the original of the July 21,1987 (Sideras) report could not be found." According to Mr. Matakas, the July 20 report " appeared to be a photocopy with white out on it and Mr. Ramero's name and the date July 20,1987 typed on it.. Mr. Cuono acknoveledged his signattue on the document **2 Mr. Malakas further testified that Mr. Cuono "readily admitted" (to Mr. Malakas] that he had "made up" both documents and that te had not perfortred the indicated audits on the days in question.** At the hearing, however, it became cicar that, by his use of the term "made up," Mr. Cuono meant diat he had " prepared" the formal reports on a date subsequent to the date act forth on the audit form, not that ha had " fabricated" such reports."

"Tr. 89 (Milics).

88Maler, fr. Tr. 77, at 9-10, he rererral arpurs in staff Tsuummy ff. Tr. 77, Ats,A 6. Eah 1.

8'Maukas. fr Tr. T7, a 10.

"btakas, fr.Tr. 71, at 11 he ~ uasytow haJ been adeduled by a telenhone can rain Mr Matakas to Mr.

u Cuarwa m Jamary 31.1989. M; Tr.16743 (Matatuk 1

8 Matakas, if, Tr. 77. e 13, Tr.170.173 (Matakssk a2Ma:akse fr Tr T1, at 1314;Tr.1(r?,173 (Maukse).

OMatatas, fr Tr. 71. at 13 The esismal or ilus dacurnea has been einemi uno evidence as stafr t.sh.1.

• • M att4

'8 Tr. 358.s9 (dnas (Cuoman).

33

During the interview, Mr Matakas asked Mr. Cuono to sign a statement regarding the two audit reports. Mr. Matakas first offered to write isp a statement and retum the next day for Mr. Cuono's review and signature, but Mr. Cuono stated that he would have his secretary typc up a short statement. Mr. Cuono left the room and returned with a short, typed signed statement, which he thereafter corrected in longhand." The corrected statement, in letter form and dated February 8,1989, reads as follows [crossouts as indicated; longhand cotTections underlined)."

Ikar Sir.

• lhe following forms (4 goahScatim for Gercrat Dectric dated July 21,19s7 were made up by one a:; TJ U ;..-JMien4iemete Joscrih Cuono J C. Ilowever audits were never actuutty performed. On 7 20-87 and 7 218Lquahncation were for Mihan Ramero and Peg.

Sideras. J C.

Re rectfully brs.

(signed and typed)

Joseph Cuono At the hearing, Mr. Cuono was questioned extensively atout what he meant by this statement. Although he conceded that he had not audited Mr. Sideras or July 21,1987,a he claims that he did audit Mr. Ramem on July 20, 1987, but did not prepare the audit form on that day." With resperet to his statement about the Ramero audit not being performed, Mr. Cuano stated that "[t] hat just means those particular audit sheets I was shown were not done on those days.

Subsequent to the Februtry 8,1989 interview, Mr. Cuono was questioned by the Staff at an enforcement conference in December 1989 as wrl! as at a deposition in January 1991. On both occasions, Mr. Cuono emphasized that he had performed audits on both Mr. Sideras and Mr, Ramero in July 1987 but that, when he made up the audit reports after the fact, he must have gotten the dates confused.'l Among other matters, he indicated at the enforcement conference that the February 8,1989 statement appearing above had been obtained by "dures3."" (The Staff denics any such duress.)'2 Mr. Cuono continued to assert that he never intended to mlsicad the NRC by the audit reports in question, but "Maaku,it Ts. 77. as 15;Tr. I16-20,188 90 (Muasaa).

~O statT Tesammy, ff. Tr. 77. AnaA A i:sh.12. at 3.

" Tr. 381. 411 (Cuorzo).

"here is no explicis agulatory aquartman for an auet styrt to be prepared the same day a the su&i is p"erformal. Tr 90 (Miller),

=

Tr,5% (Omtrok To iha ums affat, su Tr,578. 600 0t (Cuarok 73 Tr_215 (Maaku. Wier); staff F. A 5 (Depmition Tramenpt at 17t>72% The staff blicned that tiw anforconent emferents was the firm occasim that Mr Cucuo had maithned a posuble nustake in daies. Tr.

215 (Mahr).

"Tr.11718 (Md:cr, Metsa4):Ts 594 (Cuneso).

D Tr.1IE (Maakul 34

he (and company management) agreed to procedore revisions (including new audit forms) intended to preclude the production in the future of any misleading

- information?'

VI. RULINGS ON ALLEGED VIOLATIONS In considering the violat ons at issue here, we must first observe that the i

burden of proof is on the Staff, as proponent of the Civil Penalty Order.10 C.F.R. 6 2.732. We have evaluated the entire record with that in mind, both with respect to whether the violations were committed and the civil penalty, if any, that should be imposed as a result of any such violations.

We will here deal with each of the alleged violations sertatim. To the extent necessary, we will rely on factual fmdings set forth earlier in this opinion.

At the outset, we must explain our view on the credibility of the witness

, oviding the bulk of the Licensee's testimony, hir, Joseph Cuono, the RSO who allegedly produced the records deemed by the Staff to be fraudulent. *lhe Staff would have us fifxl the testimony oi' hir, Cuono not to be credible primarily because of its alleged inconsistencies?5 Additionally, the Staff questions hir.

Cuono's credibility on the basis of his testimony that he on at least one occasion had predated or postdated welder qualification reports as requested by a customerJ8 We reject this evaluation of hir, Cuono's credibility, We acknowledge, of co:2rse, that there have been apparent inconsistencies in his version i' he events under review here, But he has offeard cogent explanations for the inconsistenciec.' The most persuasive is that on occasion his statements to the NRC have been misunderstood and hence do not represent inconsistencies -

e.g., his statement that he nade up" the audit reports was construed by the Staff as an admission that he fabricated the reports, whereas his testimony stated only that he " prepared" the reports on a date later than that on which the audit was performed, a practice that he had frequently (if not routinely) followed at that time." Similarly, the explanation he provided of the admittedly ambiguous language appearing in his signed statement demonstrated to us that he did not admit that he did not audit hir. Ramero.

' 7'Tr. 56142. 615 (cmmro).

73stalt IDF at 17-19.

7'M at 18-19. Ner'naDy, a welder pertems a weld on e sample plate (or a mpm) e a given date, the melJ sampic is forwarded to CrL for testmg. amt the welder is cor.sulewd qisahrted only after a succsamful test by Cit (at a daio 1:hely to be subsequess to the date of the weld sampick Messrs. Cuario and sideras sad tenuAed that ena partalar customer had requemed that the welders be cmsidered quahned as of the date they performed their samy4e elds (assumma CTL foinsd the samples to be quahfied) and the welder quahScatkm reports wem dawd to ref.ect that equest. Tr. 328-35,338-39, Ss458 (Cuario), Tr.26449,270,2A1,3@05 (sideras) Examples of sud ermlared documans appeano be staff Enhs. 3 amt 4.

"Ti. 549-50,558 (cunno) 35 1

i

As for the testimony concerning the misdating.of a customer's welder qualification reports, it was corroborated in large part by Mr. Sideras' prior testimony. It represents no more than an auempt by a small business to satisfy the desires of its customers by complying with a particular daung request by that customer (see isote 76, suprat Mr. Cuono also testified concerning CTL's warning of that customer concerning the potential adverse effects cf the misdating." Given those warnings,- Mr. Cuono opined that he was not misicading anyone." "[M]y client knew about it, and that's who we were concerned with[.]'"

But when questioned by the Board as to whether the NRC might be mislead, he conceded that such might be the result but stated that he had not considered this effect ivhen agrecing to the postdating or predating.82 In our view, this testi-mony tellects Mr. Cuono's candor in attempting to provide a complete account of his practices and does not (merely because it represents a misstaternent of dates) represent a tendency for d'.liberately deceiving anyone.

Our evaluation of Mr. Cuono as a witness is that he was not always completely articulate in describing his activities but that he was doing his best to recollect what actually happened almost 4 years earlier, lie occasionally had to be asked questions several times before he understood exactly what information the questioner was seeking. After unuerstanding the gist of a question, he appears to have answered with candor, in addition, it is clear that Mr. Cuono often acted or testified precipitously, without completely considesing the ramifications of what he was doing or saying - c.g., he testified that he would frequently sign reports or forms without reading them 82 We thus consider Mr. Cuozzo to be a credible witness for whom some caution must be exercised because of his difficulty in vocalizing his thoughts fltiently, as well as his lxk of precise recollection. 'Ibtning now to the particular violations:

A.

Violation I.A.1 -

Violation I.A.1 assertr that field audit inspection reports dated July 20,1987,

- and July 21,1987, documenting quarterly field audit raports of two radiographers (Messrs. Mi; ton Ramero and Peter Sideras. respectively) were created by the Radiation Safety Officer (RSO), Mr. Joseph Cuono, but that field audits were not actually performed on the recorded dates. This charge was based on an

.. "18. 329,334 (Cuano)L "T:, s' Ass (Omezo)

"Tr. 551 (Canzon.

81 Tr. s5&s7 (Cuomo).

82Tr. 479 (Cwne).

83 f

Gv0 behy order. Apperas, at 1; 55 Fat Reg 34.730; Nn6ce d hiatum and Pror=ne/ Im;untmo of Ovil Pmahy - 53000, dawd Mardi 9,1990. reformed by Cen, rf. Tr. 77, at 22-Il m

i alleged admission by Mr. Cuono to an NRC investigator (Mr, Malakas) on February 8,1989."-

1.

With respect to the field audit of Mr. Sidents on July 21,1991, the evidence clearly reflects that no audit was performed on the date indicated.

The firm's personnel records, as well as Mr. Sideras himself, indicate that Mr.

Si& ras was on vacation on ht date." Indeed, Mr. Sideras testified that he was not in the Bordentown arra during that week but was "down at the New Jersey shore," so that he would not have been able to come to work for even a brief interval during that time period."

Furthermore, Mr, Matakis reiterated that, on February 8,1989, during an interview at the Bordentown fa:ility, Mr. Cuono had conceded that he had not performed an audit of Mr Sideras on July 21,1987." And Mr. Ctiono testified at the hearing that he hr.1 not performed an audit of Mr. Sideras on that date."

Based on this evidence, the Board concluocs that no audit of Mr. Sideras was performed on July 21,1987, and that Mr. Cuono admitted as n.uch to the NRC on February 8,1989 (as alleged in the violation). 'Ihis portion of Violadon 1.A.1 has therefore been proved. Whether an audit of Mr. Sideras was performed in.

. that general time frame (i.e., July 1987) will be discussed in conjunction with Violation 1.B. hp'ra.

2.

With respect to the alleged audit of Mr. Milton Ramem on July 20, 1987, the evklence is less clear. During that time period, Mr. Ramero was a

. radiographer associated with the Licensce's New York facility, but on occasion he came to the Bordentown facility to perform work. Specifically, he performed work at the Bordentown facility on both July 9,1987, arul July 20,1987.

Moreover, as set forth earlier, Mr. Cucuo denied that he had admitted not

- performing an audit of Mr. Ramero on July 20,1987. All he said he admitted was that he had not prepared an audit sheet on that day and that the audit sheet with the July 20,1987 date on it may act be accurate. We find this explanation by Mr, Cuono to be reasonable and the Staff's interpretation of Mr. Cuono's admission to be incorrect (although clearly not unfounded). That being so, the basis relied on by the Staff for demonstrating that Mr. Cuono admitted to not

- auditing Mr. Ramelo on July 20,1987, has not been pmved.

That is not to say that the audit of Mr. Ramero recorded on the report dated July 20,1981, was not in fact performed on July 20,1987. Indeed, although w would have preferred that the Licensee call Mr. Ramero as a witness to clarify

- " /.L 88 Staff E=.h. 2. Tr. 25'l.39 (hieras).

"Tr. 2$9 (5mierms).

" Ma'akir. rr Tr. T, at 14.

88 Tr. 4iI (Cuarse).

"The Starr sitpalated that Mr Rmnero was si u s Bordemwn caice or the luensee m both July 9 and 20 t987. Tr. 476 (Hedeisk).

L?

37 4

8

1 this point, we recognim die logistical difficuhics faced by a relatively small etnipany in doing so.* In the first place, the evidence supports a fmding that an audit of hir, Ramero was in fact pe: formed on luly 9,1987. As noted above, hit. Ramero was in flordentown that day and received what is denominated as a

" practical exam."H Although the Staff questions whether a " practical exam" is in fact 'the sams as an audit," the practical exam appears to us to involve many, if not all, of the same findings or observations as does the audit, indeed, it would appear that the "fieki audit" is concerned primarily with radiological safety whereas the "prxtical exam," which is administered prior to a radiographer's assumption of duties with the company, is intended to measure not only the safety aspects of a radiographer's activities but also the ability of the radiograpter to produce a proper film." Rir that reason, we will regard the July 9,1987 " practical exam" as encompassing the substantive requirements of an audit and, for purposes of this inquiry, as being equivalent.

As for whether an audit of hit. Ramero was also performed on July 20,1987, Mr. Cuono testified that Ic would audit radiographers every time he observed their work and would routinely prepare the audit forms at a subsequent date" Thus, the form dated July 20, 1987, for hir. Ramero could represent an audit performed on either July 9 or 20,1987. We find that it is likely that hit. Cuono audited Mr. Ramero on both of the above dates but that it is uncertain whether the audit form dated July 20,1987, is correct - i.e., that it recorded the audit performed on July 20,1987 rather than the July 9,1987 audit.

We conclude. therefore, with respect to the July 20, 1987 audit of hir.

Ramero, that t% basis for the Staff's allegation does not support the alleged violation but that, in any event, it is unelcar whether the audit report tellects the audit performed on July 9 or 20,1987, and may therefore be dated incorrectly.

We further find, however, that an audit was likely performed on July 20,1987, but, because of the failure of tic Licensee at that time to have in cperation a reasonable system for audit reports, such audit may mit have been recorded. No evi&nce was presented that the date on the Ramero audit form, if incorrect, was "The 1.icennes testined that u was vaawaec of Mr. Ranwro's locaum untJ about a werA herus tM heartna, Tr. 41314 (Cuano). we agens stih the stafr (Sts!r F0F, n6, staff Reply IW n.2) ht the liaisee had an ottgaum to vaafy the suft when a damveral Mr Ramero's kwauon. See 10 C.FA i2.740(e)(1)(i) We rect the Ikensee's (+aervane (Ltcatnes IOF Commcnu at 1) 6: n would have bam "siny" ror a to have no antined the starr, although we also reject the staffs cmduaim that its raiture to do so adversdy reflects upm Me, Cueszo's credib$ty. We tenwuas the dif&.ulties faced by Crl, a relauvely anau oegamaation, respundmg at vinuaDy the Last musns. in a pnerceet.ng whee the totsl ammns et stake is s3(In M

Tr. 429 (Cumoh tAensee I:sh. 2D.

"stafr 14.)F nt 1714.

"Tr. 430,433, (W$6. 4M 4% 17. sad 444 (Cuoero).

N.rea Aso noas 41. sqins Wu express no reinsun as to whaher the practwal test in questen comphes priceduraDy in all respets wici as: applwahie lacerse ruptrerma ror a adats. In perucular, a is reis dear whether the July 9.1987 pewt. cal sum ec

• unannounced " Cf Tr 4 % (Cuano) wo Tr. 441 th:4 "Tr. 337 5s 360 (Cherui 38 l

1

a

,,.W

+

L w

A

~

s J

intentionally so. (De Staff concedes t!.at, in itself, the use of a photocopied form with a substituted name violates t.o requirement.)" The NRC Staff thus.

has not sustained its burden of proof with respect to whether an audit of Mr.

Ramero was not performed on July 20,1987.

B.

Violation I.A.2 Violation I.A.2 asserts that, between July 1987 and January 6,1988, no field audits for one specific radiographer (Mr. Sidems) were performed?' he record reflects that Mr. Sideras performed radiographic work on several occasions from August 1987 up to January 6,1988," but that there were no audit repons prepared for any such work activities." Mr. Cuono also conceded that he had

.. not audited Mr. Sidems for a period in excess of 3 months and thus had violated CTL's license.2" The Licensec has admitted this violation.

C.

Violation I.Il Violation 1.B assens that, in a telephone conversation with NRC represen tatives on April 25,1988, the RSO provided information to NRC that was not complete and accurate in all material respects - namely, that he had performed a field rudit of Mr. Sideras on July 21,1987 -- and that hL subsequently had admitted in the 1989 interview by Mr. Matakas that he had tot performed such an audit but had "made up" the audit report to give the appearance of comply-ing with the quarterly audit report requirement. The violation furthe" asserts the materiality of the statement in question.

It is clear to us that, in the telephone wnversation in quest'on, Mr. Cuono provided inace trate information concerning the reported July 21,15&1 audit of Mr. Sideras. Mr. Cuono has conceded that he did not aud;t Mr. Sideras on that date. Rlrther, he conceded that he had advised NRC that he had "made up" the report although, as we have seen, he meant that he prepared the report after the fact, not that he had fabricated it.

Mr. Cuono strongly denies any admissica that ne "made up" the reg. ort to give die appearance of compliance with license reporting requ=ments, in the "Tr.129-30 (Elics)

'I We underend. as adameledged by the Suff, ht ha panad hegini en August 1987 and cawis in f anuay A 4

1988. Thess datas were chosen because, dunng the renod, there were no" trim <r abged" adia or Mr. suieras.

thus clearty saceedmg the audit pened specirsed in the license. Tr. 20s (Cam).

'8 speedcaDy. segsember 15.1987; oscher12,1987; N,msnher 4. 6. and 25,1987; and De enNr 11.1s. and 21.1987. seetaxmaes Fah.1.

" An audit repost rar Mr sidarne, dawd January 6.19st, was swiuded am.mg the documeras tran= rusted a the Stafr by Mr. br.ro an Apnl21.1911 M.11er. if Tr. W. at 9. 34e staff Testun<my. AnaA 6. Eah. 7 at 10.

3"Tr. 582 (Nam); Matakaa fr Tr 77, at 14. Suff Testunony, ff.Tr. M. Anuh. 6,'Eah d. at 4 39

4 1

first pire, no report in July 1987 was required for Mr. Sideras, inasmuch as an ear'ict audit had beert performed in May 1987,* and the license only required an audit every 3 months.*

-More important, under the procedure that he routinely followed in 1987, Mr.

Cuozzo frequently did not prepare a report on the same day that an audit had been performed." Thus, 6 preparing the report dated July 21,1987, Mr. Cuozzo ypcated to be following the same practice that he routinely followed and for which he had not previously been cited. The record reticcts dut Mr. Sideras performed radiographic activities on July 6,14, and 27,1987.* Although the record is not clear in this respect, the audit report incorrectly dated July 21, 1987, could have represented any of these work sessions (or, indeed, others).

Given these considerations, we do not find that Mr. Cuozzo fabricated the report in question for the purpose of appearing to comply with the reporting requirements. Finally, we agree with the Staff that necurate reports are material to the NRC's licensing scheme and that the inaccurate advice to the NRC accordin;1y was material, whether or not the NRC wou!d be led to take action on the basis of the erroneous information. Seefederal Communications Commission v. WOKO;Inc.,329 U.S. 223,227 (1946).

VII. SEVERITY OF VIOLATIONS AND APPROPRIATE CIVIL PENALTV A.

General Description Standards for determining the amount of a civil penal:y for various types of violations appear in 10 C.F.R. Part 2, Appendix C, ' General Statement of Policy and Procedure for NRC Enforcement Actions." In general, the " nature and extent of the enforcement action is intended to reflect the seriousness of the violation involved." # Further, the penally should be tailored to the particular facts and circumstances of the violation or violations involved.

Base civil penalties, as set forth in Table 1A of those regulations, are categorized in accordance with the type of activity authorized by the license under review and the particu'ar aspect of that activity giving rise to the violation in question.8" Here, the Licensec falls within the activity generally described.

• suit Tasummy, ff, Tr. 77, Acacn. 6, Exk 7, at 9; Tr. 58 t.82 (Cuano).

• stafr Testimmy, fr. Tr. 77. Attach. 6, Emhs. 2 and 3. Tr. 209-1I (Mdieth Tr.538-39,549 (Cuano).

1"Tr. 35940,545 (cuarzol

1. xensco Exhs.1. 2A. -

1 I"10 C.FA Part 2, Appmdix C. I V. For a further denenpum see Tdse C+,ma Amt Ix. tBPH-40,34 NRC

'297, 304 05 (1991) 10 CfJL Put 2, Appendia C, l V B, TaNe 1 A.

' 4')

at the time of the alleged violations, as "trulastries (sic) users of material"""

(specifica'ly defined to include " industrial radiographers"). The specific aspect of that activity F / ng rise to all the violations heic under review is denominatad Ii as " Plant operations." Ibr the activity and aspect of the a:tivity involved here, the base civil perialty is $10,000.

De base' civil penalty for a given violation is then adjusted for the severity of the identified violation, dsing percentages of the base violation. As set forth in Table IB of the regulations,* there are five severity levels of violations, ranging from the most serious (level 1) to the least serious (Ixvel V). De applicabla percentages of the base civil penalty for particular severitics are 100%

for Severity Level 1,80% for Severity Level 11,50% for Severity Level Ill,15%

for Severity Level IV, and 5% for Severity Level V. %c niles also permit violations to be evaluated "in the aggregate and a single severity level assigned for a group of violations."* As evaluated by the Staff, the violations under review here collectively represent Severity Level 11, and the Staff is seeking the standard civil penalty ($8000) for that icvel of violation (80% of the base civil penalty of $10,000).'

To determine the appropriate severity level for a violation, various examples are set forth ia eight Supplements to the regulations. He examples potentially appropriate to be considered in this proceeding are set forth in Supplement VI (Fuel Cycle and biaterials Operations) or Supplement Vll (Aliscellaneous Afaiters). He Staff deems the violations here at issue to fall within Supplement Vll,"' although the Licensee seeks to include the violations within the lowest severity level of Supplement VI.

Other factors may also be taken into account in determining the amount of a civil penalty, ne tables referenced above mke into account "the gravity of -

the violation as a primary consideration and the ability to pay as a secondary consideration,""8 In addition, the severity levels may be escalated or mitigated for various listed factors. The criteria intend to permit the NRC to consider each civil penalty case on its own merits and, after considering all relevant circumstances, to adjust "the base civil penalty values upward or downward appropriately.""2

1. This typogrardtical enor was later cormted to read "industnal Usen of Maienal," s6 Fed. Reg. 40,664, 40,646 (Aug. Is,1991),

• 10 CFA Part 2, Appenda C. I V.B. Tame IB.

10 C FA Part 2, Appendia C,6 IIL 6

• % mica d Violatum and Proposed tmposium of Qvil Penalty, data! March 9.19% at 2; Cmt Pmahy order, dated August 29,1990 Appendia, at 2 ss Fed. Res. at R370.

M10 C.F.R. Part 2. Appnda C, i VA The agulations add that it is rd NRC's intenuon to put a hcensee eut of bustncma through the unposiuan d civil penshics CGtC relies ori orden for that purprue), or to cmpr:wnise a heensee's abihty to condues safe opers*.uma.

n2 10 CFA Put 2. Appendia C, t Y A see aho sectam V.D ("liscalation of Entorcenwra sancuans"), where it sui,: dtat *enfarecencia saaetums wiu normaUy escalaie for recurnna sinular violations "

41 l'

I

(

l i

{

l Finally, ir reviewing the civil penalty sought to be imposed by the Staff, we may determine whether the proposed severity level and penalty are app.opriate

.j or, alternatively, whether the proceeding should be dismissed or the penalty imposed, mitigated, or remitted.10 C.F.R. 5 2.205(f). We may not increase the penalty sought by the Staff Hurley Medical Center (One llurley Plaza, Flint, Michigan), ALJ.87-2s 25 NRC 219,224 (1987).

11 Severity Levels Governing This Proceeding.

'Ihe NRC Staff categorized the two overall violations and their subparts as, in the aggregate, a Severity Level Il problem.") On the other harxt, the Licensee judged the violations collectively (including the one that it admitted) as no more than a Severity Level V."'

As set forth in the Staff letter transmitting the Not!ce of Violation to CI'L, dated March 9,1990, the basis for the Severity Letel Il categorization was that the violations " involved falsification of records and willfully prosiding information that was not accurate all material respects to the NRC by a

^

licensee oflicial responsible for the iladiation Safety twgram, namely, the VP/RSO." In that connection, the regulations define willfulness to include "a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements.""8 Among other matters, however, the " intent of the violator" is to be taken into account in establishing severity levels "*

'nirning to the examples set forth for Severity Level 11, under Supplenmnt -

VI (Fuel Cycle and Materials Operations), all either involve excessive radiation, exposures or relate to deficiencies in the actual conduct of radiographic opera-Oons. None would serve as an example for use in this proceeding.

Under Supplement Vil (Miscellaneous Matters), which is relied tipon by the Staff, Severity Level 11 includes two exampics that might be applicable here.

Specincally, in pertinent part 1 Inaccurate or incomplete information which is prtwided to the N)lC (a) by a bccmce official because of careless disregard for the canpleteness cr accuracy of the j.

' informatksi....

. 2.

Incontplete or maccurate information which the NRC requires te kept by a hcensee whidi is (a)incanpkte or inaccurate because of careless disregani for the aconacy of the intarmaion on the part of a heensee official.

"3stan PoF st 27.

H4 Imensee IOF,1 }4. at 1 113 10 CER Pan 2. Appenda C, i m.

lley 42 l

l w

In contrast, Severity Level lit currently includes the following under Supple-ment VI:

• 1,U1 Breakdowii in the omtrol d hcensed activines involving a number d violatkms that are related or, if isolated, that are recurring viotalims that collectively represent a i

psenaatly significara lack of attenuon or carelessness lowurd licensed responsibilities.

' And under Supplement Vil, Severity Level 111 includes, in pertinent part:

1.

Incomplete or inaccurate information which is provided to the NRC (a)Ireause of inadequate actions on the p.stt of licensee onicials but nat amounung to e Severity (2 vel I or 11 violation.,

1 2.

Incomplete or inaccurate information which the NRC requires be kept ty a hcensee whidi is (s) incomplete or inaccurate tecam of inadequate actions on t!r pan of licensee officials but not amcamiing to a Severny l_evel1 or !! violation..

ne only relevant example provided for Level V, which the Lices see apocarsi to deem appropriate, is (for Supplement VI) violations "ti.at have sninor :,afety or environmental significance." (No applicable examples appear in 1.evel V of Supplement Vll.) The Staff indicated that a simple failure to perfos m an audit,ts required by the license would amotml to a Severity Level IV violation.u" Here are no applicable examples tmder Severity Level IV of Supplement VI but, in pertinent part, Severity Level IV of Supplement VII includes

1. ' Incomplete or inaccurale infot nation of more thm minor significance which is l

. povided to the NRC las not amounting to a Severity level I, II, or til violationi.1 2 Information which the NRC requires be kept by a licensee and which is incomplete or inaccurate and of ruore than nunor significance tua nct amesmiing to a f verity levell, II, or RI violation (.)

C.

Determination of Severity Level of Proved Violations

. As set forth above, we have determined that the Licensec committed Violation I.A.1 (in part) and. Violation I.A.2 (admitted). Erh of these standing alone would appear to constitute a Severity Level IV violation. (if Violation I.A.1 had been prc,ved in full, it would have constituted an additional, separate Severity -

l-LevelIV violation.)

As for Violation 1.11, the Staff ims demonstrated that the July 21.1987 audit l_

of Mr. Sideras was not performed on that date and that the information provided by Mr. Cuozzo by telephone concerning that audit was incorrect. The Statt has L

l:

HIWhen the viola:Lons in dus case occuned, stus enianon was nurnbesed as "I* uniler Surplanent VI. Seventy 1.avel IIL uscant, fr. Tr. *D, at 2h Tr.15 + (Cano 43 l

I' l

l

not proved, however, that Mr. Cuono intended to mislead the NRC or to falsify the audit report for that date. Nor has the Staff proved a " careless dismgard" of requirements, for there was no exnlicit requirement to prepare a report on the date of an audit."' All that the C aff has proved is that the system used by Mr.

t Cuozzo - preparing audit reports some time after de audit h.ed taken place -

was inappropriate for complying with de license requirement.

- We evaluate these proved violations as falling within the criteria for Severity Level 111. They do not include any of the aspects of willfulness - either improper intent or a careless #stegard of requirements - that would clevate these violations to a Level 11 They appear rather to be comprehended by

" inadequate actions" by licensee officials or, alternatively, by a "tecakdown

-in the control of licensed activitics"- each constituting a criterion for Level 111. In the words of Mr. Cuono, he was " sloppy with [his] paperwork."S On the other hand, because of the, demonstrated potential dangers of radio-graphic operations to the public health and safety and the importance of the audit reports to NRC's system of regulation, we view the foregoing violations as of a significandy higher level than the " minor safety significance accorded -

it by the Liernsee. There clearly were " inadequate" Licensee actions amounting

- to a " breakdown" in control of licensed activities.

Accordingly, we rate the violations, in the aggxgate, as a Severity Level !!!

violation. A civil penalty reflecting that level of severity is to be assessed.

CTL previously sought mitigation on tle basis of the administrative changes that it put into place. Ucdct 10 C.F.R." Part 2. Appendix C, 9 V.B.2, the promptness and extent to which a licensee takes corrective action is a factor we may consider in determining de amount of a civil monetary penalty. Here, however, CIL effectuated its changes only subsequent to the enforcement conference in December 1989, almost 2 years after the Staff discovered the violations and discussed them with the Licensee in the exit interview. We agrec

!with the S'aff that the changes were not instituted early enough, and then only through Staff induence, for mitigation to be appropriate. Accordingly, we deny any mitigation.

Concitisions of Law-

1. 'As in part claimed by the NRC Staff, the Licensee committed Violation 1.A.1, but only insofar as it asserts that field audit inspection reports, dated July 20,1987, and July 21, 1987, documenting audits of two radiographers, were created by the VP/RSO, and that one audit, on July 21,1987, was never a

n'saa acna se, apra.

N Tt $15 (Cuano)..

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performed. Contrary to the concimion of the StalT, a field audit was performed on July 20,1987.

2.

Violation I.A.2 was committed t.y the Lict nsec, as claimed by the Staff and admitted by the Lkansee.

3. Violation 1.11 was cornmitted by the Licensee in part, to the extent that the VP/RSO incorrectly advised NRC representatives that le personally performed the July 21, 1987 audit and die statement was material because it had die potential to affect an ongoing NRC review of the matter. The record fails to support the allegation that the VP/RSO stated that he "made up" the audit report to give the appearance of compliance with tic quarterly audit requirernent.

4.

Contrary to the claim of the Staff, the foregoing violations do not comp-ise a Severity Level 11 violation, inasmtch as they did not involvc attempts to mislead the NRC. -

5. These violations in the aggregate amount te a Severity Level til violation and warrant a base civil penalty of $5000.

6. Tie Staff has not sought escalation of the base civil penalty. Mitigation, as sought by the Licensee, is not warranted.

7.

Accordingly, a civil penalty of $5000 should te substituted for the 58000 sought by the Staff and be imposed on and assessed against the Licensee.

Order On the basis of the foregoing opinion, including findings of fact, conclusions of law, and the entire record, it is, this 29th day of Januarv 1992, ORDERED.

- 1.

Tic Order Imposing a Civil Monetary Penalty, &.,c4 August 29,1990, is madifed by substituting a civil monetary penalty of $5000 for the $8000

---originally sought by the Order.

2.

A civil penalty of $5000 is hereby assessed against the Licensee, Certified Testing Laboratories, Inc.

3. This Initial Decision is effective immediately and, in accordance with 10 C.F.R. { 2.760 of the Commission's Rules of Practice, shall become the final action of the Commission forty (40) days from the date of its issuance, unless any party petitions for Commission review in accordance with 10 C.F.R. 6 2.786 or the Commission takes review sua sponse. Sec 10 C.F.R., 5 2.786, as amended effective July 29,1991 (56 Fed. Reg. 29,403 (June 27,1991)).

4. - Within fifteen (15) days after service of this Decision, any party may

~

seek review of this Decision by filing a pctition for review by the Commission on the grounds specified in 10 C.F.R. 6 2.786(b)(4). 'lhe filing of a petition for review is marxtatory for a party to exhaust its administrative remedies tg; fore seeking judicial review.10 C.F.R. 5 2.786(b)(1).

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5.

The petition for review shall be no longer than ten (10) pages arx! sh:dl contain'the information set forth in 10 C.F.R, 6 2.786(bX2). Any other party may, within ten (10) days after service of a petition for review. file an answer

' supporting or opposing Commission review, Such an answer shail be no longer than ten (10) pages and, to the extent appropriate, should concisely address the matters in 10 C.F.R. 5 2.7f(>(bX2). The petitioning party shall have no right to reply, execpt as permitted by the Commission.

1.

THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dr. Cadet it Hand, Jr. (by C.B.)

ADMINISTRATIVE JUDGE Elizabeth B. Johnson ADMINISTRATIVE JUDGE Bethesda, Maryland Jr.nuary 29,1992 r