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EA-97-226 - HTP, Inc.EA 97-226 Mr. Samuel Berkowitz, President
SUBJECT: NOTICE OF VIOLATION AND PROPOSED CIVIL PENALTY - $5,500,
NOTIFICATION OF CONSIDERATION OF THE IMPOSITION OF DAILY CIVIL
PENALTIES, AND DEMAND FOR INFORMATION
Dear Mr. Berkowitz: HTP, Inc., (HTP) is the holder of expired Byproduct Material License No. 37-28463-01 (license) that was originally issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30 on January 17, 1990. The license authorized the possession and use of cadmium-109 and americium-241 sealed sources at HTP's facility located at 700 South Dock Street, Sharon, Pennsylvania. Your license expired on January 31, 1995. Although by letter dated January 31, 1995, you requested renewal of your license, your request was received without the prescribed application fee. HTP failed to pay the application fee despite a February 7, 1995 letter from the NRC requesting payment, as well as telephone calls from the NRC on October 20, 1995 and March 6, 1996. Finally, in our letter dated May 25, 1996, you were informed that, since you had not paid the required fee, the application was not in accordance with 10 CFR 30.36, which states that each specific license expires at the end of the day on the expiration date stated in the license unless the licensee has filed an application for renewal accompanied by a required fee. The May 25, 1996 letter also informed you that you were required to comply with the Commission's requirements set forth in 10 CFR 30.36, "Expiration and Termination of Licenses." This regulation requires that within 60 days of the expiration of its license, the licensee begin decommissioning its facility and that within the subsequent 24 months, the licensee complete the decommissioning. In this case, decommissioning means properly transferring all licensed material. Subsequently, an inspection was held at your facility on October 10, 1996. By letter dated November 12, 1996, we informed you that, pursuant to information received during the inspection and a telephone conversation held with Mr. Richard Goodman, your Chief Operating Officer and Radiation Safety Officer (RSO) on October 16, 1996, it was our understanding that HTP planned to properly dispose of the sealed sources in its possession as expeditiously as possible. We also stated in that letter that the only action necessary to decommission your site was the transfer of the sealed sources in your possession to an authorized recipient. We emphasized, however, that you were required to promptly divest yourself of all previously licensed byproduct material in your possession and that your failure to do so by March 31, 1997, would result in your being in violation of 10 CFR 30.36 and could result in significant enforcement action. Notwithstanding the above, the NRC has determined that, as of this date, you have not met these requirements. During a telephone conversation on April 21, 1997, between Mr. Goodman and Mr. C. Thor Oberg of this office, Mr. Goodman stated that you realized that you were required to divest yourself of the licensed material by March 31, 1997, but had not been able to do this as planned. Mr. Goodman also provided a facsimile on April 23, 1997, which outlined your activities since October 16, 1996, to dispose of the licensed material. In a subsequent telephone conversation on April 29, 1997, Mr. Goodman explained that he was planning to transfer the licensed material by May 13, 1997. In additional telephone conversations with your staff on April 29 and May 21, 1997, we have emphasized the necessity of your complying with the NRC requirements. However, as of this date you still possess the sealed sources. We have, therefore, concluded that you are in willful violation of NRC requirements. The violation is described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice). Willful violations of NRC requirements are a significant regulatory concern because the conduct of licensed activities in accordance with the Act and the Commission's requirements depends largely on the integrity of individuals conducting NRC-licensed activities. Your continued possession of licensed material, despite the notifications made to you, is particularly serious. Therefore, the violation described in the enclosed Notice has been classified as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation.1 Because the violation was willful, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. No credit is warranted for identification because the NRC identified the violation. No credit is warranted for your corrective actions because you remain in possession of licensed material and have not decommissioned your facility, as required. Therefore, to emphasize the unacceptability of willful violations and the need to comply with Commission regulations, I am issuing the enclosed Notice proposing a civil penalty of twice the base amount, or $5,500, for the violations set forth in the enclosed Notice. However, the NRC staff will provide you with a grace period of 30 days; that is, if you transfer the byproduct material to an authorized recipient within 30 days of the date of this letter and comply with the other requirements of 10 CFR 30.36, the NRC will forego imposition of the $5,500 civil penalty in the enclosed Notice. Your expired license will be terminated by written notice in accordance with 10 CFR 30.36(j) when the NRC determines that all licensed material has been transferred. In addition to the $5,500 civil penalty proposed for the violation in the attached Notice, given the regulatory significance of this case, if HTP does not transfer the sealed sources within 30 days of the date of this letter, you are hereby notified that the NRC intends to consider daily civil penalties of $500 per day. Daily civil penalties are justified because you clearly were aware that you were in violation of NRC requirements, and yet you failed to take effective corrective actions. If assessed, the daily civil penalty would continue until the sealed sources are properly transferred, and would be imposed for each thirty day period at $15,000 per period, with the first such period beginning 30 days after the date of this letter. If HTP properly transfers the sealed sources within 30 days of the date of this letter, daily civil penalties would not be assessed. You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In addition to the response required above, the Commission requires further information concerning the transfer of the sources so that the Commission can have reasonable assurance that these activities are conducted in accordance with NRC requirements. Accordingly, pursuant to sections 161c, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204 and 10 CFR 30.32(b), in order to determine whether action should be taken to assure compliance with NRC regulatory requirements, HTP is required, pursuant to this Demand for Information, to provide the following information: 1. At least two working days prior to the date of the transfer of the byproduct material (sealed sources), notify Mr. John D. Kinneman, Chief, Nuclear Materials Safety Branch 2, NRC, Region I, by telephone (610-337-5252) so that the NRC may, if it elects, observe the transfer. Failure to comply with the provisions of this Demand for Information may result in further enforcement action. Questions concerning the Notice or Demand for Information should be addressed to James Lieberman, Director, Office of Enforcement, who can be reached at (301) 415-2740. In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room.
Sincerely,
Hubert J. Miller
Regional Administrator
License No. 37-28463-01 - Expired Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty
AND PROPOSED IMPOSITION OF CIVIL PENALTY
HTP, Inc. Docket No. 030-31445
Sharon, Pennsylvania License No. 37-28463-01
(Expired January 31, 1995)
EA 97-226
Based on a review of communications between the NRC and HTP, Inc. during the period of May 26, 1996, to May 21, 1997, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and associated civil penalty are set forth below: 10 CFR 30.36(d)(1) requires, in part, that within 60 days of license expiration, the licensee begin decommissioning its site. 10 CFR 30.36(h) requires, in part that, except in certain circumstances not applicable in this case, the licensee complete decommissioning the site as soon as practicable, but no later than 24 months following the initiation of decommissioning. This is a Severity Level III violation (Supplement VI). Pursuant to the provisions of 10 CFR 2.201, HTP, Incorporated (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an Order or a Demand for Information may be issued. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation. Within the same time as provided for the response required above under 10 CFR 2.201, HTP may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty. In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty. Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c. The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I. Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21. Dated at Rockville, Maryland
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