IR 015000009/1996009

Discusses Insp Rept 15000009/96-09 Conducted on 960807-08. NRC Exercising Enforcement Discretion Based on Circumstances Described in Insp Rept

ML20134D363
Person / Time
Site:	15000009, 015000009
Issue date:	10/07/1996
From:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
To:	Baily J AFFILIATION NOT ASSIGNED
References
EA-96-312, NUDOCS 9610220050
Download: ML20134D363 (3)

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l October 7. 1996  !

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EA 96-312 Baily Engineering and Testing. Inc.

ATTN: Mr. Joseph Baily President l P.O. Box 427 l Pensacola. Florida 32592-0427 SUBJECT: EXERCISE OF ENFORCEMENT DISCRETION i (NRC INSPECTION REPORT NO. 150-00009/96-09) 1

Dear Mr. Baily:

This refers to the s]ecial, unannounced inspection conducted by this office on l August 7-8, 1996. T1e results of this inspection were provided to you in our l letter dated September 5. 1996. At that time you were informed that the l inspection had identified one apparent violation. the failure to obtain a general or specific NRC license, as required by 10 CFR 30.3. prior to using portable nuclear gauges containing by-product material. Specifically, since 1990 you used portable nuclear gauges on numerous occasions at Eglin Air i Force Base (AFB) and Hurlburt Field. Florida, in areas where the NRC maintains l jurisdiction for regulating the use of by-3roduct material without an NRC  !

license. You were informed at that time tlat the apparent violation was under l consideration for enforcement. Subsequent to issuance of the inspection report, the NRC determined that Hurlburt Field. Florida is not an area of exclusive Federal jurisdiction: therefore. the work you performed at that  !

location did not require an NRC license. l Although the requirements of 10 CFR 30.3 apply to work performed in areas of exclusive Federal jurisdiction in Agreement St6tes, we also note that as an alternative to obtaining an NRC license, as permitted by NRC practice.

Baily Engineering and Testing. Inc. (BETI) could have filed an NRC Form-241, paid the associated fees, and conducted these activities as described in 10 CFR 150.20.

The inspection established that your representatives did not appear to be aware of the need to either have a specific license under 10 CFR 30.3 or in lieu thereof, to file a Form-241 with the NRC. The inspection also determined that you relied on base personnel to inform you of the applicable regulatory requirements regarding licensed activities performed by you at their respective facilities. As a result, you believed that the work could be performed under authorization provided through your State of Florida Radioactive Materials License.

Normally, the failure to obtain an NRC license or failure to file an NRC Form-241 to notify the NRC of activities being conducted within its jurisdiction would be considered for escalated enforcement action which could include the issuance of a civil penalty in accordance with the " General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement 220013 9610220050 961007 PDR STPRO ESGF g y/ ,

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Bailey Engineering and Testing. Inc. 2 Policy). NUREG-1600. However, after consultation with the Director. Office of Enforcement, and the Deputy Executive Director for Nuclear Materials Safety.

Safeguards, and Operations Support, the NRC is exercising enforcement discretion and is not taking any enforcement action in this matter, in accordance with Section VII.B.6 of the Enforcement Policy. The NRC is exercising enforcement discretion based on the circumstances described above and in the subject inspection report, including our conclusions that you did not intentionally fail to obtain the proper license and that BETI did not understand the regulatory requirements pertaining to use of licensed materials in areas of exclusive Federal jurisdiction within an Agreement State. In reaching this decision, the NRC also considered the efforts taken by BETI to become familiar with applicable NRC requirements, the fact that BETI was not made aware by Eglin AFB contracting personnel that the bases contained areas of exclusive Federal jurisdiction, and our conclusions that activities conducted by BETI at this faci M y appeared to have been done safely and generally in accordance with tWconditions of your Florida license.

Although the NRC is exercising enforcement discretion based on the circumstances identified during the inspection, you are advised that future failures to seek appropriate authorization to perform activities in areas where the NRC maintains jurisdiction will result in significant enforcement action. We would expect that, in the future. BETI would obtain written assessments from, or document assessments by. Federal authorities as to whether a ]roposed work site is in an area of exclusive Federal jurisdiction.

Absent suc1 documentation showing that Federal authorities assessed the work site as not being in an area of exclusive Federal jurisdiction, significant enforcement action may be taken for failure to seek the required authorization to perform licensed activities in areas of exclusive Federal jurisdiction.

In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice." a copy of this letter and any reply will be placed in the NRC Public Document Room.

Should you have any questions regarding this inspection, please contact Mr. Charles Hosey at (404) 331-5614.

Sincerely

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Stewart . bneter Regional Administrator Docket No.- 150-00009/96-09 Florida License No. 1926-1 cc: State of Florida l

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Bailey Engineering and Testing. Inc.

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Distribution

! EJulian, SECY i BKeeling. CA JTaylor. ED0 I HThompson. DEDS SEbneter. RII

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CPaperiello. NMSS DCool, NMSS

LChandler. OGC

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JGoldberg. 0GC

Enforcement Coordinators

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EHayden. OPA '

HBell. OIG

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GCaputo. OI EJordan. AEOD JLieberman OE i MThomas. OE l OE:EA File (BSummers)(2 Letterhead)

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Buryc. RII

CHosey. RII

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KClark. RII RTrojanowski,RII ABoland. RII PUBLIC l

i SEND TO PtJBLIC 00CtMNT R00PO / YES / NO OFFICE Ril ORS RII ETC b'Ril ORA Rt!-ORA Signature NAME EMALLETT BURYC CEVANS LREYES OATE 09/ /% 09/ /% 09/ /% 09/ /96 COPY 7 YES NO YES NO YES NO YES NO UrFiliAL KtLUKU LUeY UULUMth i NNit ; N ; \ l96vFLN . tNF \ 9eJ 126t . DI R\F I NAL . S IG

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l This case is not exempt from OE's enforcement action timeliness requirements.

Attachments: 1. Draft Letter to Chadbourne 2. Draft Letter to Okaloosa 3. Draft Letter to Bailey 4. Draft Letter to Jacobs l

! cc w/ attachments: D. Cool, MSS l J. Goldberg, OGC

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