ML19270F850
| ML19270F850 | |
| Person / Time | |
|---|---|
| Issue date: | 02/26/1979 |
| From: | Cyr K, Lieberman J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7903270613 | |
| Download: ML19270F850 (26) | |
Text
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UNITED STATES OF A" ERICA NUCLEAR REGULATORY COPNISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 30ARD In the "atter of
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Radiation Technology, Inc.
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By-product Material License Lake Cenmark Road
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No. 29-13613-02 Rockaway, New Jersey 07866
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BRIEF IN SUPPORT OF STAFF'S EXCEPTIONS TO THE INITIAL DECISION Februa ry 26, 1979 James Lieberman Karen D. Cyr Counsel for NRC Staff 7903270(o\\ 3>
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0iCIISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
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Radiation Technology, Inc.
By-product Material License Lake Denmark Road No. 29-13613-02 Rockaway, New Jersey 07866 BRIEF IN SUPPORT OF STAFF'S EXCEPTIONS TO THE INITIAL DECISION e
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TABLE OF CONTENTS Pace CITATIONS....................................................
ii INTRODUCTION.................................................
1 STATEMENT OF FACTS...........................................
2 ARGUMENT.....................................................
8 I.
LICENSEE FAILED TO LIMIT RADIATION LEVELS IN UNRESTRICTED AREAS AS REQUIRED BY 10 C FR 2 0.10 5 ( b )....................................
8 A.
The Initial Decision Erred by Ignoring the 55-Gallon Drum..............................
8 B.
Admission as to Radiation Level Leaves No Basis for Rejecting Penalty for 55-Gallon Drum............................................
10 II.
LICENSEE FAILED TO PROVIDE CONSTANT SURVEILLANCE AND IMMEDIATE CONTROL TO THE LICENSED MATERIAL IN UNRESTRICTED AREAS AS REQUIRED BY 10 CFR 20.207...
12 A.
The Initial Decision Erred by Ignoring the 55-Gallon Drum..............................
12 B.
Section 20.207 Prohibits Licensed Material in Unrestricted Areas Unless Secured or Controlled......................................
13 C.
Constant Surveillance and Immediate Control Is Required Of Unsecured Licensed Material in Unrestricted Areas..............................
14 D.
A Violation Occurred as Constant Surveillance and Immediate Control Was Not Given to Licensed Material in Unrestricted Areas.........
18 III. CONCLUSION..........................................
21
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LEGAL CITATIONS Page
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FEDERAL COURT DECISIONS McBoyle v. United States 283 U.S. 25 (1931)......................................
17 Mercantile Bank & Trust v. United States 441 F. 2d 364 (8th Ci r. 1971 )............................
17 ADMINISTRATIVE DECISIONS Public Service Co. of New Hamoshire (Seabrook Station, Uni ts 1 - & 2), ALAB-422, 6 NRC 33 (1977).................
22 X-Ray Engineering Ccmoany, Intermediate Decision, 1 AEC 466 (1960)........................................
15 STATUTE Administrative Procedure Act 5 U.S.C. 557............................................
22 REGULATIONS 10 CFR Part 2 10 CFR 2.785.............................................
22 10 CFR Part 20:
Current Versions 10 CFR 20.3(a)(14)......................................
17 10 CFR 20.3(a)(17).....................................
12, 14, 17 1 0 C F R 2 0.1 0 5...........................................
13 10 C F R 2 0.10 5 ( a )........................................
8 10 CFR 20.105(b)........................................
7, 8 10 CFR 20. 2 07................................
7, 12, 14, 15, 16, 17, 18 10 CFR 20.207(a)........................................
12, 15 10 CFR 20.207(b)........................................
12, 18 10 CFR Part 20: Previous Versions 10 CFR 20.3(a)(12)(1957)................................
14 10 CFR 20.26, 20 Fed. Reg. 5101 ( 19 5 5 )..................
15
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Page MISCELLA*iEOUS MATERIALS American College Dictionary (Random House 1970)..............
16, 17 Sutherland, Statutory Cor.struction, Sec. 45.08 (4thed.1972)..........................................
17 40 Fed. Reg. 26679 (1975)....................................
16 9
i ii -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Radiation Technology, Inc.
By-product Material Lake Denmark Road
)
License No. 29-13613-02 Rockaway, New Jersey 07866
)
BRIEF IN SUPPORT OF STAFF'S EXCEPTIONS TO THd INITIAL DECISION By Order dated March 4,1977 the Director of the Office of Inspection and Enforcement imposed civil penalties in the amount of $4,800.00 against Radiation Technology, Inc. (Licensee) E or nine items of noncompliance f
disclosed during an inspection conducted on October 27 and November 1,1976.E On April 1,1977, the Licensee invoked its right to a hearing on each of the nineitems.E A hearing was held before an Administrative Law Judge U who subsequently issued a decision affirming the civil penalties for seven of y Throughout this brief the term " Licensee" will be used to refer not only to the corporate entity but also to its President, Dr. Martin Welt.
-2/ The items of noncompliance were set out in the Notice of Violation dated January 5, 1977, which was accompanied by the Notice of Proposed Imposition of Civil Penalties. The Licensee responded to these notices by letter dated January 31, 1977. Subsequently, on March 4,1977 the Order Imposing Civil Penalties was issued.
y Letter dated April 1,1977, to the Director, Office of Inspection and Enforcement.
In response to the Licensee's recuest the Commission issued on April 15, 1977, a Notice of Hearing specifying the issues to be litigated.
y A prehearing conference was held on June 15, 1977.
Eight days of hearings were held in Morristown, New Jersey. The evidentiary record was closed on June 11, 1978.
the nine items and remitting the penalties for two items (Items 4 and 5).E/
The Staff has taken exception to Judge Jensch's decision to remit the penalties for Items 4 and 5 because the decision totally ignores a major component of the citations and because an important interpretation of the regulations governing licensed material in unrestricted areas is involved.6_/
STATEMENT OF FACTS During the course of an inspection of the Licensee's plant on October 27, 1976, NRC inspectors observed two containers in unrestricted areas outside of the plant buildings.E One container has generally been referred to as a " steel container",8/ or" canister".E It was located outside the mechan-ical room, five to fifteen feet from the door. E The other container has generally been referred to as a "55-gallon drum" located at the north end S/ Radiation Technoloov, Inc., ALJ-78-46 (November 24,1978).
-6/ The Staff exceptions were filed on December 7, 1978. The Staff excepted to the Administrative Law Judge's failure to consider the complete citations for Itens 4 and 5 (Exceptions 1 and 2), failure to correctly interpret " constant surveillance and immediate control" (Exception 3),
and his finding that adequate controls existed over material in unrestricted areas. (Exception 4) 7/ Smith's testimony p.6, McClintock's testimony p.6, following Tr.107.
The areas where the containers were located were not inaccessible and persons were present that could have approached the containers.
Id.;
McClintock's Re-direct at 6-8, following Tr.1816; Glenn's Re-direct at 6-7, following Tr.1830.
8] Notice of Violation, Item 4a.
9/ For example, Tr. 136-140, 1912-1919.
10/ Tr. 136.
of the materials storage area, E "outside the warehouse door". E The Licensee " acknowledges that the two containers were in the positions so noted by the inspectors" E and concedes that these locations were un-restricted areas. E One of the two or three E Licensee employees on duty on October 27, 1976, "was aware of the [ steel) canister being outside". E
- r. Powell, M
the plant manager, said:
"We were not oblivious to it. As I said, we did know it was there, but I didn't have a man stand-ing there eight hours of the day just watching that canister..." H /
11/ Notice of Violation, Item 4b. ficClintock's testimony p.6, following Tr.107.
R/ Licensee's response to Notice of Violation dated January 31, 1977, at 4.
13/
Id.
1_4/ Id. "According to the NRC inspectors, two containers were found on October 27, 1976, in unrestricted areas containing surface dose rates in excess of the above requirement. Radiation Technology, Inc.
acknowledges that the two containers were in the position so noted by the inspectors, however, these were extenuating circumstances...". Id_.
See also 37, 53, 55, 801.
1_5/ Tr. 51, 316,' 636.
16/ Tr. 314.
E/ Tr. 315.
Licensee employees performing tneir duties cculd not maintain visual contact with the steel canister.18/
With regard to the 55-gallcn drum, Dr. Welt said:
"The Ccmpany agrees with the NRC in the fact that the itens [ sic] cited in a(b) [a 55-gallon drum]
was in an unrestricted area and was not under constant surveillance and immediate control of the Licensee."
19f 9
The inspectors stated that on the day of the inspection there was no barrier to prevent then from walking right up to the two containers nor were there any chains or other security devices. 20/
_1_8_/ Tr. 313.
_19/ Tr. 55.
20/ Smith's testimony at 7, "cClintock's testinony at 6, follcwing Tr. 107; Tr. 234. With respect to the steel centainer, the container was filled with resin material used as part cf the cleanup of the ; col water. Tr. 239, 799.
This centainer has been placed outside the mechanical reca on Octcber 26, 1976, and again en the day of the inspection. Tr. 303.
With respect to the 55-gallon drum, the drun had been part of an experiment which had been terminated several months crior to the NRC inspecticn.
Tr. 49.
The Licensee stated that the area around the drun had been chained and that "it was under close control and observation 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day" during this ex;eriment.
Id. On the day of the inspection the Licensee stated the chain was lying on the ground near the drum. Tr. 664 Levels of radiation at the surface of the steel container and the 55-gallon drum were measured by the inspectors on October 27, 1976. El The measurements showed a level of 95 mR/hr for the steel container and a level of 40 mR/hr for the 55-gallon drum. El The inspectors used two _3/
2 Geiger /Mueller detection instruments to ascertain the levels of radiation at the surfaces of the two containers.
These instruments were calibrated periodically.El Before taking an instrument out on an inspection it was the practice of these insp'ectors to check to see if the instrument was operable (i.e., whether the needle moved when the instrument was turned on),El but not to check to see if the instrument responded accurately to a check source.El Accuracy was assumed to be adequately assured by the periodic calibration program to which each instrument was subjected.EI The possibility that the instruments used to measure the radiation levels were not accurate cannot be excluded. 0!
The Licensee stated that the steel container was surveyed on October 26, 1976, El the day on which it was moved to the location outside the mechanical H/ McClintock's testimony p.6, Smith's testimony at 6, following Tr.107.
22/ Id.
M/ Smith's testimony at 2, following Tr. 107, 631, 802-804 24/ Tr. 407, 1691.
M/ Tr. 409, 411, 418.
M/ Tr. 418 E/ Tr. 407, 428.
28/ Tr. 425.
H/ Tr. 36, 37.
room door. EI A reason given by the Licensee for moving,the steel container was "because they [the company] knew it contained a radiation level that you wouldn't want to have a man working in proximity to for a number of hours".El The Licensee could not recall the exact readings but asserted that they were "substantially lower" than those taken by the inspector.
I In attempting to quantify how much lower, the Licensee's President, Dr. Welt, stated that the "only thing I would have as a guide would be the comparison readings that were taken in the R&D room which were reported, which McClintock acknowledged, and that was a difference between 20 mR/hr and a 8 mR/hr, as I recall. But I don't recall - I did not have an opportunity to go ahead and check the canister."El When asked "would you agree that the readings would have been greater than 2 millirems per hour?", Dr. Welt replied as follows:
A "I understand fully the liability in making that statement here, and since I don't have any factual information as to what they are --
Q So you can't state either way?
A I can't state." E l 30/ Tr. 303.
3_lf Tr. 241-242, See also 345.
3_2/ Tr. 1918 33/ Id.
---34/
Tr. 1918-1919. The Licensee had not raised the question of different readings on the steel container in its response to the Notice of Viola-tion, at the prehearing conference, nor at a meeting held on December 5, 1977 with Staff counsel to review the respective positions of the parties. Tr. 1915-1917.
_7 At some unspecified time prior to the inspection the Licensee measured the radiation level of the 55-gallon drum-5/ but " acknowledges that its 3
survey missed the single hot spot on the drum".NI The Licensee conceded that the level of radiation for the 55-gallon drum exceeded 2 mR/hr. E/
Less than six months before the October 27, 1976, inspection, the Licensee had been cited for exceeding permissible levels of radiation in an unrestricted area (10 CFR 20.105(b)) and for having licensed material in an unrestricted area which was neither secured against unauthorized removal nor under constant surveillance and immediate control (10 CFR 20.207). EI The Licensee acknowledged these items of noncompliance.39/ The repetitive nature of Items 4 and 5 was considered in determining the amount of the civil penalties.b 35
_/ Tr. 37, 50.
36/ Id.
3ll 1.d.-
38/ Notice of Violation dated July 2, 1976. The requirements at issue
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for Items 4 and 5 are identical to those forming the basis for the July 2,1976, Notice of Violation.
39/ Licensee's July 12, 1976, response to the July 2,1976, Notice of Violation. At the hearing the Licensee sought to deny its previous written admission stating that it did not choose to contest the citation issued in July,1976, because " heck, it's easier to write a letter". Tr.1156.
"[W]e wrote the letter that we wrote and made the statements that we made just because from a business point of view it was easier to do that, even though we did not agree that we had..."
Tr.1154.
"I suspect that there are many licensees that do the same thing for expediency, which may not be the proper thing to do."
Tr. 1160. See also Tr. 1902.
40/ Staff testimony on the Determination and Anount of the Civil Penalty, at 10 following Tr. 107.
ARGUMENT I.
LICENSEE FAILED TO LIMIT RADIATION LEVELS IN UNRESTRICTED AREAS AS REQUIRED BY 10 CFR 20.105(b)
A.
The Initial Decision Erred by Ignoring the 55-Gallon Drum A violation of 10 CFR 20.105(b) " permissible levels of radiation inunrestrictedareas"wasallegedasItem4.bl/ Section 20.105(b) establishes a requirement, subject to an exception in section 20.105(a) which is not applicable here, that "no licensee shall possess, use or transfer licensed material in such a manner as to create in any unre-stricted area 'from radioactive material and other sources of radiation in his possession:
41/ Item 4 of the Notice of Violation reads in its entirety as follows:
10 CFR 20.105(b), " Permissible levels of radiation in unrestricted areas," requires that radiation levels in unrestricted areas be limited so that if an individual were continuously present in the area, he could not receive a dose in excess of two millirems in any one hour or in excess of 100 millirems in any seven consecutive days.
Contrary to the above, on October 27, 1976, radiation levels in excess of that permitted existed at several locations in the unrestricted area outside of your facility, including the following:
a.
95 mR/hr on the surface of a steel container of contaminated resin located outside the door leading into the mechanical rcom.
b.
40 mR/hr on the surface of a 55-gallon drum containing contaminated recirculation water located outside the overhead door leading into the warehouse connected to the office building.
We note that this infraction is of the same basic requirement as one which was brought to your attention in our letter of July 2,1976.
This is an infraction.
(Civil Penalty $750)
_9_
(1) Radiation levels which, if an individual were continuously present in the area, could result in his receiving a dose in excess of two millirems in any one hour, or (2) Radiation levels which, if an individual were continuously present in the area, could result in his receiving a dose in excess of 100 millirems in any seven consecutive days."
Two instances of violations of 10 CFR 20.105(b) were referred to in Item 4: a " steel container" outside the mechanical room which the inspectors found to be reading 95 mR/ hour, and a "55-gallon drum" outside the warehouse door which the inspectors found to be reading 40 mR/ hour These containers were in unrestricted areas. S/ The Initial Decision's analysis of Item 4 treats the " steel container" EI but does not mention the 55-gallon drum. E l 4_2_/ See Note 14, suora.
2 H/ Init. Dec. at 27.
S/
I d_.
In an effort to discover why the 55-gallon drum was ignored by the Initial Decision, the Staff has identified a typographical error which may well explain (but not condone) the total disconnect which occurred.
Item 4 of the Notice of Violation has, of course, been copied correctly into the record of this proceeding a number of times, most recently in the Initial Decision itself (p. 7).
Regretably, one of the times Item 4 purports to be quoted in the record of this proceeding it is incorrectly quoted.
Even more regretably, the misquotation appears in the Staff's filing of July 28, 1978: NRC Staff's Brief and Proposed Findings of Fact and Conclusions of Law in the Form of a Memorandum and Order, p.3.
This same document, however, clearly recognizes in its substantive dis-cussion of Item 4 that two distinct containers are involved.
Findings numbered 74 and 75, p. 40.
By the time the Staff discovered this typographical error, Judge Jensch had retired and correction of his decision through the appeal process rather than through some reconsideration process appeared the most sensible course to the Staff.
The pivotal significance of the failure to mention the 55-gallon drum lies in the reason advanced in the Initial Decision for rejecting the civil penalty for Item 4.
That reason was that the citation " rests upon a survey meter whose accuracy has not been established"E/. And yet insofar as the 55-gallon drum is concerned the citation does not depend upon a survey reading but rather it is independently supported by the Licensee's admission that the level of radioactivity of the drum exceeded 2 mR/hr. 45A/
B.
Admission As to Radiation Level leaves No Basis for Rejecting Penalty for 55-Gallon Drum The Staff is reluctantly prepared to concede that the portion of Item 4 referring to the steel container reading 95 mR/ hour " rests upon a survey meter whose accuracy has not been established". El However, 45/
Init. Dec. at 27.
45A/ Tr. 37.
-46/
The Staff's concession on this point rests entirely on the fact that it had been the practice of the inspectors to check their survey meters merely to see if the needles moved and not to check them against a standard source to see if the needles moved accurately.
The Staff's concession on this point is made reluctantly because--
the inspectors' instrument checking practices to one side--we believe other evidence in the record tends to confirm the level of radiation measured by the inspectors.
The very fact that Licensee's witness testified that the steel container was moved outside "because they (the company] knew it contained a radiation level that you wouldn't want to have a man working in proximity to for a number of hours",
(Tr. 241-242) suggests that the radiation level of the container exceeded regulatory requirements.
(continued on next page)
. the portion of Item 4 referring to a 55-gallon drum reading 40 mR/ hour does not so rest.
To the contrary, the Licensee admits that the 55-gallon drum had a radiation level in excess of 2 mR/ hour, EI and admits the drum was in an unrestricted area. 47A/ There is, thus, no basis for invalidating the civil penalty for Item 4 insofar as the 55-gallon drum is concerned and one half of the civil penalty for Item 4 should be reinstated.
46/ Continued from previous page -
Moreover the only evidence presented by the Licensee of its perception of the readings was the difference in readings found in the R&D roem (Tr.1918) which if applied to the steel container and 55-gallon drum would still result in readings in excess of 2 mR/hr. See text at note 33, supra.
47/ Tr. 37. The Licensee's admission verifies the Staff's testimony that the drum was reading more than 2 mR/hr.
Smith's testimony at 6, McClintock's testimony at 6, both following Tr.107.
47A/ Tr. 55.
. II.
LICENSEEFAILEDTOPROVIDECONSTANTSURVEILLANCEAf[DIMMEDIATE
_ CONTROL TO THE LICENSED MATERIAL IN UNRESTRICTED AREAS AS REQUIRED BY 10 CFR 20.207 A.
The Initial Decision Erred by Ianoring the 55-Gallon Drum A violation of 10 CFR 20.207, " storage and control of licensed materials in unrestricted area", was alleged as Item 5. $ ection 20.207 S
establishes a requirement that
"(a) Licensed materials stored in an unrestricted area shall be secured from unauthorized removal from the place of storage.
(b) Licensed materials in a unrestricted area and not in storage shall be ti.nded under the constant surveillance and immediate control of the licensee."
48] Item 5 reads in its entirety as follows:
10 CFR 20.207(a), " Storage and control of licensed materials in un-restricted areas," requires that licensed materials, stored in an unrestricted area, be secured against unauthorized removal from the place of storage.10 CFR 20.207(b) requires that licensed materials in an unrestricted area and not in storage must be under constant surveillance and immediate control of the licensee.
As defined in 10 CFR 20.3(a)(17), an unrestricted area means any area, access to which is not controlled by the licensee for purposes of protection of individuals from exposure to radiation and radioactive materials.
Contrary to the above, on October 27, 1976, radioactive material described in Item 4 existed in the unrestricted area outside of your facility and was neither secured against unauthorized removal nor under constant surveillance and immediate control.
We note that this infraction is similar in nature to one brought to your attention in our letter of July 2,1976.
This is an infraction.
(Civil Penalty $750)
Item 5 by its terms refers to the licensed material " described in Item 4". E The material described in Item 4 consisted of the " steel container" described in Item 4a and the "55-gallon drum" described in Item 4b. By misreading Item 4 to include only the steel container, E the Administrative Law Judge failed to give full consideration to Item 5 aswell.E B.
Section 20.207 Prohibits Licensed Material in Unrestricted Areas Unless Secured or Controlled The NRC inspectors fo'und both the steel container and the 55-gallon druminunrestrictedareas.E Under NRC's regulations two, independent criteria must be satisfied when a licensee places licensed material ~ in unrestricted areas. The first criterion involves radiation levels of licensed material.10 CFR 20.105 prohibits radiation levels in unrestricted areas in excess of specified
-49/ Item 5 provides in part " contrary to the avove, on October 27, 1976, radioactive material described in Item 4 existed in the unrestricted areas..." (emphasis added) The Administrative Law Judge realized that Item 5 referenced the object of Item 4.
Init. Dec. at 27.
50/ See subpart IA of this brief.
5_1f The Administrative Law Judge stated "the Civil Penalty allegation by its reference to the steel container necessarily limits the analysis to that container".
Init. Dec. at 28.
_5_2] Smith's testimony at 6, McClintock's testimony at 6, following Tr.107.
2
limits. A violation of that requirement was the subject of Item 4.
The second criterion does not involve radiation levels at all.
Rather, it relates to the acceptable manner of storage and control of licensed material.10 CFR 20.207 prohibits placing licensed material in unrestricted areas unless it's either properly stored or under the " constant surveillance and immediate control" of the licensee. A violation of that requirement was the subject of Item 5.
It is not contested that both the steel container and the 55-gallon drum contained licensed material. Nor is it denied that the containers were not in storage.
Rather, the Initial Decision holds that the containers were adequately controlled. The question, therefore, is whether the two containers of licensed material described in Item 4 were "under the constant surveillance and immediate control of the licensee" in accordance with 10 CFR 20.207 of the Commission's regulations.
C.
Constant Surveillance and Immediate Control is Recuired of Unsecured Licensed Materiai in Unrestricted Areas The Initial Decision states that " general control" is sufficient to comply with 10 CFR 20.207.EE/ The Administrative Law Judge's holding that ES/ s in clear contravention of the plain
" general control" is sufficient i
53/ As the Initial Decision puts it: "If something more than general control is needed, the regulation should be amended to state it specifically."
Init. Dec. at 29.
54/
Id.
. words of the regulation and cannot be supported by the Statement of Consideration for the regulation. EI Under 10 CFR 20.207 licensed material stored in unrestricted areas must be secured against unauthorized removal.
If such material is not in storage, it must be under " constant surveillance and immediate control of the licensee". No other options are acceptable.
The rule as originally proposedEI provided that " licensed material stored in a non-controlled area shall be kept in locked and secured containers".
When the final version was published, El the requirement had become the current paragraph (a) - licensed material in an unrestricted area shall be secured against " unauthorized removal from the place o' storage".
In 1975, the section was significantly clarified by adding the second paragraph.
The Statement of Considerations explained the purpose
-55/ " General control" was found to be the acceptable standard in an earlier case where Judge Jensch presided.
X-Ray Engineerina Company, Intennediate Decision,1 AEC 466, 479 n.15 (1960).
That case dealt with the standard for a restricted area which at the time was simply any area controlled by a' licensee. (10 CFR 20.3(a)(12) 1957) The definition of a restricted area has since been amended to mean an area controlled by a licensee for the purpose of radiation protection.
(10 CFR 20.3(a)(17)). Therefore, the analysis used in X-Ray Engineering is no longer valid.
56/ 10 CFR 20.26, 20 Fed. Reg. 5101 (July 16,1955).
Sp 10 CFR 20.207, 22 Fed. Reg. 548 (January 29,1957).
. of the additien as follows:
"Section 20.207 of 10 CFR Part 20 requires that licensed matcrials stored in an unrestricted area be secured against unau*.horized removal from the place of storage.
The intention of the section is to assure that proper controls are maintained over licensed radioactive mateirals at all tines.
Since the references to " storage" might not clearly convey the intention that constant control be main-tained over all licensed radioactive materials in unrestricted areas, 520.207 is being anended by the addition of clarifying wording to assure unequivocal understanding of the requirement". (emphasis added) 53/
The Statement of Considerations make it clear that proper controls to prevent unauthorized. removal are to be maintained over licensed material at all times.
If there is no locking device or effective barrier to prevent removal,then surveillance and control must be main-tained "at all times". The degree of control required is described in the Statement of Considerations as " constant".
In the regulation the phrase " constant surveillance and immediate control" is used.
The plain meaning of the words chosen by the Commission to describe the degree of control is clear.
Constant means " invariable; uniform, always present, continuing without intermissions". American College Dictionary (Random House 1970).
Immediate means "without intervening medium or agent, direct". American College Sp/ 40 Fed. Reg. 26679 (June 25, 1975).
Dictionary (Random House 1970). As a general rule the plain meaning of words such as the comon or dictionary meaning should govern the interpre-tation of a requirement.
Moreover, there is no indication in the history of Part 20 that any meaning other than the plain meeting of the phrase
" constant surveillance and imediate control" was intended.
The Administrative Law Judge indicated that the Licensee contended that a continuous watch was not required.
But, in fact, that is precisely the standard to be met.
It is not intemittent surveillance and indirect control but constant surveillance and imediate control which is required.
Therefore, if a licensee chooses to place licensed material in an unrestricted area, rather than in a restricted area which is already controlled for radiatien purposes, substitute precautions must be taken as required by 10 CFR 20.207. Pemitting mere general control and the consideration of factors such as'" nearness of personnel, frequency 61 of passing-near by personnel, whatever routines were generally present"
/
is not adequate to achieve the level of protection required by the measures
-/ Sutherland, statutory Constructica, Section 45.08 (4th ed.1972), see 59 also, McBovie v United States, 283 U.S. 25 (1931), Mercantile Bank &
Trust v United States, 441 F.2d 364 (8th Cir.1971).
l 60/ The difference between a " restricted area" and an " unrestricted area' 0
is that the " restricted area" is an " area access to which is controlled by the licensee for purposes of protection of individuals from exposure to radiation and radioactive materials".10 CFR 20.3(a)(14).
An "un-restricted area" is not so controlled.10 CFR 20.3(a)(17).
6_1/ Init. Dec. at 28.
described in 10 CFR 20.207 nor would the consideration of such factors be consistent with the differences between a " restricted" and " unrestricted" The regulation requires controls "at all times". b The standard a rea.
adopted by the Administrative Law Judge in defining control and surveillance cannot be allowed to stand.
D.
A Violation Occurred as Constant Surveillance and Inneciate Control Was flot Given to Licensed Material in Unrestricted Areas As to the steel container, the Initial Decision appears to set forth essentially two bases for its conclusion that " Item 5 is not proven by reliable, probative and substantial evidence that there was a lack of constantsurveillanceandimmediatecontrol".S The first basis seems to be that only " general control" is required by the regulations. b The other basis appears to be Judge Jensch's mis-reading of what was said at the hear-ing by Mr. Powell. As Judge Jensch understands it "an e. ployee witness testified (Tr. 306-314) that he occupied a glass-enclosed area which permitted him to see the object containing sone radioactive material at all times." 65 /
The Initial Decision is in error in characterizing the ustimony at pages 306-314 of the hearing transcript.
62 / Section 20.207(b) states that licensed material must be " tended".
This choice of wording together with " constant" and "innediate" implies the
~
involvement of an active caretaker or overseer. An affimative act by a person is required.
6,3 / Init. Dec. at 29-30. As indicated above the analysis in the Initial Decision of Item 5 ignored the 55-gallen drum.
6,4_/ Init. Dec. at 29. As demonstrated in subcart II C of this brief, the " general control" holding is not in accordance with the applicable regulation.
- 65) g.
. The only reference to the " glass enclosed" area appears at Tr. 311.
There Mr. Powell, the Licensee's plant manager, testified tnat his office was
" glass-enclosed" and that from his office he has " complete visibility of this room and also the cell" (emphasis added).
He did not testify he could maintain constant surveillance of the area outside.
Nor is there any testimony in the record that the " steel container" (which was located "outside the mechan-ical room") was visible at all times. To the contrary Mr. Powell testified as follows regarding the steel canister:
"Q.
Could the employees of Radiation Technology maintain visual contact with a canister that was outside the room on October 26th while performing their duties in the Radiation Technology facility?
A.
Not if it was outside the mechanical room, no.
Q.
On October 26th the canister was outside the mechanical room?
A.
Yes, it was. We put it out there to facilitate maintenance on an air compressor which had broken down." 66]
And, two pages later he said:
"We were not oblivious to it. As I said, we did know it was there, but I didn't have a man standing there eight hours of the day just watching that canister..." 67/
So, the Initial Decision is simply wrong in stating that anyone testified that a " glass-enclosed area" permitted E anyone "to see the object contain-ing some radioactive material at all times."
No one was assigned the responsibility to watch the container full time.N In fact, there were only two or three employees present on the 66/
Tr. 313.
67/
Tr. 315.
6_8/
Of course, even if occupation of such an area " permitted" constant observation, there is no testimony that such constant observation actually took place. The testimcny is directly to the contrary.
Tr. 315.
6j Tr. 315, 317, 318.
shift.N The testimony indicated that on the day before the inspection someone may have been in or near the mechanical room, b though as noted above Mr. Powell testified that when inside one could not see the container outside.b Moreover the Licensee did not present any evidence to refute the testimony of the inspectors that the steel container was not under con-stant surveillance and immediate control or secured against unauthorized removal on the day of the inspection. E The steel container was located near the building and was not inaccess-ible to the public.b Th'ere were persons other than the Licensee's employees who could have approached the area in which the steel container waslocated.E The 55-gallon drum had been part of an experiment by Radiation Tech-nology which had been terminated several months prior to the NRC inspection. E
_70/
Tr. 315, 316.
_7_1/
Tr. 312-317.
7,2/
Tr. 313 2
73/
Smith's Testimony at 7, McClintock's Testimony at 6, following Tr.107.
The Licensee testified that the reason the steel container was not moved was because of the presence of NRC inspectors. However, the container was not scheduled to be moved untii che afternoon. Tr. 319.
In any event, the material should not have been outside evc.1 temporarily without the required controls.
3 Glenn's Re-d. ect at 7, following Tr.1830; ficClintock's Re-direct at 6-8, following Tr.1816.
75/
Tr. 231; Glenn's Re-direct at 7, following Tr.1830.
76
_/
Tr. 50.
. Evidence was submitted by the Licensee that a chain had at one time been in place around the stand where the drum was located,b/ an'd that during the experiment the drum "was under close control and observation 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day."E However, no chain was present on the day of the inspection nor was there any evidence of anyone observing the drum.b The drum was located near the paving of the driveway into the facility and a person could drive to within a few feetofit.b All of this supports the Licensee's admission that the 55-gallon drum was not under constant surveillance and immediate control.E/
In summary, neither the steel container nor the 55-gallon drum were secured or under constant control and imediate surveillance as required by 10 CFR 20.207 and the civil penalty for Item 5 should be reinstated.
III.
CONCLUSION By misreading the Notice of Violation, the Administrative Law Judge ignored the 55-gallon drum which was one of the two containers referred to in the citations for Item 4 and Item 5.
Since the Licensee conceded the radiation level of the 55-gallon drum was in excess of regulatory requirements, and acknowledged that the drum was in an unrestricted area, one half the civil penalty for Item 4 should be reinstated.
H/ Tr. 50.
78/ Tr. 49.
-79/ Tr. 642, 643, 661.
Smith's Testimony at 7, McClintock's Testimony at 6, following Tr. 107.
80/ McClintock's Re-direct Testimony at 8, following Tr.1816.
81/ Tr. 55. The Licensee does claim that the 55-gallon drum as well as the steel container would have been removed on the very day of the inspection but for the NRC inspectors' presence.
Even if that was true, it does not excuse the material being there in the first place without proper controls.
. The civil penalty for Item 5 should be reinstated in its entirety be-cause, contrary to the requirement that licensed material in unrestricted areas (and not in storage) be under constant surveillance and imnediate control, neither the steel container nor the 55-gallon drum were under any more than
" general control". The Initial Decision erred in holding that " general control" of licensed material in unrestricted areas satisfies the applicable standards of 10 CFR 20.207. That holding should be reversed. 82/
Respectfully submitted,
.,.-m
.i.
James Lieberman Counsel for NRC Staff l
b
- *w-
'n. s( /
t// r Karen D. Cyr
./
Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of February,1979.
82/
The Appeal Board has the authority to modify or set aside findings made by an Administrative Law Judge.
5 U.S.C. 557,10 CFR 3 2.785.
See also Public Service Company of New Ham 0 shire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977).
While the Staff recognizes that the Appeal Board may be reluctant in scme circumstances to make findings on its own, the Staff submits that such reluctance is not aporopriate here. The evidentiary record is complete and the facts as well as the legal issues have been thoroughly aired.
"cre-over, the Administrative Law Judge who presided in this case is no longer with the Ccamission. Therefore, the Acpeal Scard should make a final determination of this matter.
UNITED STATES OF A*iERICA NUCLEAR REGULATORY C0l'J11SSION BEFORE THE AT0!iIC SAFETY AND LICENSING APPEAL BOARD In the flatter of
)
)
Radiation Technology, Inc.
)
By-product Material License Lake Denmark Road
)
No. 29-13613-02 Rockaway, flew Jersey 07866
)
CERTIFICATE OF SERVICE I hereby certify that copies of BRIEF IN SUPPORT OF STAFF'S EXCEPTIONS TO THE INITIAL DECISION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the fluclear Regulatory Commission's internal mail system, this 26th day of Feb ruary, 1979.
Mr. Richard S. Salzman, Chairman Dr. itartin A. Welt, President Atomic Safety & Licensing Appeal Board Radiation Technology, Inc.
U.S. Nuclear Regulatory Commission Lake Denmark Road Washington, D.C. 20555 Rockaway, New Jersey 07866 Dr. Lawrence Quarles Docketing and Service Section Atomic Safety & Licensing Appeal Board Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Michael C. Farrar Atomic Safety & Licensing Board Atomic Safety & Licensing Appeal Board Panel
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission -
Washington, D.C. 20555 Washington, D.C. 20555 Hon. Samuel W. Jensch Atomic Safety & Licensing Appeal Chief Administrative Law Judge Panel * (5)
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D.C. 20555 gi. Q 4 :: n x
' Jar.es Lieberman Ccbnsel for NRC Staff
\\J