ML20246G349

Responds to NRC 890322 Notice of Violation & Proposed Imposition of Civil Penalty in Amount of $2,500.Legal Reason Why Penalty Should Not Be Imposed Discussed

ML20246G349
Person / Time
Site:	Armed Forces Radiobiology Research Institute
Issue date:	05/04/1989
From:	Irving G ARMED FORCES RADIOBIOLOGICAL RESEARCH INSTITUTE
To:	NRC OFFICE OF ENFORCEMENT (OE)
References
NUDOCS 8905150279
Download: ML20246G349 (2)

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DEFENSE NUCLEAR AGENCY F " "A ARMED FORCES HADioDIOLOGY RESE ARCH INSTITUTE BETH ESD A, M A RY LAN D 20814-5415 MAY 4 EE9 Director Office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 Re: Answer to a Notice of Violation

Dear Sir:

This answer is being filed pursuant to 10 CFR 2.205 with regard to U.S. Nuclear Regulatory Commission (NRC) letter dated March 22, 1989,

Subject:

Notice of Violation and Proposed Imposition of Civil Penalty (NRC Inspection Report No. 50-170/88-04).

For the reasons which. appear below', the proposed civil penalty in the amount of $2,500 should not be imposed. Our position on this matter is, in summary, that: there are legal reasons (peculiar to the Armed Forces Radiobiology Institute's Etatus as a coordinate part of the executive branch of the Federal Government) which prohibit imposition of the civil penalty; there are additional reasons why, as a matter of federal appropriations law, the civil penalty may not be payable even if it is assumed that it can be imposed by one part of the Federal Government on another; and, notwithstanding the foregoing, given the additional factual matters which are more fully set described in the Reply to a Notice of Violation, a civil penalty is not warranted under the circumstances.

We are aware of the current request for a ruling from the Office of Legal Counsel, Department of Justice, submitted by the Air Force on March 17, 1989, and of the NRC's reply thereto dated April 18, 1989, on the constitutionality of the imposition of civil penalties by the NRC on another agency of the Federal Government. This request for a ruling was submitted pursuant to 28 U.S.C. SS13 and paragraph 1-401 of Executive Order 12146. The Armed Forces Radiobiology Research Institute will be guided by the Office of Legal Counsel's opinion and will abide by the outcome of the Air Force case.

If the assumption is made that one element of the Federal Government is permitted, as a matter of constitutional law, to impose civil penalties on another element, a legitimate question arises as to whether or not an agency's appropriation is available to pay the penalty. Pursuant to 31 U.S.C. S3526, the Comptroller General has the authority to " settle all accounts of the United States Government." The Comptroller General has previously held that 8905150279 890504 PDR ADOCK 05000170

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I certain penalties may in fact be paid. For example, pursuant to the section 118 of the Clear Air Act, as amended, 42 U.S.C. S7418, civil penalties imposed for violating local air quality standards may be paid. In the matter of Civil Penalties Imposed on Federal Acencies for Violation of Local Air Quality Standards - Source of Funds for Payment, 58 Comp. Gen. 667 (1979). . A different result is reached, however, in situations where one Federal agency assesses a penalty against another. In an unpublished decision (B-161457, May 9, 1978) the Comptroller General held that penalties assessed by the. Internal Revenue Service for late filing or underpayment of employment texes could not be paid _from an agency's appropriations'since thic would constitute a use of the funds for purposes other than.that for which-they were appropriated. Under these circumstances, prudence dictates that the applicable disbursing or certifying official request an advance decision from the Comptroller General under .

31 U.S.C. S3529. Accordingly, action will be taken to obtain such a decision.

The most significant of the alleged violations appears to have been-Violation D which relates to discrimination against an employee who raised safety concerns. As our Reply to a Notice of Vi'olation . . ,

points out on pages 9 through 13, and as is clear.from a careful review of the enclosure to our Reply, the employee who brought safety matters to our attention was not discriminated against.

Indeed, management's actions, both immediate and sustained, were focused on obtaining more information about her safety concerns, not on attempting to suppress the allegations.

.Now that-the facts have been presented in our Reply to a' Notice of Violation, it is clear that, even as to those violations which are admitted, the problems actually present'were not of environmental or safety significance and accordingly do not warrant imposition of a fine. Moreover management has taken action promptly to correct the observed deficiencies. We do not, therefore, believe we should be fined.

Sincerely,

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W~

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/ GEORG

/1. IRVING, I I Colo , USAF, BSC Director I

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