ML26068A238
| ML26068A238 | |
| Person / Time | |
|---|---|
| Issue date: | 01/29/2026 |
| From: | Flaherty S NRC/NMSS/DMSST/ASPB |
| To: | |
| References | |
| Download: ML26068A238 (0) | |
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Page l 1 4.5 Enforcement Program Elements This section of the application addresses how the Department will respond to routine and escalated enforcement actions. The Departments enforcement procedure utilizes Indianas existing statutory authority for routine and escalated enforcement actions. Additionally, the procedure is modeled after the NRC Enforcement Manual NUREG-1600 and the NRC Enforcement Policy to help assure compatibility between Indianas Agreement Program and the NRC.
Escalated enforcement violations may result in the imposition of civil penalties as described in IC 10-19-12-18, and in accordance with IC 4-21.5. Civil penalties will be imposed and administered through the Indiana Department of Homeland Security Office of Legal Counsel in coordination with the RMCP. If after consultation with the Office of Legal Counsel the RMCP believes there is criminal intent associated with a violation, the case would be referred to the Office of the Indiana Attorney General, local county Elected Prosecutor, and/or Federal Bureau of Investigation for investigation and prosecution.
Guidance for the administration of both routine and escalated enforcement by the program is found in one procedure RMCPP 4.1 Enforcement. RMCPP 4.1 is attached to this section of the application.
4.5.1 Routine Enforcement Procedures RMCPP 4.1 Enforcement describes how the Department will enforce its regulation. Because RMCPP 4.1 Enforcement describes both routine and escalated enforcement procedures, it is attached once to this application section.
This procedure is designed to be a fair and impartial administration of regulatory law. Indiana uses a risk-based approach to scale enforcement actions to the seriousness of the violation.
Indiana has established standard methods of communicating sanctions the licensee. A written notice, in the form of a Notice of Violations (NOV), is provided to the licensee setting forth violations and paths of resolution. The Departments legal counsel will review the wording and format of these notices.
4.5.2 Escalated Enforcement Procedures Escalated enforcement protocols are proceduralized in RMCPP 4.1 Enforcement and are attached to this application section.
Escalated enforcement procedures are designed for serious or repeated violations of regulatory requirements. As with routine enforcement actions, escalated enforcement actions are risk informed and scaled to the actual or potential seriousness of the violation. Escalated enforcement actions are more severe than those used in routine enforcement re"ecting the higher risk of the violations or ineffectiveness of routine enforcement actions to achieve compliance. The program will use escalated enforcement actions to supplement routine enforcement actions. Escalated enforcement actions include, but are not limited to the following:
Civil monetary penalties; Modi"cation, suspension or revocation of the license; and Referral for criminal prosecution through appropriate channels.
Page l 2 Indiana has established standard methods of communication which will be utilized to notify the licensee of the escalated enforcement actions in writing, in the form of a Notice of Violation, using standard wording and format. The Departments legal counsel will review the wording and format of these notices.
Escalated enforcement actions are determined by the Radioactive Control Program Enforcement Committee (RCPEC). The State Fire Marshal serves on the RCPEC and has the ultimate authority to issue all enforcement actions as authorized by IC 22-14-2-4 and IC 22 2-8(e).
Page l 3 Indiana Department of Homeland Security Radioactive Materials Control Program Radioactive Materials Control Program Procedure 4.1, Revision 0 Enforcement Effective Date:
Page l 4
Page l 5 Revision Date Description of Changes 0
Page l 6 Table of Contents 1.0 PURPOSE 1.1 Applicability 1.2 Authority 1.3 References 2.0 ADEQUATE PROTECTION STANDARD 3.0 RESPONSIBILITIES 3.1 Health Physicist (HP) 3.2 Senior Health Physicist (S/HP) 3.3 Radiation Control Program Director (RCPD) 3.4 Radiation Control Program Enforcement Committee 4.0 PROCEDURE 4.1 Identi"cation of Violations 4.2 Assessment of Violations 4.3 Disposition 4.4 Participation in the Enforcement Process 5.0 ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS 5.1 Considerations in Determining Enforcement Actions Involving Individuals
Page l 7 1.0 PURPOSE The State of Indianas Radioactive Materials Control Program (RMCP) Enforcement Policy supports the States mission to ensure adequate protection of public health and safety and protect the environment. Adequate protection is presumptively assured by compliance with RMCP requirements. Compliance with RMCP requirements, including regulations, technical speci"cations, license conditions, and orders, provides reasonably assurance to the State of Indiana and the public that safety and security are being maintained. The application of this Policy ensures that associated enforcement actions properly re"ect the safety or security signi"cance of such violations. Consistent with the objective, the Enforcement Policy endeavors to do the following:
Deter noncompliance by emphasizing the importance of compliance with RMCP requirements.
Encourage prompt identi"cation and prompt comprehensive correction of violations of RMCP requirements.
1.1 Applicability The RMCP Enforcement Policy applies to all RMCP licensees and applicants, to various categories of non-licensees, and to individual employees of licensed and non-licensed entities involved in RMCP-regulated activities. These include, but are not limited to the following:
1.1.1 Organizations and individuals holding RMPC licenses; 1.1.2 License applicants; 1.1.3 Contractors and subcontractors to RMPC licensees; 1.1.4 Vendors supplying safety-related components to RMCP licensees; 1.1.5 Employees of any of the above.
Not all RMCP requirements apply to all of the categories listed above; however, the Department will use the Enforcement Policy, as appropriate, to address violations of RMCP requirements.
It is RMCP policy to hold licensees and applicants responsible for the acts of their employees, contractors, or vendors and their employees, and the RMCP may cite the licensee or applicant for violations committed by its employees, contractors, or vendors and their employees.
The RMCP may use the term licensee in this Policy to generally refer not only to licensees, but also applicants.
1.2 Authority The RMCP derives its authority to license and regulate the use of radioactive materials within the State of Indiana from IC 10-19-13. The RMCPs enforcement program is governed by the regulations outlined in IAC 290 3.
1.3 References
Page l 8 1.3.1 NUREG-1600, General Statement of Policy and Procedures for NRC Enforcement Action 1.3.2 NRC Enforcement Manual 1.3.3 NRC Enforcement Policy 1.3.4 RMCP Enforcement Manual 1.3.5 Indiana Radioactive Materials Rules 2.0 ADEQUATE PROTECTION STANDARD Adequate protection of public health and safety and protection of the environment are the RMCPs fundamental regulatory objectives. Compliance with RMCP requirements plays a critical role in giving the RMCP and the public con"dence that safety and security are being maintained. While adequate protection is presumptively assured by compliance with RMCP requirements, circumstances may arise where new information reveals that an unforeseen hazard or security issue or security event exists or that a substantially greater potential exists for a known hazard to occur. In such situations, the RMCP has the statutory authority to require actions by the licensees, their employees and contractors above and beyond existing regulations to maintain the level of protection necessary to avoid undue risk to public health and safety, and to ensure security of materials.
The RMCP also has the authority to exercise discretion to permit continued operations -
despite the existence of a noncompliance - where the noncompliance is not signi"cant from a risk perspective and does not, in the particular circumstances, pose an undue risk to public health and safety. When noncompliance with RMCP requirements occurs, the RMCP must evaluate the degree of risk posed by that noncompliance to determine whether immediate action is required. If the RMCP determines that the noncompliance itself is of such safety signi"cance that adequate protection is no longer provided, or that the noncompliance was caused by a failure of licensee control so signi"cant that it calls into questions the licensees ability to ensure adequate protection, the RMCP may demand immediate action, up to and including a shutdown or suspension of licensed activities.
Based on the RMCPs evaluation of noncompliance, the appropriate action could include refraining from taking any action, taking speci"c enforcement action including the use of civil penalties, issuing Orders, or providing input to other regulatory actions or assessments, such as increased RMCP oversight of a licensees activities. Since some requirements are more important to safety than others, the RMCP endeavors to use a risk-informed approach when applying RMCP resources to the oversight of licensed activities, including enforcement activities.
3.0 Responsibilities 3.1 Health Physicist (HP)
The HP conducts routine inspections and special inspections in accordance with applicable procedures, rules, and instructions. Once the inspection is complete, the HP will categorize and document any apparent violation of the RMCP rules, orders, or license conditions observed during the inspection. The HP will provide the complete inspection report, with any cited violations, to the S/HP or RCPD for review.
3.2 Senior Health Physicist (S/HP)
Page l 9 The S/HP will review all inspection reports or delegate this review to another quali"ed HP.
The S/HP will also conduct routine inspections and special inspections in accordance with appliable procedures, rules, and instructions. If the S/HP is the principal inspector during an inspection, the S/HP will submit their inspection reports to another S/HP or the RCPD for review. Once the inspection report is "nalized, the S/HP will provide any violations to the RMPD for review.
3.3 Radiation Control Program Director (RCPD)
The RCPD, or their designee, will "nalize all inspection reports. If violations have been reported, the RCPD will determine the next steps as outlined below:
If the inspection report indicates no violation or SL IV violations that have been addressed by the licensee and adequate corrective actions have been implemented, the RCPD will issue an Indiana Inspection Form 591M or a Department letter documenting a closed inspection.
If the proposed violation is SL IV and the licensee has not addressed and/or corrected the violation, the RCPD may issue the Notice of Violation, as designated by the State Fire Marshal.
If the proposed violation is greater than SL IV, the RCPD will present a case for the violation and a recommendation of enforcement to the Radioactive Control Program Enforcement Committee (RCPEC).
Once the RCPEC has determined the appropriate violation and enforcement actions, the RCPD will work with the IDHS General Council to conduct pre-decisional conferences, and issue the violation(s), as appropriate.
3.4 Radioactive Control Program Enforcement Committee (RCPEC)
The RCPEC consists of the Executive Director of IDHS or delegate, IDHS Chief of Staff or delegate, Indiana State Fire Marshal or delegate, representative from IDHS General Council, and representative from IDHS Hazmat Senior Management. RCPM staff will provide technical assistance to the RCPEC.
The RCPD will present all proposed violations greater than SL IV to the RCPEC for review.
The RCPEC will determine the appropriate severity level, enforcement action, civil penalty, and/or order; however, the Indiana State Fire Marshal has the ultimate authority to approve or issue all enforcement actions. The State Fire Marshals powers and law enforcement authority is outlined in IC 22-14-2-4 and IC 22-14-2-8(e).
4.0 RMCP Enforcement Process The RMCPs enforcement process has the following basic steps:
Violations must be identi"ed; The RMCP must assess the severity or signi"cance of the violations; and The RMCP must disposition the violation.
Throughout the process, an organization or individual subject to a RMCP enforcement action has multiple opportunities to provide input.
Page l 10 4.1 Identi"cation of Violations The enforcement process begins with the identi"cation of violations, either through RMCP inspection or investigation, a licensee report or substantiation of an allegation.
All violations are subject to consideration for civil enforcement action; some violations may also be considered for criminal prosecution by the Office of the Attorney General. After a potential violation is identi"ed, it is assessed in accordance with this policy. The RMCPs enforcement assessment process is fact driven, performance based, and when appropriate and possible, risk informed. The RMCP reviews each case being considered for enforcement action on its own merits to ensure that the severity of a violation is characterized at the level appropriate to the safety and security signi"cance of the particular violation.
4.2 Assessment of Violations After a violation is identi"ed, the RMCP assesses its severity or signi"cance (both actual and potential). The severity level (SL) assigned to the violation generally re"ects the assessment of the signi"cance of a violation.
4.2.1 Factors Affecting Assessment of Violations In determining the appropriate enforcement response to a violation, the RMCP considers the four speci"c factors discussed below. Whenever possible, the RMCP uses risk information in assessing the safety or security signi"cance of violations and assigning severity levels. A higher severity level may be warranted for violations that have greater risk, safety, or security signi"cance, while a lower severity level may be appropriate for issues that have lower risk, safety, or security signi"cance. Duration of the violation is also an appropriate consideration in assessing the signi"cance of the violation.
4.2.1.1 Whether the violation resulted in safety or security consequences. In evaluation actual consequences, the RMCP considers issues such as whether the violation resulted in the onsite or offsite releases of radiation or radiation exposures exceeding 290 IAC 3-2-2 (10 CFR Part 20) regulatory limits, loss of signi"cant safety barriers, loss of control of radioactive materials or radiological emergency, or whether the security system did not function as required and, as a result of the failure, a signi"cant event or an event that resulted in an act of radiological sabotage occurred.
4.2.1.2 Whether the violation had potential safety or security consequences. In evaluating potential consequences, the RMCP considers whether the violation created a credible accident, security failure, or exposure scenario that could potentially have signi"cant actual consequences.
4.2.1.3 Whether the violation impacted the ability of the RMCP to perform its regulatory oversight function. The RMCP considers the safety and security implications of noncompliance that may affect the RMCPs ability to carry out its statutory mission. These types of violations include failure to provide complete and accurate information; failures to receive prior RMCP approval for changes in licensed activities, when required; and failure to comply with reporting
Page l 11 requirements, etc. Even inadvertent reporting failures are important because many of the surveillance, quality control and auditing systems on which both the RMCP and its licensees rely to monitor compliance with safety standards are based primarily on complete, accurate, and timely recordkeeping and reporting.
The existence of a regulatory process violation does not automatically mean that the issue is signi"cant to safety or security. In determining the signi"cance of a violation, the RMCP will consider appropriate factors for the particular regulatory process violation. These factors may include the signi"cance of the underlying issue, whether the failure actually impeded or in"uenced regulatory action, the level of individuals involved in the failure and the reason why the failure occurred given their position and training, and whether the failure invalidates the licensing basis.
The severity level of a violation involving the failure to make a required report to the RMCP will depend on the signi"cance of and the circumstances surrounding the matter that should have been reported. However, the severity level of an untimely report, in contrast to no report, may be reduced depending on the circumstances. The RMCP will not normally cite a licensee for a failure to report a condition or event unless the licensee was aware of the condition or event that it failed to report. On the other hand, the Department will normally cite a licensee for a failure to report a condition or event if the licensee knew of the information to be reported and did not recognize that it was required to make a report.
4.2.1.4 Whether the violation involved willfulness. Willful violations are of particular concern because the RMCPs regulatory program is based on licensees and their contractors, employees, and agents acting with integrity and communicating with candor. The RMCP cannot tolerate willful violations. Therefore, a violation may be considered more signi"cant than the underlying noncompliance if it includes indications of willfulness. Violations with willful aspects will typically be considered for escalated enforcement. The term willfulness as used in this policy refers to conduct involving either a careless disregard for requirements or a deliberate violation of requirements or falsi"cation of information. In determining the signi"cance of a violation involving willfulness, the RMCP will consider such factors as the position, training, experience level, and responsibilities of the person involved in the violation, the signi"cance of any underlying violations, the intent of the violator, and the economic or other advantage, if any, gained as a result of the violation. The relative weight given to each of these factors in the signi"cance assessment will depend on the circumstances of the violation.
However, if a licensee refuses to correct a minor violation within a reasonable time such that it willfully continues, the violation should be considered more than minor. Licensees are expected to take signi"cant remedial action in responding to willful violations commensurate with the circumstances, such that the action re"ects the seriousness of the violation, thereby creating a deterrent effect within the licensees organization.
4.2.2 Severity of Violations Under its severity of violations process, the RMCP assesses signi"cance by assigning a severity level to all violation by those subject to the RMCPs enforcement authority as
Page l 12 de"ned in Section 1.2, Applicability of the Enforcement Policy. Recognizing that the regulation of radiological activities in many cases does not lend itself to a mechanistic treatment, judgement and discretion must be exercised in determining the severity levels of the violations and the appropriate enforcement sanctions. This judgement and discretion include the decision to issue an NOV, or to propose or impose a civil penalty and the amount of this penalty, after considering the general principles of this statement of policy and the signi"cance of the violations, as well as the surrounding circumstances.
Severity level designations re"ect different degrees of signi"cance depending on the activity area in which the severity level is designated.
4.2.2.1 Severity level I (SL I) Violations are those that resulted in or could have resulted in serious safety or security consequences (e.g., violations that created the substantial potential for serious safety or security consequences or violations that involved systems failing when called on to prevent or mitigate a serious safety or security event).
4.2.2.2 Severity level II (SL II) Violations are those that resulted in or could have resulted in signi"cant safety or security consequences (e.g., violations that created the potential for substantial safety or security consequences or violations that involved systems not being capable, for an extended period, of preventing or mitigating a serious safety or security event).
4.2.2.3 Severity level III (SL III) Violations are those that resulted in or could have resulted in moderate safety or security consequences (e.g., violations that created a potential for moderate safety or security consequences or violations that involved systems not being capable, for a relatively short period, of preventing or mitigating a serious safety or security event).
4.2.2.4 Severity level IV (SL IV) Violations are those that are less serious, but are of more than minor concern, that resulted in no or relatively inappreciable potential safety or security consequences (e.g., violation that created the potential of more than minor safety or security consequences).
4.2.2.5 Minor Violations are those that are less signi"cant than a SL IV violation. Minor violations do not warrant enforcement actions; however, minor violations must be corrected. If the licensee has already identi"ed the violation and corrective actions have been implemented, and the RMCP feels the corrective actions are adequate, minor violations can be documented as observations.
Examples of violations and the corresponding severity level can be found in the NRC Enforcement Policy.
4.2.3 Escalated Enforcement Violations If the RMCP determines that a violation, or group of violations, exceed a Severity Level IV, the RMCP may consider escalated enforcement action. Escalated violations are normally issued after a pre-decisional enforcement conference or after a licensee has had an opportunity to respond to apparent violations issued within an NOV. This escalation will be determined based on several factors including but not limited to
Page l 13 severity, security, frequency, and willfulness. Violations that may result in escalated enforcement include but are not limited to moderate or signi"cant safety or security consequences, RMCP inspectors may refer to the guidance in the NRC Enforcement Manual to assist in determining if a violation has occurred and the appropriate severity level/category of harm.
Examples of violations and their associated severity levels can be found in the Nuclear Regulatory Commissions Enforcement Policy Section 6.0.
Escalated enforcement violations may result in the imposition of civil penalties as described in IC 10-19-12-18, and in accordance with IC 4-21.5. Civil penalties will be imposed and administered through the Indiana Department of Homeland Security Office of Legal Counsel in coordination with the RMCP.
If a violation requires immediate action to protect public health and safety or the environment, the RCPD, in consultation with Office of General Counsel and Indiana State Fire Marshal, may process and issue a cease-and-desist order and/or impound any sources of radiation in the possession of the licensee and/or person in accordance with IC 10-19-12-17.
4.3 Disposition 4.3.1 Notice of Violations: A Notice of Violation (NOV) is a written notice setting forth one or more violations of a legally binding requirement and normally requires the recipient to provide a written response describing (1) the reasons for the violation or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken by the licensee or other person and the results achieved, (3) the corrective steps that will be taken, and (4) the date when full compliance will be achieved. The RMCP may waive all or portions of a written response to the extent that relevant information has already been provided to the RMCP in writing or documented in a RMCP inspection report or inspection record. The RMCP may require responses to the NOVs to be under oath; however, normally responses under oath will be considered necessary only for SL I, II, or III violations. A civil penalty may be issued in conjunction with a NOV.
4.3.2 Civil Penalty: A civil penalty is a monetary penalty that the RMPC may impose for violations of any RMCP rule adopted under IC 10-19-12, or Order issued by the RMCP.
Based on the circumstance of a speci"c case, the RMCP may increase a civil penalty where application of the guidance in this Policy would normally result in a zero penalty or a base civil penalty, to ensure that the proposed civil penalty re"ects the safety signi"cance of the case. The RMCP will generally impose graduated civil penalties taking into account the gravity of the violation as the primary consideration and the ability to pay as a secondary consideration. Thus, operations involving greater radiological material inventories, signi"cantly higher consequences resulting from a release of or exposure to radioactive material and consequences to the public and workers receive higher civil penalties. Regarding the secondary factor of the ability of various classes of licensees to pay the civil penalties, it is not the RMCPs intention that the economic impact of a civil penalty be so severe that it adversely affects a licensees ability to safely conduct license activities or puts a licensee out of business (Orders, rather than civil penalties, are used when the RCMPs intent is to suspend or terminate licensed activities).
Page l 14 Civil penalties are considered for all SL I, II, and III violations. The civil penalty assessment process described in this section should be followed to determine the appropriateness of a civil penalty for any escalated enforcement action.
The RMCP may exercise discretion and assess a separate violation and impose a civil penalty up to the statutory limit for each day the violation continues. The RMCP may exercise this discretion when a licensee was aware of a violation of at least moderate signi"cance (i.e., at least a SL III) and had a clear opportunity to prevent, identify, and correct the violation but failed to do so.
In evaluating whether daily civil penalties are appropriate, the RMCP will consider such factors as whether the violation resulted in actual consequences to public health and safety, the safety signi"cance of the violation, whether the violation was repetitive because of inadequate corrective action, the degree of management culpability in allowing the violation to continue or in not precluding it, the responsiveness of the licensee once the violation and its signi"cance were identi"ed and understood, whether the continuing violation was willful, and the duration of the violation. These evaluation factors are not necessarily of equal signi"cance; therefore, for each case, the RMCP will weigh the relative importance of each contributing factor, as well as any extenuating circumstances, to determine whether it is appropriate to use daily civil penalties.
The RMCP will consider civil penalties for violations associated with loss of regulated material. The loss of RMCP-regulated material is a signi"cant regulatory and security concern because of the potential unauthorized possession or use of the material and because of the potential for overexposure to members of the public from its misuse.
Such violations may include but are not limited to the loss, abandonment, improper transfer, or improper disposal of a device, source, or other form of regulated material.
For cases involving the willful failure to either "le for reciprocity or obtain a RMCP speci"c license, the RMCP will consider a civil penalty to deter noncompliance for economic bene"t. In cases where there is any indication that the violation was committed for economic gain, the RMCP may exercise discretion and impose a civil penalty.
4.3.3 Orders
An Order is a written RMCP directive to modify, suspend, or revoke a license; to cease and desist from a given practice or activity; or to take such other action as may be proper. Orders may be made immediately effective, without prior opportunity for a hearing, whenever the RMCP determines that the public health, safety, interest, or security so requires, or if the violation or conduct causing the violation is willful.
4.4 Participation in the Enforcement Process Before making a "nal enforcement decision in cases where the RMCP is considering taking escalated enforcement action, the RMCP will typically offer the organization or individual subject to the enforcement action a conference with the RMCP to present facts relevant to the assessment and disposition of the apparent violation. The RMCP may also request a conference if additional information is needed to make a determination relevant to the assessment and disposition of the apparent violations.
4.4.1 Pre-decisional Enforcement Conference: A pre-decisional enforcement conference (PEC) is a conference held with a licensee for violations assessed during the inspection
Page l 15 process. The purpose of the PEC is to obtain information from the licensee to assist the RMCP in determining whether an enforcement action is necessary and, if so, the appropriate enforcement action. The PEC focuses on areas such as (1) a common understanding of the facts, root causes, and missed opportunities associated with the apparent violation and (2) a common understanding of the corrective actions taken or planned. If held, a PEC is normally the "nal step in the RMCPs fact-"nding process before making an enforcement decision.
When the RMCP determines that there is a violation for which escalated enforcement action appears warranted, the Department normally offers the licensee the opportunity to attend a PEC or provide a written response to the apparent violation, or both, before the RMCP makes an enforcement decision. If the RMCP concludes that it has sufficient information to make an informed enforcement decision involving a licensee, the RMCP will notify the licensee that the PEC does not appear to be necessary, and unless the licensee speci"cally requests a PEC, one will not be held. The RMCP may speci"cally request a PEC if it needs additional information before making a "nal enforcement decision. If the RMCP does not request a PEC or if the licensee does not accept the RMCPs offer to attend a PEC, the licensee may choose to respond in writing to a documented apparent violation before the RMCP takes enforcement action. To the extent practicable, the RMCP will consider the licensees response before taking enforcement action.
4.4.2 Alternative Dispute Resolution: The RMCP will attempt to come to an agreement with the licensee on corrective actions and appropriate enforcement at the PEC. During negotiations, the lead inspector, the IDHS Radiation Programs Director, a representative from IDHS General Counsel, representation from IDHS "scal, and representation from the licensee should all be present. If additional information is needed, or an agreement cannot be reached within the allotted time, the RMCP will schedule a secondary meeting to continue negotiations within 30 days of the PEC.
If an agreement cannot be reached during the PEC, or secondary meeting, the RMCP and the licensee, or individual to which the violation is posed, will proceed to Alternative Dispute Resolution. Licensees can also choose to bypass the PEC and move directly to Alternative Dispute Resolution.
Alternative Dispute Resolution (ADR) can be used for escalated non-willful enforcement cases with the potential for a civil penalty. There may be circumstances where it may be inappropriate for the State of Indiana to engage in enforcement ADR and therefore retain the option to decline ADR. Some examples include but are not limited to: (1) if the violation is deemed willful in nature, (2) if the case is a particularly egregious case in which the public interest and/or public safety is not served by engaging in ADR, (3) if the violation is categorized as a category 1 violation, or (4) if the subject matter of the case is such that details of a settlement could not be made public.
Mediation is the State of Indianas preferred form of ADR within the Radioactive Material Control program. Mediation is an informal process in which a trained neutral mediator works with the parties to help them reach an agreement. Terms of the ADR settlement agreement will be outlined in an Agreed Order.
Page l 16 Dispute of violations should be sent to the Indiana Radioactive Materials Control Program via email at RMCP@dhs.in.gov. Within 15 business days of receipt of dispute noti"cation and a request for ADR, the RCPEC will meet to compile required documentation to be sent to the Attorney General. Within 30 business days of the receipt of dispute noti"cation, the matter will be submitted to the Attorney General. For the purposes of this policy, business days are de"ned as Monday through Friday, excluding any state recognized holidays.
5.0 Enforcement Actions Involving Individuals Any individual may be subject to RMCP enforcement action if the individual (1) deliberately causes or would have caused, if not detected, a licensee to be in violation of any regulation or Order, or any term, condition, or limitation of any license issued by the State of Indiana related to RMCP-licensed activities or (2) deliberately submits materially inaccurate or incomplete information to the RMCP, a licensee, an applicant or a licensee, or a contractor or subcontractor of a licensee or applicant for a license.
The Department will normally take enforcement actions against non-licensed individuals only in cases involving deliberate misconduct by the non-licensed individual, and in cases in which an individual violates any requirement directly imposed on him or her.
The RMCP considers enforcement actions against individuals to be signi"cant actions that will be closely evaluated and judiciously applied. Typically, the RMCP will take an enforcement action involving an individual, either licensed or non-licensed, only when the violation has actual or potential safety or security signi"cance. Generally, before taking enforcement action against an individual, the RMCP will seek to gather information to determine whether an Order or other enforcement action should be issued. The Department may gather such information by conducting a PEC, or by requesting a written response from the individual. If the violation was deliberate, the individual may also be provided the opportunity to address the apparent violations during the Alternative Dispute Resolution process. The exact nature of the opportunity to address the apparent violation will depend on the circumstances of the case, including the signi"cance of the issue, the enforcement sanction that the RMCP is contemplating, and whether the individual has already had an opportunity to respond to the apparent violation.
Since it is RMCP policy to hold licensees responsible for the acts of their employees and contractors, in most cases, the RMCP will cite the licensee for violations committed by their employees and contractors. Violations with a signi"cance that would typically warrant escalated enforcement action against the licensee may warrant an enforcement action against the individual. Typically, the RMCP will not take enforcement action against the employee or contractor if failures of licensee management are responsible for the individuals improper actions. In deciding whether to issue enforcement actions both to a licensee and a non-licensed individual, the RMCP will make decisions on a case-by-case basis.
5.1 Considerations in Determining Enforcement Actions Involving Individuals The RMCP recognizes that decisions regarding enforcement actions against individuals will have to be made on a case-by-case basis. The RMCP may propose an enforcement action or refrain from taking an enforcement action after considering all the relevant circumstances of each case.
Page l 17 The primary factors considered by the RMCP in considering whether to take action or what action to take are (1) the signi"cance of the underlying violation or technical issue and (2) the individuals position within the organization.
Other factors include, but are not limited to, whether the violation was the result of deliberate misconduct, the bene"t to the wrongdoer, the degree of management responsibility or culpability, and the attitude of the wrongdoer.