IR 015000009/1996015

Discusses Insp Rept 15000009/96-15 on 961105 & Violation Re Failure to Obtain General or Specific NRC License as Required by 10CFR30.3.No NRC Enforcement Action Will Be Taken

ML20149M598
Person / Time
Site:	15000009, 015000009
Issue date:	12/10/1996
From:	Ebneter S NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
To:	Pettis A AFFILIATION NOT ASSIGNED
References
EA-96-473, NUDOCS 9612170455
Download: ML20149M598 (3)

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December 10. 1996  !

EA 96-473 Tri-State Testing l ATTN: Mr. Art Pettis r President l P. O. Box 477 i Cottondale. Florida 32431-0477 l SUBJECT: EXERCISE OF ENFORCEMENT DISCRETION (NRC INSPECTION REPORT NO. 150-00009/96-15)  !

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Dear Mr. Pettis:

l This refers to the s)ecial, unannounced inspection conducted by this office-on  :

November 5. 1996. T1e results of this inspection were provided to you in our  !

letter dated November 26. 1996. At that time you were informed that the  ;

inspection had identified one apparent violation, the failure to obtain a l general or specific NRC license, as required by 10 CFR 30.3. prior to using i portable nuclear gauges containing byproduct material. Specifically, on numerous occasions during the period 1991 through the date of the onsite ,

inspection, you used portable nuclear gauges at Eglin Air Force Base (EAFB), -

Florida, in areas where the NRC maintains jurisdiction for regulating the use  ;

of byproduct material without an NRC license. You were informed at that time l that the apparent violation was under consideration for enforcement.  ;

Although the requirements of 10 CFR 30.3 apply to work performed in areas of l exclusive Federal jurisdiction in Agreement States, we note that as an  !

alternative to obtaining an NRC license as permitted by NRC practice. Tri- l l

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State Testing could have filed an NRC Form-241. paid the associated fees, and  !

conducted these activities as described in 10 CFR 150.20.  !

i The inspection established that, at the time you performed the work in l question, you did not appear to be aware of the need to either obtain a  :

s)ecific license under 10 CFR 30.3 or in lieu thereof, to file a Form-241 with  !

tie NRC. The inspection also determined that you assumed that because you  ;

hold a State of Florida license, you could conduct moisture density activities '

L anywhere in the State of Florida including on military installations or in areas of exclusive Federal jurisdiction within the State. You did state.  ;

however, that you had recently received information from the State of Florida  ;

regarding the requirements for filing for reciprocity with the NRC. and since .

that time. Tri-State Testing has not performed activities at any military  !

installations. '

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Normally, the failure to obtain an NRC license or the failure to file an l l NRC Form-241 to notify the NRC of activities being conducted within its i j jurisdiction would be considered for escalated enforcement action which could I i '

include the. issuance of a civil penalty in accordance with the " General i Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement t

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Policy). NUREG-1600. However, after consultation with the Director. Office of -

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Enforcement,theNRCisexercisingenforcementdiscretionandisnottgking  ;

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any enforcement action in this matter, in accordance with Section VII.B.6 of i the Enforcement Policy. The NRC is exercising enforcement discretion ba:ed on i the circumstances described above and in the subject inspection re) ort.

including our conclusions that you did not intentionally fail to o)tain the proper license and that Tri-State Testing did not understand the regulatory recuirements pertaining to the use of licensed materials in areas of exclusive Feceral jurisdiction within an Agreement State until the recent notification ,

from the State of Florida. In reaching this decision, the NRC also considered the efforts taken by Tri-State Testing personnel to become familiar with applicable NRC requirements, your honesty in admitting that such work was ;

performed, and the fact that Tri-State Testing was not made aware by EAFB -

contracting personnel of the existence of areas of exclusive Federal jurisdiction on the base.

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 may result in significant enforcement action. We would expect that, in the future. Tri-State Testing would obtain written assessments from. or document assessments by. Federal authorities as to whether a pro)osed work site is in an area of exclusive Federal jurisdiction. A3sent such 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 you may choose to provide will be placed in the NRC Public Document Room. l Should you have any questions regarding this inspection, please contact Mr. Charles Hosey at (404) 331-5614.

Sincerely

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Original Signed by Stewart D. Ebneter

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Stewart D. Ebneter Regional Administrator Docket No.- 150-00009 Florida License No. 1988-1  ;

cc: State of Florida l

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