In the Matter of MC Squared, Inc., Tampa, FL; Order Imposing Civil Monetary Penalty, 69714-69716 [E7-23904]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 236 (Monday, December 10, 2007)]
[Notices]
[Pages 69714-69716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23904]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-37435; License No. 09-31230-01; EA-07-101, 07-104]


In the Matter of MC Squared, Inc., Tampa, FL; Order Imposing 
Civil Monetary Penalty

I

    MC Squared, Inc. (licensee) is the holder of a materials license 
issued by the State of Florida, an NRC Agreement State. Most of the 
licensee's work is conducted under the State's jurisdiction. MC 
Squared, Inc. also obtained license No. 09-31230-01 (license) issued by 
the Nuclear Regulatory Commission (NRC or Commission) on April 5, 2007. 
This license expires on April 30, 2017. The license authorizes the 
licensee to possess and use certain byproduct materials in accordance 
with the conditions specified therein.

II

    Although MC Squared, Inc. possessed an Agreement State license from 
the State of Florida, the NRC inspected and processed enforcement 
against the licensee because their temporary job site, which was 
located at the Seminole Tribe Indian Reservation, is under NRC 
jurisdiction. The inspection of the licensee's activities at the 
temporary job site in Clewiston, Florida, was completed on March 29, 
2007.
    The results of this inspection concluded that the licensee had not 
conducted its activities in full compliance with NRC requirements. A 
written Notice of Violation and Proposed Imposition of Civil Penalty 
(Notice) was served upon the licensee by letter dated September 13, 
2007. The Notice states the nature of the violations, the provision of 
the NRC's requirements that the licensee violated, and the amount of 
the civil penalty proposed for the violations. The licensee responded 
to the Notice in a letter dated October 11, 2007. In its response, the 
licensee requested that the NRC negate or significantly reduce the 
civil penalty.

III

    After consideration of the licensee's response and argument for 
mitigation contained therein, the NRC has determined, the violations 
occurred as stated in the Notice, that the licensee did not provide an 
adequate basis for negating or significantly reducing the civil 
penalty, and that the penalty proposed for the violations designated in 
the Notice should be imposed.

IV

    In view of the foregoing and pursuant to the Atomic Energy Act of 
1954, as amended, Sec.  234, 42 U.S.C. 2282 (1988) (``Act''), and 10 
CFR 2.205, it is hereby ordered that:
    MC Squared, Inc. pay a civil penalty in the amount of $3,250 
within 30 days of the date of this Order, in accordance with NUREG/
BR-0254. In addition, at the time payment is made MC Squared, Inc. 
shall submit a statement indicating when and by what method payment 
was made, to the Director, Office of Enforcement, U.S. Nuclear 
Regulatory Commission, One White Flint North, 11555 Rockville Pike, 
Rockville, MD 20852-2738.

V

    In accordance with 10 CFR 2.202, MC Squared, Inc. must, and any 
other person adversely affected by this Order may, submit an answer to 
this Order within 20 days of the date of this Order. In addition, the 
licensee and any other person adversely affected by this Order may 
request a hearing on this Order within 20 days of the date of this 
Order. Where good cause is shown, consideration will be given to 
extending the time to answer or request a hearing. A request for 
extension of time must be made in writing to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, and include a 
statement of good cause for the extension.
    The answer shall, under oath or affirmation, specifically admit or 
deny each allegation or charge made in this Order and shall set forth 
the matters of fact and law on which the licensee or other person 
relies, and, if the order is not consented to, the reasons as to why 
the order should not have been issued. The answer may also demand a 
hearing.
    A request for a hearing must be filed in accordance with the NRC E-
Filing rule, which became effective on October 15, 2007. The NRC E-
Filing Final Rule was issued on August 28, 2007 (72 Fed. Reg. 49,139), 
and codified in pertinent part at 10 CFR Part 2, Subpart B. The E-
Filing process requires participants to submit and serve documents over 
the internet or, in some cases, to mail copies on electronic optical 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    If a person other than the licensee requests a hearing, that person 
shall set forth with particularity the manner in which his interest is 
adversely affected by this Order and shall address the criteria set 
forth in 10 CFR 2.309(d).
    If a hearing is requested by a licensee or a person whose interest 
is adversely affected, the Commission will issue an Order designating 
the time and place of any hearings. If a hearing is held, the issue to 
be considered at such hearing shall be whether this Order should be 
sustained. In the absence of any request for hearing, or written 
approval of an extension of time in which to request a hearing, the 
provisions Specified in Section IV above shall be final 20 days from 
the date of this Order without further order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section IV shall

[[Page 69715]]

be final when the extension expires if a hearing request has not been 
received. If payment has not been made by that time, the matter may be 
referred to the Attorney General, for collection. In the event the 
licensee requests a hearing as provided above, the issues to be 
considered at such hearing shall be:
    (a) Whether the licensee was in violation of the Commission's 
requirements as set forth in violations of the Notice referenced in 
Section II above, and
    (b) whether, on the basis of such violations and the additional 
violations set forth in the Notice of Violation that the licensee 
admitted, this Order should be sustained.
    To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
HEARINGDOCKET@NRC.GOV or by calling (301) 415-1677, to request (1) a 
digital ID certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms Viewer\TM\ to access the Electronic 
Information Exchange (EIE), a component of the E-Filing system. The 
Workplace Forms Viewer\TM\ is free and is available at https://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information 
about applying for a digital ID certificate also is available on NRC's 
public Web site at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance available on the 
NRC public Web site at https://www.nrc.gov/site-help/e-submittals.html. 
A filing is considered complete at the time the filer submits its 
document through EIE. To be timely, electronic filings must be 
submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
notice that provides access to the document to the NRC Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at https://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
https://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested not to include personal 
privacy information, such as social security numbers, home addresses, 
or home phone numbers in their filings. With respect to copyrighted 
works, except for limited excerpts that serve the purpose of the 
adjudicatory filings and would constitute a Fair Use application, 
participants are requested not to include copyrighted materials in 
their works.

    For the Nuclear Regulatory Commission.
    Dated this 30th day of November, 2007.
Cynthia A. Carpenter,
Director, Office of Enforcement.

Appendix--Evaluations and Conclusion

    On September 13, 2007, a Notice of Violation and Proposed 
Imposition of Civil Penalty (Notice) was issued to MC Squared 
(MC\2\), Inc. (Licensee) for two violations identified during the 
NRC review of the circumstances associated with the theft of a 
portable nuclear density gauge containing licensed material 
(ML072560013). The theft occurred sometime between March 2 and March 
7, 2007. The licensee responded to the Notice in a letter dated 
October 11, 2007 (ML073030076). The licensee requested that the NRC 
negate or significantly reduce the proposed civil penalty. The NRC's 
evaluation and conclusion regarding the licensee's requests are 
contained herein.

Restatement of the Violations

    A. 10 CFR 150.20(b) requires, in part, that an Agreement State 
licensee shall, at least three days prior to engaging in each 
licensed activity within NRC jurisdiction for the first time in a 
calendar year, file a submittal with the NRC containing an NRC Form 
241, a copy of its Agreement State specific license, and the 
appropriate fee as prescribed in 10 CFR 170.31.
    Contrary to the above, the licensee failed to file NRC Form 241 
at least three days prior to engaging in licensed activities within 
NRC jurisdiction. Specifically, from January 1, 2006, through at 
least March 12, 2007, the licensee stored or used a Troxler Model 
3411-B portable gauge containing byproduct material (americium-241 
and cesium-137) at two Indian Reservations located in the State of 
Florida, sites that are within NRC jurisdiction, and did not file 
NRC Form 241 prior to using the material at these sites.
    B. 10 CFR 30.34(i) requires that each portable gauge licensee 
use a minimum of two independent physical controls that form 
tangible barriers to secure portable gauges from unauthorized 
removal, whenever portable gauges are not under the control and 
constant surveillance of the licensee.
    Contrary to the above, between March 2, 2007 and March 7, 2007, 
at a job site on a Seminole Indian Reservation, in Clewiston, 
Florida, the licensee did not use a minimum of two independent 
physical controls that form tangible barriers to secure a Troxler 
moisture/density gauge from unauthorized removal when the portable 
gauge was not under the control and constant surveillance of the 
licensee. Specifically, the licensee stored the gauge in a trailer 
that was unlocked and in an unrestricted area when an authorized 
user was not present. Although the gauge was in a locked container, 
there were no physical controls that formed tangible barriers to 
secure the gauge from unauthorized removal, because the gauge 
container was not secured to the trailer, and access to the trailer 
was not controlled. The licensee notified the NRC on March 7, 2007, 
that the portable gauge had been stolen.

[[Page 69716]]

    These two violations represent a Severity Level III problem 
(Supplement VI). Civil Penalty--$3,250

Summary of the Licencee's Response Regarding the Violations

    In its response, the licensee stated that it believed its 
license in the State of Florida allowed it to use and store the 
nuclear density gauge anywhere within Florida. The licensee stated 
that it did not know that the Indian Reservations of the Seminole 
Tribe of Florida are not under the State of Florida's jurisdiction 
and that it was required to file for reciprocity or obtain a 
separate license under NRC jurisdiction for storing and using a 
portable gauge on an Indian Reservation. The licensee also stated it 
immediately took corrective actions to file for a Federal license 
and paid the required fees. Further, the licensee stated that the 
management team understands the seriousness of the violations and 
described the corrective actions immediately taken to ensure two 
independent physical controls exist for securing the portable gauge 
from unauthorized removal. The actions included having the RSO or a 
member of the management team perform random checks to ensure the 
method of protection is strictly adhered to.

NRC'S Evaluation of the Licensee's Response Regarding the 
Violations

    The NRC has evaluated the licensee's statements regarding the 
violations. The NRC recognizes that these are the licensee's first 
violations of this type and that corrective actions were taken 
immediately to address the violations; however, not being aware that 
the Indian Reservations of the Seminole Tribe of Florida are under 
NRC jurisdiction is not a valid reason for not having filed for 
reciprocity nor obtaining an NRC license. NRC may not cite the 
licensee when a portable gauge is stolen under the condition that 
the licensee was in full compliance with all regulatory requirements 
regarding physical security, including the requirement to secure the 
gauge with two independent physical controls that form tangible 
barriers to secure the gauge from unauthorized removal. However, 
MC\2\ was not in full compliance with all regulatory requirements 
and therefore, an adequate basis did not exist to not cite the 
violations.

Summary of Licensee's Request for Negation or Significant Reduction 
of the Civil Penalty

    In its response, the licensee requested negating or 
significantly reducing the civil penalty, contending that specific 
mitigating circumstances surrounding the violations should be 
considered by the NRC, and that the fine will impose a significant 
financial hardship on their small company. The mitigating 
circumstances provided by the licensee included: (1) This is its 
first violation; (2) it did not know the Indian Reservations are 
separate entities; and, (3) immediate measures were taken to rectify 
the situation and prevent future violations. The licensee noted that 
the senior management team and the employees of MC\2\ are committed 
to health and safety and place significant importance on supporting 
their Radiation Safety Officer and providing the tools necessary to 
achieve safe operation of nuclear devices.

NRC Evaluation of Licensee's Request for Negation or Signficant 
Reduction of the Civil Penalty

    In accordance with section VI.C.2 of the Enforcement Policy, the 
base civil penalty amount for a Severity Level (SL) III violation 
involving the loss of this type of radioactive material is $3,250. 
The licensee, while contending that a financial loss occurred, did 
not provide any evidence that payment of the civil penalty would 
create a financial hardship. Also, while the NRC acknowledges that 
the licensee took prompt and comprehensive corrective actions, a 
civil penalty was nonetheless warranted, consistent with the NRC 
Enforcement Policy, because the violation of 10 CFR 30.34(i) 
contributed to the theft of a gauge containing radioactive material. 
Issuance of this civil penalty is consistent with one of the 
purposes of the Enforcement Policy, which is to deter noncompliance, 
including for lost sources, by emphasizing to the licensee and other 
licensees the importance of compliance with NRC safety and security 
requirements. In addition, the NRC recognized that a contributing 
factor for these two violations was that MC\2\ did not fully 
understand the NRC regulations regarding 10 CFR 150.20(b) and 10 CFR 
30.34(i). The NRC took this into consideration and processed the two 
violations as one SL III problem, rather than citing two separate SL 
III violations, which could have each been individually considered 
for a civil penalty.

NRC Conclusion

    The NRC has concluded that these violations occurred as stated 
in the Notice and that an adequate basis was not provided by the 
licensee for the NRC to negate or significantly reduce the civil 
penalty. Consequently, the proposed civil penalty in the amount of 
$3,250 should be imposed.

[FR Doc. E7-23904 Filed 12-7-07; 8:45 am]
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