US NUCLEAR REG. COM'N v. Radiation Tech., Inc., Civ. A. No. 80-2187.

Citation519 F. Supp. 1266
Decision Date06 August 1981
Docket NumberCiv. A. No. 80-2187.
PartiesUNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Plaintiffs, v. RADIATION TECHNOLOGY, INC., Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

William W. Robertson, U. S. Atty. by Louis J. Bizzarri, Asst. U. S. Atty., Newark, N. J., for plaintiffs.

G. Martin Meyers, Denville, N. J., for defendant.


MEANOR, District Judge.


On July 15, 1980, the United States Nuclear Regulatory Commission (hereinafter referred to as "NRC", "Commission" or "AEC"1), through the Attorney General, brought suit, pursuant to section 234(c) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2282(c), to collect penalties amounting to $4050 imposed upon Radiation Technology, Inc. (hereinafter referred to as "RTI"), for alleged violations of certain agency regulations and license conditions. The matter is presently before the court on both parties' motions for summary judgment. Since this case presents several issues heretofore unresolved by any federal court,2 I reserved decision after oral argument on the motions so as to render a formal opinion on these issues of national importance. These issues concern the jurisdiction of the district court to entertain this action as well as the scope of judicial review to be employed if the action is properly before a district court. For the reasons set forth below, I hold that the district court does have jurisdiction over this action. I also hold that in a section 234(c) collection action the defendant is entitled to a trial de novo. However, since both parties have moved for summary judgment, a review of the administrative record and the affidavit submitted by plaintiff, persuades me that no trial is necessary in the instant matter. I will grant the NRC's motion and enter an order directing the defendant to pay certain of the assessed penalties.


The Atomic Energy Act of 1954, as amended, (hereinafter referred to as the "Act") gave the AEC authority, inter alia, to regulate nuclear power. Included within this grant of authority was responsibility for licensing and regulating the possession and use of "byproduct material", i. e., radioactive materials used in industrial applications, medical diagnosis and treatment and applied research and development. 42 U.S.C. §§ 2014(e), 2111. To effectuate the purposes of the Act, the AEC was authorized to promulgate "standards and instructions to govern the possession and use of ... byproduct materials." 42 U.S.C. § 2201(b). The Commission exercised this authority and promulgated a variety of regulations.

The possession and use of byproduct material is authorized in most circumstances only under license from the Commission. 42 U.S.C. § 2111. Byproduct material licensees are subject to the provisions of the Act and the general rules, regulations and orders of the Commission, as well as any license-specific terms and conditions imposed on the licensee by the Commission. 42 U.S.C. § 2233; 10 C.F.R. § 30.34. The Commission attempts to monitor compliance by the licensees through a system of required tests, licensee reports, record-keeping requirements and on-site inspections by Commission representatives. 10 C.F.R. § 30.34(e)(4).

Once a transgression has occurred, the Commission is authorized to take certain actions against the licensee. Depending upon the severity of the transgression, the Commission may invoke any number of sanctions. These include: (1) the issuance of a Notice of Violation, 10 C.F.R. § 2.201; (2) the imposition of civil penalties, 10 C.F.R. § 30.63; (3) the issuance of an order modifying, suspending or revoking the license, 10 C.F.R. §§ 2.202, 2.204; and/or (4) the withholding or recalling of the byproduct material, 10 C.F.R. § 30.62. Where necessary or appropriate, the Commission may seek judicial assistance to collect a penalty, 42 U.S.C. § 2282(c), or obtain an injunction, 42 U.S.C. § 2280. Finally, where violations are willful the Commission may seek criminal sanctions of up to $5000, two years imprisonment, or both. 42 U.S.C. § 2273.

A. Imposition of Civil Penalties.

The Act provides that any person who violates an applicable statutory provision, regulatory requirement or license condition of any material byproduct license is subject to a civil penalty of up to $5000 for each violation. The Act also mandates certain procedures be utilized by the Commission for the valid exercise of this authority. Additionally, the Act empowers the Commission to institute a civil action to collect the penalty imposed. Specifically, section 234 of the Act states:

(a) Any person who (1) violates any licensing provision of section 2073, 2077, 2092, 2093, 2111, 2112, 2131, 2133, 2134, 2137, or 2139 of this title or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked under section 2236 of this title, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $5,000 for each such violation: Provided, That in no event shall the total penalty payable by any person exceed $25,000 for all violations by such person occurring within any period of thirty consecutive days. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Commission shall have the power to compromise, mitigate, or remit such penalties.
(b) Whenever the Commission has reason to believe that a person has become subject to the imposition of a civil penalty under the provisions of this section, it shall notify such person in writing (1) setting forth the date, facts, and nature of each act or omission with which the person is charged, (2) specifically identifying the particular provision or provisions of the section, rule, regulation, order, or license involved in the violation, and (3) advising of each penalty which the Commission proposes to impose and its amount. Such written notice shall be sent by registered or certified mail by the Commission to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the Commission shall by regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that upon failure to pay the civil penalty subsequently determined by the Commission, if any, the penalty may be collected by civil action.
(c) On the request of the Commission, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to him for collection.

42 U.S.C. § 2282 (amended in 1980).

The procedure actually adopted by the Commission for administrative imposition civil penalties goes beyond the requirements of the statute. The Commission provides an opportunity for a full adjudicatory consideration of all relevant facts prior to the imposition of any penalty. 10 C.F.R. § 2.205. The licensee is advised in writing of all the following elements of the alleged violation: (1) the dates, facts and nature of each alleged item of noncompliance; (2) the specific statutory provision, regulatory requirement or license condition alleged to have been violated; and (3) the amount of the proposed penalty. The licensee is also apprised of its right to respond in writing to the notice and provide any information it deems relevant. If the licensee avails itself of this opportunity, the Director of the Office of Inspection and Enforcement (Director) is to consider the response before imposing, mitigating, remitting or dismissing the penalty. If the licensee remains dissatisfied with the Director's response, it may request a hearing before the Commission or the Commission's designee. As a rule of practice, the hearing is before an administrative law judge (ALJ), 10 C.F.R. § 2.704(a), with the licensee afforded the full panoply of rights required under the Administrative Procedure Act, 5 U.S.C. § 554. 10 C.F.R. § 2.700 et seq. Appeals from the initial decision of the ALJ may be taken as of right to an Atomic Safety and Licensing Appeal Board (Appeal Board), the Commission's designee in matters involving, inter alia, civil penalties. 10 C.F.R. § 2.785(a). Finally, if the decision of the Appeal Board is erroneous with respect to an important question of fact, law or policy, the Commission will review the matter on its own motion or upon a petition of a party. 10 C.F.R. § 2.786. Upon the exhaustion of these administrative procedures and upon the expiration of ten days from the date of service of notice of final Commission action, the Commission is authorized to refer the matter to the Attorney General for collection. 42 U.S.C. § 2282(c); 10 C.F.R. § 2.205(h).

B. Procedures Employed Against RTI.

At all relevant times, RTI was the holder of Byproduct Material License No. 29-13613-02. RTI operates a facility in Rockaway, New Jersey, described as a commercial irradiator which utilizes cobalt-60, a byproduct material within the meaning of 42 U.S.C. § 2014(e).

On December 12, 1974, Commission personnel conducted an inspection of RTI's facility. As a result, a Notice of Violation was issued on January 23, 1975, alleging a failure to comply with License Condition 12 in that the licensee permitted byproduct material to be used by unauthorized persons in the facility absent the physical presence of a license-designated person. In its February 14, 1975, response to the Notice, the licensee did not contest the violation, but assured the Commission of its future compliance with License Condition 12.

On October 23, 1975, Commission personnel conducted a routine inspection of RTI's facility. A pool...

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