Selection of Appropriate Enforcement Action for Gamma Diagnostic Laboratories, Inc.

HPPOS-154 PDR-9111220124

See the memorandum from D. H. Thompson to B. H. Grier dated March 4, 1981, and the incoming request from B. H. Grier dated January 16, 1981.

Under 10 CFR 71, a private carrier is subject to 10 CFR Part 20. An unattended vehicle with the motor running in which licensed material in transport is stored in locked containers, is not a reasonable effort to secure material and does not meet the intent of 10 CFR Section 20.207. The health physics position was written in the context of 10 CFR 20.207 and 20.402, but it also applies to the "new" 10 CFR Part 20, Sections 20.1801, 20.1802, and 20.2201.

An inspection was conducted on October 6 and 7, 1980, to review the circumstances surrounding the theft and subsequent recovery on September 25, 1980, of a truck belonging to Gamma Diagnostic Laboratories, Inc. The truck was being used by the licensee to deliver licensed materials to various customers. At the time of theft, the truck was parked in front of a hospital with the engine running while the driver was inside making a delivery. The truck contained packages of licensed materials in a locked container that in turn was bolted to the truck. The theft was promptly reported and the truck was recovered a short time later. There was no evidence of any attempt to steal or tamper with the licensed materials within the locked container.

The theft of the truck highlights two questions about which guidance and policy are needed.

1. When a licensee is acting as a private carrier, such as in the situation just described, what regulations are applicable?
   The regulations in 10 CFR Part 71 and the DOT regulations, the regulations in 10 CFR Part 20, or some combination of these?

2. If it is assumed that a licensee acting as a private carrier must comply with the regulations in Part 20, does storage of licensed materials in a locked box that is physically secured to a truck constitute adequate security against unauthorized removal?
   Common and contract carriers are subject to DOT regulations but are exempt from NRC regulations. Private licensee carriers are subject to all DOT regulations and 10 CFR Part 20. However, when DOT and NRC have overlapping requirements, NRC would not ordinarily take actions against the licensee for a violation of Part 20 if the licensee was in compliance with the DOT requirement. For example, private carriers are required to make a report per 10 CFR 20.402 [or 10 CFR 20.2201] for lost or stolen radioactive materials based on judgmental factors) no matter how the material is contained (see Interpretive Guides 20.402 and 20.402 - Transportation in 10 CFR of the IE Manual). In this case, the licensee apparently did report the stolen truck to local police. They were not required to report the stolen truck to DOT (things reportable to DOT are set forth in second Interpretive Guide listed above).

The intent of 10 CFR 20.207 (a) [or 10 CFR 20.1801] is to secure material from unauthorized removal of radioactive materials from any unrestricted area. The rule intentionally does not state how the material must be secured, only that it must be secured. Under 20.207 (a) [or 10 CFR 20.1801], the source should be secured in such a way that it cannot (under reasonable circumstances) be removed, including removal of the containment in which the material is located, whether it be a small brick structure, vehicle, or any other kind of containment.

NRC believes a reasonable effort would have been to shut off the motor and remove the keys. In the case at hand, by stealing the vehicle, the material was obviously also stolen, even though the material was secured to the truck. The fact is, the truck was not reasonably secured. Clearly, if the truck theft had been successful, the secured container could have been breached.

Therefore, in NRC's view, 10 CFR 20.207 applies in this case and the licensee should be cited but civil penalties should not be assessed (see EGM-81-08). There are no similar provisions to 10 CFR 20.207 (a) and (b) [or 10 CFR 20.1801 and 10 CFR 20.1802, respectively] in DOT regulations, except for any arrier of explosives. Although in this situation the license authorized transport under 10 CFR Part 71, it must be noted that Section 71.1 (b) states: "The packaging and transport of these materials are also subject to other parts of this chapter ...." This means Chapter 1 of Title 10, or in other words, it applies to other regulations in Chapter 1 including 10 CFR Part 20.

Regulatory references: 10 CFR 20.207, 10 CFR 20.1801, 10 CFR 71.1

Subject codes: 3.4, 3.7, 4.4, 12.17

Applicability: All