United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-037 - Earthline Technologies (Previously RMI Environmental Services)

September 24, 2001

EA-99-290
EA-01-037

Mr. James W. Henderson
Division Manager
Earthline Technologies
(Previously RMI Environmental Services)
P.O. Box 579)
Ashtabula, OH 44005-0579

SUBJECT:   NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $17,600 (OFFICE OF INVESTIGATIONS REPORTS NO. 3-1999-008 AND 3-2000-002)

Dear Mr. Henderson:

On July 31, 1998, NRC-licensed material, in the form of uranium contamination, was discovered inside concrete pipes stored in an area that was not restricted for radiation purposes (Area E) at the facility operated by the former RMI Environmental Services, now Earthline Technologies (RMI/Earthline), Ashtabula, Ohio. Previous radiation surveys of the piping indicated that radiation levels were below the limits specified in the NRC materials license issued to RMI/Earthline and in RMI/Earthline radiation protection procedures. As a result of the earlier surveys, the piping was released from Area D, a restricted area, to Area E. No actions were taken on July 31, 1998, to control or otherwise restrict access to the piping after the pipes were found to be contaminated with uranium and located in an area that did not have access restricted for radiation purposes. The piping had already been sold to a member of the public and the purchaser removed the pipes from the RMI/Earthline property on August 1-2, 1998. The purchaser was not aware that the piping was contaminated with uranium because the piping had not been marked or controlled in a manner to identify its uranium content. All of the sections of pipe were recovered by RMI/Earthline during the period August 3-7, 1998.

The U.S. Nuclear Regulatory Commission (NRC) conducted a decommissioning inspection(1) at the RMI/Earthline facility on March 10, 1999. As a result of that inspection, two non-cited violations (NCVs) were issued in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, Revision 1, May 13, 1998 (Enforcement Policy). One NCV concerned the failure to conduct a proper survey to identify the licensed quantities of uranium while the piping was still within the radiation restricted area. The second NCV pertained to the failure to secure NRC-licensed material from unauthorized removal from the RMI/Earthline facility.

Subsequent to the inspection, the NRC received information that an RMI/Earthline supervisor may have deliberately failed to properly control the NRC-licensed material on July 31, 1998. The NRC also received information that other RMI/Earthline managers may have caused RMI/Earthline to be in violation of the NRC regulation that prohibits discriminating against employees for raising safety concerns, 10 CFR 40.7, "Employee Protection." As a result of this information, the NRC Office of Investigations (OI) initiated separate investigations into these issues. Information obtained during the OI investigations indicated that a radiation protection supervisor deliberately failed to take the necessary measures to control NRC-licensed material, uranium, from unauthorized removal from the RMI/Earthline facility, and other RMI/Earthline managers engaged in employment discrimination after a radiation protection technician participated in protected activities.

The summaries of the OI investigation reports were sent to RMI/Earthline on February 27, 2001, and a predecisional enforcement conference was held on April 12, 2001, in the NRC Region III Office, Lisle, Illinois. The complainant in the employment discrimination matter participated in that portion of the predecisional enforcement conference. The conference discussion on April 12, 2001, could not be completed within the allotted time and was continued to June 27, 2001, when the conference was completed. Additional information about the apparent violation of 10 CFR 40.7 was submitted by RMI/Earthline in a letter dated June 29, 2001.

Based on the information developed during the OI investigations, during the conferences, and contained in the June 29, 2001, letter, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice). On July 31, 1998, a radiation protection technician identified that segments of concrete pipes, located in Area E of the RMI/Earthline facility, were contaminated and the technician brought this information to the attention of his supervisor. Laboratory analysis at the RMI/Earthline facility on July 31, 1998, showed that the pipes contained uranium in excess of regulatory release limits and the information from the laboratory analysis was also brought to the attention of the supervisor. Also, the supervisor knew the piping was stored in an unrestricted area and was not secured against unauthorized removal.

On July 31, 1998, the radiation protection supervisor consulted with two RMI/Earthline radiation protection managers about the piping contaminated with uranium. While the managers provided no direction to control access to the contaminated piping, the supervisor had the authority to secure the uranium from unauthorized removal and failed to act. The failure of the radiation protection supervisor to properly secure NRC-licensed material permitted the unauthorized removal of that material from the RMI/Earthline facility during the weekend of August 1-2, 1998. The actions of this supervisor placed RMI/Earthline in violation of the NRC regulations pertaining to the control of NRC-licensed material. Knowing that the piping contained uranium and was in an unrestricted area, and failing to initiate action to properly secure the licensed material, placed the supervisor in violation of the NRC rule on deliberate misconduct, 10 CFR 40.10. Due to the deliberate nature of the violation, the NCV issued to RMI/Earthline on March 26, 1999, has been withdrawn and recategorized as a Severity Level III violation in accordance with the Enforcement Policy (EA-01-037).

A base civil penalty in the amount of $5,500 is considered for a Severity Level III violation in accordance with the Enforcement Policy in effect at the time of the violation (Revision 1, May 13, 1998). Because the violation for the failure to control NRC-licensed material from unauthorized removal was deliberate in nature, the NRC considered whether credit is warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy, Revision 1. Credit for Identification is warranted because RMI/Earthline identified the violation and notified the NRC along with other government agencies. Credit for Corrective Action is also warranted because radiation safety procedures were expanded to include preplanning activities for releasing materials from the restricted areas of the facility. After consultation with the Director, NRC Office of Enforcement and to emphasize the importance of immediate identification and reporting of violations and prompt corrective action, a civil penalty is not proposed for the violation associated with the failure to control NRC-licensed material (EA-01-037).

The radiation technician engaged in protected activities on July 31, 1998, when he identified the contaminated pipes to his supervisor. The technician engaged in other protected activities through February 4, 1999, by notifying RMI/Earthline supervisors and managers about other radiological safety concerns, including, but not limited to: objects leaving the radiologically controlled area without being surveyed and concerns with the procedure for the free release of items from the radiological controlled area. On February 12, 1999, the radiation protection technician was involuntarily placed on medical leave and was referred to an employee assistance program by an RMI/Earthline manager. Also, on February 12, 1999, a memorandum was written, by another RMI/Earthline manager, instructing RMI/Earthline employees that they were not to have any communication, written, oral, electronic, or by any other means, with the radiation protection technician about RMI/Earthline business matters. The employment actions on February 12, 1999, were taken, at least in part, as a result of the technician's protected activities for providing information to RMI/Earthline supervisors and managers about radiation safety, and are considered adverse employment actions related to the compensation, terms, conditions and privileges of the technician's employment in violation of 10 CFR 40.7, "Employee Protection." Furthermore, the memorandum to employees restricted communication of safety information from the technician's coworkers, through the technician, to regulatory agencies, including the NRC. The memorandum is considered a restriction on the technician's right to engage in protected activities, also in violation of 10 CFR 40.7. Since personnel at the level of plant management were involved in these actions, the violation is categorized in accordance with the Enforcement Policy at Severity Level II (EA-99-290).

A base civil penalty in the amount of $8,800 is considered for a Severity Level II violation in accordance with the Enforcement Policy in effect at the time of the violation (Revision 1, May 13, 1998). In accordance with the civil penalty assessment process, both the Identification and Corrective Action factors are considered for a violation of 10 CFR 40.7. Credit for Identification was not warranted because the violation was identified as a result of an allegation made to the NRC. Credit was not given for Corrective Action because RMI/Earthline did not provide any corrective action for the NRC to consider. Therefore, to emphasize the importance of prompt identification and correction of violations, and a safety conscious work environment that is free of any chilling effect so that employees can bring forward nuclear and radiological safety concerns without fear of an adverse employment action, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty of $17,600, which is twice the base amount for the Severity Level II violation (EA-99-290).

The performance of the RMI/Earthline management team at all levels is of concern to the NRC. The three management individuals involved in decision making on July 31, 1998, were radiation protection professional employees, yet their actions indicated a lack of understanding or appreciation for the issue presented to them. Either by direct survey reading or laboratory analysis, each manager was aware of the elevated readings from the material within the pipes, yet none took any positive action to secure the pipes and the uranium from unauthorized removal. Each knew that the piping was located in an unrestricted area. One manager knew that attempts were being made to sell the piping and another manager knew that it had been sold, but neither manager consulted the other. As a result of their combined failures, NRC-licensed material was removed from the RMI/Earthline site in an unauthorized manner and entered the public domain. Following this incident, the radiation protection technician, who identified the uranium inside the pipes, was subject to adverse employment action by two other managers. Taking an adverse employment action against an employee because he raised safety issues indicated a lack of management concern for a safety conscious work environment at the RMI/Earthline facility in which workers feel free to express nuclear safety concerns. A safety conscious work environment is necessary to ensure that employees feel free to promptly identify issues which may have a negative impact on public health and safety. Protecting NRC-licensed material from improper release and ensuring that an employee is not disciplined for identifying radiation safety concerns are fundamental responsibilities of licensee managers expected by the NRC. In this instance, RMI/Earthline managers failed to fulfill these fundamental expectations. As described above, the NRC concluded the radiation protection supervisor engaged in deliberate misconduct. Despite the other managers' failure to fulfill fundamental expectations, the NRC concluded that they did not engage in deliberate misconduct, and therefore no enforcement action will be taken against the individuals.

A written response to this letter is requested. Instructions for the response and payment of the civil penalty are outlined in the enclosures. In responding, please forward a copy of the response to the State of Ohio, Bureau of Radiation Protection, the current regulatory agency for Earthline Technology, the successor to RMI. The response may be limited to the employment discrimination violation (EA-99-290) and does not need to include a reply to the violation concerning the security of NRC-licensed material, as the NRC has concluded that the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, are already adequately addressed on the docket in Inspection Report No. 040-02391/99001.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and the response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library).

Sincerely,

/RA/

J. E. Dyer
Regional Administrator

Docket No. 040-02384
License No. SMB-00602

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalties

cc w/encl:
Timothy G. Rupert, President & CEO, RTI International Metals, Inc.
Anthony J. DiVenere, Esq., McDonald, Hopkins, Burke & Haber
Roger Suppes, State of Ohio, Bureau of Radiation Protection
Ruth Vandegrift, State of Ohio, Bureau of Radiation Protection


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

RMI Environmental Services
Now: Earthline Technologies Ashtabula, OH
Docket No. 040-02384
License No. SMB-00602
EA-99-290; EA-01-037

During NRC investigations completed on September 29, 1999, and December 15, 2000, respectively, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violations and associated civil penalty are set forth below:

A.   Violation Assessed a Civil Penalty (EA-99-290)

10 CFR 40.7 prohibits discrimination by a Commission licensee against an employee for engaging in certain protected activities. Discrimination includes discharge and other actions that relate to compensation, terms, conditions or privileges of employment. The protected activities were established in Section 211 of the Energy Reorganization Act of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act or the Energy Reorganization Act. Protected activities include providing a Commission licensee or contractor with information about nuclear safety at an NRC licensed facility.

Contrary to the above, the licensee discriminated against a radiation protection technician for engaging in protected activities. During the period July 31, 1998, to February 4, 1999, a radiation protection technician expressed a number of radiation safety concerns to licensee supervisors and managers. His concerns included, but were not limited to identifying: that previously released piping was contaminated with uranium; that objects left the radiologically controlled area without being surveyed; and concerns with the procedure for the release of items from the radiologically controlled area. Based, at least in part, on these protected activities, the licensee placed the radiation protection technician on involuntary medical leave and referred him to an employee assistance program. Also, on February 12, 1999, a licensee manager wrote a memorandum instructing RMI employees that they were not to have any communication, written, oral, electronic, or by any other means, with the radiation protection technician about RMI business matters. The memorandum to employees restricted communication of safety information from the technician's coworkers, through the technician, to regulatory agencies, including the NRC. These actions on February 12, 1999, were taken, at least in part, as a result of the technician providing information regarding radiation safety to RMI supervisors and managers.

This is a Severity Level II violation (Supplement VII).
Civil Penalty - $17,600.

B.   Violation Not Assessed a Civil Penalty (EA-01-037)

10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, outside of a restricted area but inside the site boundary, access to which can be limited by the licensee for any reason; and unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on July 31, 1998, the licensee deliberately did not secure from unauthorized removal or limit access to licensed material, uranium, inside concrete pipes, located in Area E, which is an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material.

This is a Severity Level III violation (Supplement IV)

RMI Environmental Services/Earthline Technologies (RMI/Earthline) is requested to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a copy to the State of Ohio, Bureau of Radiation Protection, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for alleged Violation A: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. The response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation. The response may be limited to a reply to Violation A (EA-99-290) as the NRC has concluded that the reason for Violation B (EA-01-037), the corrective actions taken and planned to correct the violation and prevent recurrence are already adequately addressed on the docket in Inspection Report No. 040-02391/99001.

It should be noted that a response to the Notice of Violation pursuant to 10 CFR 2.201 is not specifically required because regulatory authority for Earthline Technologies was transferred to the State of Ohio. While a response to the Notice of Violation is not required, either payment or an answer protesting the civil penalty is required.

Within the same time as provided for the response requested above, RMI/Earthline may pay the civil penalty proposed above in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should RMI/Earthline fail to answer within the time specified, an order imposing the civil penalty will be issued. Should RMI/Earthline elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation(s) listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty, in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy (May 13, 1998) should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the requested written response or explanation, but may incorporate parts of that reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of RMI/Earthline is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234(c) of the Act, 42 U.S.C. 2282c.

The requested response, statement as to payment of civil penalty, and Answer to a Notice of Violation should be addressed to: Mr. Frank J. Congel, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region III, and the State of Ohio, Bureau of Radiation Protection.

Because the response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library). If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of the response that identifies the information that should be protected and a redacted copy of the response that deletes such information. If the withholding of such material is requested, the request must specifically identify the portions of the response that RMI/Earthline seeks to have withheld and provide in detail the bases for the claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information).

Dated this 24th day of September 2001.


1. See NRC Inspection Report No. 040-02394/99001(DNMS), dated March 26, 1999.

 

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