United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-119 - Midwest Testing, Inc.

July 20, 2001

EA-01-119

Mr. Richard Laughlin, P.E.
President
Midwest Testing, Inc.
3377 Hollenberg Drive
Bridgeton, MO 63044

SUBJECT:   NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$3000 (NRC INSPECTION REPORT NO. 03032036/2001-001 (DNMS))

Dear Mr. Laughlin:

This refers to the inspection conducted on April 17, 2001, at Midwest Testing, Inc., Bridgeton, Missouri. The inspection involved a review of the circumstances surrounding the loss of a moisture density gauge on April 6, 2001. The inspection report was transmitted to Midwest Testing on May 15, 2001, and identified an apparent violation of NRC requirements for the failure to control and maintain constant surveillance of licensed material that was in an unrestricted area.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violation identified in the report either by attending a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. In a letter dated June 13, 2001, you provided a response to the apparent violations.

Based on the information developed during the inspection and the information that you provided in your response, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation and the circumstances surrounding it are described in detail in the subject inspection report. On April 6, 2001, you notified the NRC that a portable moisture density gauge had been left unattended, unlocked, and unsecured on the tailgate of a truck for approximately 15 minutes. Further, you advised us that the gauge operator left the temporary job site, an unrestricted area, without properly securing the gauge. Shortly after leaving the temporary job site, the gauge operator noticed that the gauge was not in the back of the truck.

The failure to control and maintain constant surveillance of the portable moisture density gauge resulted in the loss of licensed material, which has not been recovered to date. The failure to adequately secure and limit access to licensed material is a significant safety issue. Implementation of adequate security measures for licensed materials is intended to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), February 16, 2001, at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty is considered for a Severity Level III violation involving the loss of a device such as the moisture density gauge lost by Midwest Testing. Because your facility has not been the subject of escalated enforcement actions within the last two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Credit was warranted for corrective actions that included: (1) reprimanding the individual involved with the violation; (2) conducting training for all authorized moisture density gauge users on the circumstances surrounding the loss and the importance of maintaining control and security of gauges at temporary job sites; (3) increasing efforts to audit gauge users; and (4) adopting a schedule of fines to reinforce the need for gauge control.

Application of the normal civil penalty assessment process would not result in a civil penalty in this case. However, the revised Enforcement Policy published December 18, 2000, (effective February 16, 2001), provides that, notwithstanding normal application of the civil penalty assessment process, a civil penalty of at least the base amount should normally be proposed in this type of case to reflect the significance of the violation and to emphasize the importance of maintaining control of licensed material. See Section VII.A.1(g) of the Enforcement Policy. The base civil penalty values were developed to correspond to approximately three times the average cost of disposal. Normal application of the civil penalty assessment process, as reflected in Tables 1A.f.2 and 1B of the Enforcement Policy, would result in a civil penalty of $7500 in this case. The revised Enforcement Policy, however, also provides that civil penalties may be adjusted to correspond to three times the actual expected cost of authorized disposal. Your June 13, 2001, letter included a letter from the manufacturer of the lost gauge stating that the manufacturer would dispose of the device for $700. Based on this, three times the expected cost of authorized disposal is $2100. However, the NRC has concluded that a civil penalty amount less than the lowest base civil penalty is not sufficient to adequately emphasize the importance of maintaining control of licensed material in the circumstances of this case. Therefore, 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 (Notice) in the amount of $3000 for the Severity Level III violation. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in your letter, dated June 13, 2001. Therefore, you are not required to respond to this Notice pursuant to the provisions of 10 CFR 2.201, unless your response of June 13, 2001, does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response, if you choose to provide one, 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. 030-32036
License No. 24-24619-02

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Midwest Testing, Inc.
Bridgeton, Missouri
Docket No. 030-32036
License No. 24-24619-02
EA-01-119

During an NRC inspection conducted on April 17, 2001, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, February 16, 2001, 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 violation and associated civil penalty are set forth below:

10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in unrestricted areas. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in an unrestricted area and not in storage. As defined in 10 CFR 20.1003, unrestricted area means an area, access to which is neither limited nor controlled by the licensee.
Contrary to the above, on April 6, 2001, the licensee did not secure from unauthorized use or limit access to a Humbolt moisture density gauge containing nominally an 11 millicurie {0.41 GBq} cesium-137 sealed source and a 44 millicurie {1.6 GBq} americium-241 sealed source at Hazelwood Avenue in Hazelwood, Missouri, a temporary job site and an unrestricted area. Specifically, the operator left the gauge unattended on the open tailgate of a pickup truck for approximately 15 minutes, left the site and drove about 1 mile before noticing that the gauge was missing.
This is a Severity Level III violation (Supplement IV).
Civil Penalty - $3000

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in your June 13, 2001 letter. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to a Notice of Violation," and send it to the U.S. Nuclear Regulatory Commission, ATTN:  Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, Region III, 801 Warrenville Road, Lisle, IL 60532-4351, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

The Licensee may pay the civil penalty proposed above or the cumulative amount of the civil penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 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 the Licensee fail to answer within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty, an order imposing the civil penalty will be issued. Should the Licensee 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 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.C.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee 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 that 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 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Frank 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.

If you choose to respond, your 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-rma/adams.html (the Public NRC Library). Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 20th day of July 2001.

 

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