EA-01-123 - Macia Consulting Enterprises, Inc.

May 31, 2001

EA 01-123

Humberto Macia
President and Radiation Safety Officer
Macia Consulting Enterprises, Inc.
287 New Hackensack Road
Poughkeepsie, NY 12603

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report 150-00031/01-02 and NRC Office of Investigation Case No 1-2001-009)

Dear Mr. Macia:

This refers to the NRC inspection conducted on April 11, 2001, at your temporary job site in Newark, New Jersey, to determine whether activities were conducted safely and in accordance with requirements. Although your activities involving the use of byproduct radioactive material (nuclear gauges) are licensed by the State of New York for work performed within that state (since New York is an Agreement State), the work activities performed in New Jersey are within the jurisdiction of the NRC, pursuant to an NRC general license. During the exit meeting for the NRC inspection, you were informed that three apparent violations of NRC requirements were identified. The apparent violations involved: (1) the failure to maintain security of the nuclear gauges at the temporary job site; (2) the failure to ensure shipping papers were readily available in the driver's compartment of the vehicle used during transport of the nuclear gauges; and (3) failure to provide the required training to one of the individuals who used the nuclear gauges.

This also refers to the investigation initiated by the NRC Office of Investigations (OI) to determine if falsified documents were provided to the NRC to indicate that a gauge user had received the requisite training. Although OI found that a document submitted to the NRC was not accurately dated, OI determined that the gauge user had received the required training and OI did not substantiate an intent by employees at Macia to mislead the NRC. The OI synopsis is enclosed.

On April 13, 2001, the NRC sent you a Confirmatory Action Letter (CAL), confirming your commitment to take certain immediate actions to address the apparent violations. In a letter to the NRC, dated April 18, 2001, you detailed those actions. You also provided information indicating that there was not a failure to provide hazardous material training to your employee. Based on that information, the NRC agrees that the third apparent violation discussed during the exit meeting did not occur.

The other two violations are described in the enclosed Notice of Violation. The most significant violation involves the failure to maintain security and control of two portable nuclear gauges containing licensed byproduct radioactive material, while the gauges were being used for work at a temporary job site in Newark, New Jersey. The violation occurred during the inspection when the NRC inspector observed that the two gauges had been left unattended and unsecured at the site by the gauge users. This violation did not result in any actual safety consequences since the portable gauges were not lost or stolen during the period that they were not properly controlled, nor were there any radiological exposures to other workers or members of the public. Nonetheless, the failure to maintain appropriate control of the gauges created the potential for loss or misuse of the gauges and potential unnecessary radiation exposure. Therefore, the violation is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In a telephone conversation on May 29, 2001, you informed Ms. Pamela Henderson, of my staff, that you did not believe that a predecisional enforcement conference, nor a written response, was needed, prior to the NRC deciding on appropriate enforcement action. The NRC agrees that it has sufficient information to take the action described below.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III violation. Because your facility has not been the subject of an escalated enforcement action within the last two years or two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit for corrective actions is warranted because your corrective actions, as described during the inspection, as well as in your response to the NRC Confirmatory Action Letter (CAL), were considered prompt and comprehensive. These actions included, but are not limited to: (1) counseling the individual gauge users who failed to maintain control and surveillance of the gauges; (2) implementation of a disciplinary policy for individuals who fail to follow requirements; (3) training for all gauge users on the security and control of gauges; and (4) conduct of an audit on gauge security and control at the Newark Airport jobsite.

Therefore, to encourage prompt and comprehensive correction of violations, I have been authorized to not propose a civil penalty in this case. However, similar violations in the future could result in further escalated enforcement action. In addition, issuance of this Notice constitutes escalated enforcement action that may increase the NRC inspection effort at your facility.

The second violation identified during the NRC inspection, which is also described in the enclosed Notice of Violation (Notice) and inspection report, involved the failure to ensure that shipping papers were readily available in the driver's compartment during the transport of two Troxler nuclear density gauges. Specifically, the shipping papers were located inside the Troxler carrying case in the back of the van, rather that in the driver's compartment. Adherence to this requirement is important because the shipping papers should be available to emergency responders in the event of an accident or event involving the transport of licensed materials. This violation is categorized a Severity Level IV.

The NRC has concluded that information regarding the reason for the violations, and the corrective actions taken and planned to correct the violations and prevent recurrence, were already described adequately in the inspection report attached to this letter; in the NRC CAL, dated April 13, 2001; in your reply to the NRC CAL, dated April 18, 2001; or in this letter. Therefore, you are not required to respond to this letter unless the description therein 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 and its enclosures, and your response will be available electronically for public inspection in the NRC Public Document Room or from the Publically Available Records (PARS) component of the NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public Reading Room.

		Sincerely,
		/RA/
		Hubert J. Miller Regional Administrator

Docket No. 150-00031
License No. 2823-4060 (State of New York)

Enclosure:  Notice of Violation

cc w/encls:
State of New York

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ENCLOSURE

NOTICE OF VIOLATION

Macia Consulting Enterprises, Inc. Poughkeepsie, NY

Docket No. 15000031 NY License No. 2823-4060 EA 01-123

During an NRC inspection conducted on April 11, 2001, two violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the violations are listed below:

10 CFR 150.20(a) provides in part that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in non-Agreement States subject to the provisions of 10 CFR 150.20(b).

10 CFR 150.20(b) requires, in part, that notwithstanding any provisions to the contrary in any specific license issued by an Agreement State to a person engaging in activities in a non-Agreement State, under the general license in this section, the general license provided in this section is subject to all applicable rules, regulations, and orders of the Commission including the provisions of 10 CFR Parts 20 and 71.

	A.	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 April 11, 2001, the licensee did not secure from unauthorized removal, or limit access to, two Troxler portable nuclear density gauges containing 8 millicuries of Cs-137 and 40 millicuries of Am-241 located at the Newark International Airport, Newark, New Jersey (a temporary job site outside the Agreement State of New York), nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, two gauge users left their respective gauges unattended and unsecured. This is a Severity Level III violation (Supplement IV).
	B.	10 CFR 71.5(a) requires that a licensee who transports licensed material outside of the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers licensed material to a carrier for transport, comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation (DOT) in 49 CFR Parts 170 through 189. 49 CFR 177.817(e) requires, in part, that the driver of a motor vehicle containing hazardous material ensure that the shipping paper is readily available to, and recognizable by, authorities in the event of accident or inspection. Specifically, (i) when the driver is at the vehicle's controls, the shipping paper shall be: (a) within his immediate reach while he is restrained by the lap belt; and (b) either readily visible to a person entering the driver's compartment or in a holder which is mounted to the inside of the door on the driver's side of the vehicle; (ii) when the driver is not at the vehicle's controls, the shipping paper shall be: (a) in a holder which is mounted to the side of the door on the driver's side of the vehicle; or (b) on the driver's seat in the vehicle. Pursuant to 49 CFR 172.101, radioactive material is classified as a hazardous material. Contrary to the above, on April 11, 2001, the licensee transported two Troxler nuclear density gauges containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 outside the site of usage, as specified on their New York State license, or on a public highway, and the driver of the vehicle did not ensure that the shipping paper was readily available in the driver's compartment, as required. Specifically, the shipping papers were located inside the Troxler carrying case in the back of the van. This is a Severity Level IV violation (Supplement V).

The NRC has concluded that information regarding the reason for the violations, and the corrective actions taken and planned to correct the violations and prevent recurrence are already adequately addressed on the docket in the letter transmitting this NOV; in the inspection report attached to that letter; in the NRC Confirmatory Action Letter (CAL), dated April 13, 2001; or in the licensee's reply to the NRC CAL, dated April 18, 2001. 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 I, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

If you contest this enforcement action, you should also provide a copy of your response, with the basis for your denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

If you choose to respond, your response will be placed in the NRC Public Document Room (PDR) and on the NRC Web site. To the extent possible, it should, therefore, not include any personal privacy, proprietary, or safeguards information so that it can be made publically available without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated this 31st day of May 2001