United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-149 - Testwell Laboratories, Inc.

June 14, 2001

EA 01-149

V. Reddy Kancharla
President
Testwell Laboratories, Inc.
47 Hudson Street
Ossining, NY 10562

SUBJECT:   NOTICE OF VIOLATION (NRC Inspection Report 150-00031/01-04)

Dear Mr. Kancharla:

This refers to the inspection conducted by telephone on May 30, 2001, regarding use of portable nuclear gauges by Testwell Laboratories, Inc. in non-Agreement States. During the telephone inspection, you were informed that one apparent violation of NRC requirements was identified for the failure to notify the NRC regarding work with nuclear gauges at a job site in New Jersey, a non-Agreement State.

The violation is described in the enclosed Notice of Violation (Notice). Specifically, the violation involves the failure to file for reciprocity with the NRC, through the application of NRC Form 241, to use licensed materials in New Jersey (a non-Agreement State). It is our understanding that this violation resulted due to mis-communication within your organization as to who was responsible for filing for reciprocity for use of portable nuclear gauges in non-Agreement States. The failure to notify the NRC regarding your activities outside the State of New York did not allow the NRC the opportunity to perform inspections to ensure compliance with applicable regulations. 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 (enclosed).

In a telephone conversation on June 12, 2001, Pamela J. Henderson of my staff informed Mr. Stephen M. Latus of your staff, that the NRC had sufficient information regarding the violation and your corrective actions to make an enforcement decision without a predecisional enforcement conference or a written response from you. Mr. Latus indicated that Testwell Laboratories, Inc. also did not believe that a predecisional enforcement conference or written response was needed.

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, were considered prompt and comprehensive. These actions included, but are not limited to: (1) suspension of work with the portable gauges outside the State of New York until after filing for reciprocity with the NRC; and (2) timely filing of Form 241 for reciprocity to perform licensed activities outside the State of New York. In addition, Mr. Latus informed us that he was preparing to submit a specific license application for activities in areas within NRC jurisdiction (outside the State of New York or other Agreement States).

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 NRC has concluded that information regarding the reason for the violation, and the corrective actions taken and planned to correct the violation and prevent recurrence, were already described adequately in this letter or in the "Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Water," NRC Form 241 dated May 30, 2001. 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 http://www.nrc.gov/reading-rm/adams.html (the Public Reading Room). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

Sincerely,

/RA/ James T. Wiggins Acting For

Hubert J. Miller
Regional Administrator

Docket No. 150-00031
License No. 2406-3328 (State of New York)

Enclosure: Notice of Violation

cc w/ encl.:
Stephen M. Latus, Radiation Safety Officer
State of New York, Department of Labor
State of New Jersey


ENCLOSURE
NOTICE OF VIOLATION

Testwell Laboratories, Inc.
Ossining, NY
  Docket No. 15000031
License No. 2406-3328
EA 01-149

During an NRC inspection conducted by telephone on May 30, 2001, one violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the violation is 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)(1) requires, in part, that any person engaging in activities in non-Agreement States shall, at least 3 days before engaging in each such activity, file 4 copies of NRC Form-241, "Report of Proposed Activities in Non-Agreement States", with the Regional Administrator of the appropriate NRC regional office.
Contrary to the above, between January 5, 2001 and May 30, 2001, Testwell Laboratories, Inc., a licensee of the State of New York, used cesium-137 and americium-241 in portable nuclear gauges in New Jersey, a non-Agreement State, for 110 days without a specific license issued by the NRC and without filing a Form-241 with the NRC.
This is a Severity Level III violation (Supplement VI).

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 and in the "Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Water," NRC Form 241 dated May 30, 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. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

If you choose to respond, your response will be placed in the NRC Public Document Room (PDR) and on the NRC Web site at http://www.nrc.gov/reading-rm/adams.html. 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.

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

Dated this 14th day of June 2001

 

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