EA-01-218 - Palmerton & Parrish, Inc.

November 1, 2001

EA-01-218

Mr. Fred E. Palmerton, P.E., President
Palmerton & Parrish, Inc.
4166 W. Kearney
Springfield, MO 65803

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$3000 (NRC INSPECTION REPORT NO. 03030927/2001-001(DNMS))

Dear Mr. Palmerton:

This refers to the inspection conducted on August 6, 2001, at Palmerton & Parrish, Inc., in Springfield, Missouri. The inspection included a review of the circumstances surrounding the July 31, 2001, loss and subsequent recovery of a portable moisture density gauge. The inspection report was transmitted to you on September 7, 2001, and identified four apparent violations of NRC requirements. The apparent violations involve: (1) failure to maintain control of radioactive material that is in an unrestricted area and that is not in storage; (2) failure to transport the gauge in its Type A container; (3) failure to block and brace the gauge during transportation; and; (4) failure to lock the gauge while being transported.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violations 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 September 24, 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 violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation and the circumstances surrounding them are described below and in detail in the subject inspection report. On July 31, 2001, you notified the NRC regarding the loss of a device containing licensed material. In an August 24, 2001 letter, you provided a written report on the lost gauge. A portable moisture density gauge was left unlocked and unsecured in the open bed of a company vehicle and was subsequently lost while being transported to another job site. Further, you indicated that the authorized user left the temporary job site, an unrestricted area, without properly securing the gauge in an approved shipping container and failed to lock the gauge before leaving the site. The gauge was found and returned to you by a member of the public.

The failure to adequately control radioactive material in an unrestricted area and to properly prepare the gauge for transport, resulted in the gauge being lost in the public domain with the source rod unsecured. These violations represent a significant safety issue, since implementing adequate control and transportation requirements for licensed materials is intended to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. Therefore, the violations have been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), February 16, 2001, as a Severity Level III problem.

In accordance with the Enforcement Policy, a civil penalty is considered for a Severity Level III problem involving the loss of a device such as the moisture density gauge lost by Palmerton & Parrish, Inc. 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. Based on your August 24, 2001 letter, credit was warranted for corrective actions that included: (1) reprimanding the individual involved with the loss of the gauge; and (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.

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 violations 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 in the Enforcement Policy 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 September 24, 2001 letter, stated the approximate disposal cost for a gauge would be $500. This included $300 for disposal, based on the manufacturer's Source Recovery Price List, dated August 14, 2001, and approximately $200 in transportation costs associated with returning a gauge to the manufacturer. Based on this, three times the expected cost of authorized disposal is $1500. However, the NRC has concluded that a civil penalty amount less than the lowest base civil penalty is not sufficient to emphasize adequately 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 problem. 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 violations, the corrective actions taken and planned to correct the violations and prevent recurrence, is already adequately addressed on the docket in your letters, dated August 24 and September 24, 2001. Therefore, you are not required to respond to the provisions of 10 CFR 2.201 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, its enclosures, 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 the Public NRC Library.

		Sincerely,
		/RA/ James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 030-30927
License No. 24-25998-01

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Palmerton & Parrish, Inc. Springfield, Missouri

Docket No. 030-30927 License No. 24-25998-01 EA-01-218

During an NRC inspection conducted on August 6, 2001, violations of NRC requirements were 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 violations and associated civil penalty are set forth below:

	1.	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, 2001, the licensee did not control and maintain constant surveillance of a Troxler Model 3440 moisture/density gauge containing nominally 8 millicuries of cesium-137 and 40 millicuries of americium-241 in two sealed sources at a temporary job site in Green County, Missouri, an unrestricted area. Specifically, the operator left the nuclear gauge on the bed of an open-bed pickup truck unattended when discussing job delays with the job foreman and then proceeded to a second job site without ensuring the gauge was secured.
	2.	10 CFR 71.5(a) requires that a licensee who transports licensed material outside 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.
		A.	49 CFR 171.2(b) requires, in part, that no person may transport a hazardous material in commerce unless the material is handled and transported in accordance with applicable requirements of this subchapter. 49 CFR 173.415 authorizes Type A packages for the shipment of radioactive material. Contrary to the above, on July 31, 2001, the licensee transported on a public highway 8 millicuries of cesium-137 and 40 millicuries of americium-241 in two sealed sources in a Troxler Model 3440 moisture/density gauge, in a way that was not authorized pursuant to 49 CFR 173.415. Specifically, the gauge was transported without being in its storage container, and the gauge alone is not considered a Type A package as required by 49 CFR 173.415.
		B.	49 CFR 177.842 requires, in part, that packages of radioactive materials be so blocked and braced that they cannot change position during conditions normally incident to transportation. Contrary to the above, on July 31, 2001, the licensee transported a package containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 in two sealed sources in a Troxler Model 3440 moisture/density gauge outside the site of usage on a public highway, and the package was not blocked and braced such that it could not change position during conditions normally incident to transportation. Specifically, the gauge was in the back of a pickup truck with the tail gate open, and as a result, the gauge subsequently fell from the transport vehicle and was lost on a public highway.
	3.	Condition 17 of License No. 24-25998-01, requires that each portable gauge have a lock or outer locked container designed to prevent unauthorized or accidental removal of the sealed source from its shielded position. The gauge or its container must be locked when in transport, storage, or when not under the direct surveillance of an authorized user. Contrary to the above, on July 31, 2001, the licensee's authorized user failed to place the gauge into an outer locked container and lock the portable gauge's source rod before transporting the gauge to a temporary job site in Green County, Missouri, and the portable gauge was not under the direct surveillance of an authorized user.

This is a Severity Level III problem (Supplements IV, V, and VI).
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 letters, dated August 24, 2001 and September 24, 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 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 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 1^st day of November 2001.