United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-245 - Design Fuels Corporation

October 9, 2001

EA No. 01-245

George E. Karsnak
President
Design Fuels Corporation
14170 Easy Street
North Huntingdon, PA 15642

SUBJECT:   NOTICE OF VIOLATION (NRC Inspection 99990001/2000009)

Dear Mr. Karsnak:

This refers to the inspection conducted on April 23, 2001, at the above address. The purpose of the inspection was to review the circumstances associated with a TN Technologies gauge Model 5191 (serial number B1806) that was found abandoned in the State of Alabama in November 2000. The inspection was continued in the Region I office until August 24, 2001, and included our review of bankruptcy court papers involving Tailings Process Corporation. The enclosed report documents the details of this inspection.

Mr. Frank Costello of my staff attempted to contact you by telephone on 09/20/01, and left an automated message, to inform you that the NRC has sufficient information regarding an apparent violation of NRC requirements that occurred as a result of your company's actions to make an enforcement decision without a predecisional enforcement conference or a written response from you. Since you have not responded to our phone call, we have decided to proceed with our enforcement action.

Based on the results of this inspection, one violation of NRC requirements was identified and is described in the enclosed Notice of Violation (Notice). The violation involves your company's improper transfer of a gauge regulated by the NRC under a general license. Specifically, in 1989, your company improperly transferred a TN Technologies Model 5191 gauge from the Nemacolin Mine site in McKeesport, Pennsylvania, to a location in Hueytown, Alabama. This was an improper transfer because the recipient of the gauge was not licensed by the State of Alabama to receive the device.

This violation is of concern to the NRC because the gauge was subsequently found buried in a field in Alabama with the shutter open. Although there were no known radiation exposures that resulted from this occurrence, there was potential for radiation doses in excess of the limits to members of the public, given that this abandoned gauge was found with the shutter in the open position. Therefore, the violation is classified at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600 (enclosed).

In accordance with the Enforcement Policy in effect at the time of the violation, a base civil penalty is considered for a Severity Level III problem. 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 not warranted for Corrective Action since no corrective actions were taken by your company. In this case, application of the normal civil penalty assessment process would result in a civil penalty in the amount of the base penalty for the Severity Level III violation. However, this violation occurred in 1989 and the time since the occurrence exceeds the five year statute of limitations for assessment of civil penalties (28 USC 2462). Therefore, a civil penalty is not being issued in this case.

You are not required to respond to this letter because you are no longer involved in NRC licensed activities. However, if you should become involved with NRC licensed activities in the future, you must provide a written response to the NRC, before you begin licensed activities, regarding your corrective actions taken to prevent recurrence of the violation.

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, if any, 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).

Sincerely,

  /RA/

  James T. Wiggins
Deputy Regional Administrator

Docket No. 999-90001
(General License)

Enclosure:  Notice of Violation

cc w/encl:
Commonwealth of Pennsylvania
State of Alabama


ENCLOSURE

NOTICE OF VIOLATION

Design Fuels Corporation
North Huntingdon, PA
  Docket No. 999-90001
General License
EA 01-245

During an NRC inspection conducted on April 23, 2001, and continued in the Region I office until August 24, 2001, one violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

10 CFR 31.5(c)(8) requires, in part, that any person who acquires, receives, possesses, uses or transfers byproduct material in a device pursuant to the general license in 10 CFR 31.5(a) shall, except as provided in 10 CFR 31.5(c)(9), transfer or dispose of the device containing byproduct material only by transfer to persons holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to receive the device.
Contrary to the above, in 1989, Design Fuels Corporation transferred a TN Technologies' Model 5191 fixed gauging device containing 1 curie of Cesium-137, to a person not holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to receive the device, and the exceptions in 10 CFR 31.5(c)(9) did not apply. Specifically, the device was transferred to a facility in Alabama that was not licensed by the State to receive the device.
This is a Severity Level III violation (Supplement VI).

You are not required to respond to this Notice of Violation at this time. However, if you should become involved with NRC licensed activities in the future, you must provide a written response to the NRC, before you begin licensed activities, regarding your corrective actions taken to prevent recurrence of the violation. Also, 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 either case, or if you choose to respond, you should 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 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). 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.

Dated this 9th day of October 2001

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