EA-01-282 - University of Wisconsin-Madison

December 21, 2001

EA-01-282

Mr. John Torphy, Vice Chancellor
University of Wisconsin-Madison
Room 100
Bascom Hall
Madison, WI 53706

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY- $3000 (NRC Special Inspection Report No. 03003465/2001-003(DNMS))

Dear Mr. Torphy:

This refers to the inspection conducted on October 9, 2001, at the University of Wisconsin in Madison, Wisconsin. The inspection was conducted to review the circumstances surrounding the loss of six plated sources containing americium-241 (Am-241). The results of the inspection identified an apparent violation involving the failure to secure from unauthorized removal or access to licensed material stored in controlled or unrestricted areas. The inspection report was issued November 6, 2001.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violations identified in the report by either attending a predecisional enforcement conference or providing a written response before we made our final enforcement decision. In a letter dated November 15, 2001, your radiation safety officer, Mr. Ronald Bresell, provided a response to the apparent violations.

Based on the information developed during the inspection and the information provided in the University's November 15, 2001, letter, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it are described in detail in the subject inspection report. The University lost six Am-241 plated sources during the renovation of laboratory No. 342 in the Structural Botany Building in or around June 2001. On September 27, 2001, the University reported the loss of three sources, which the NRC subsequently determined to be four lost sources. Prior to the University notifying the NRC, the radiation protection staff recovered two of the six sources on September 13, 2001. The University believes the remaining sources were disposed of in the normal trash when the floor of the laboratory was cleaned. The sources each contained nominally 6.5 microcuries of Am-241.

The failure to secure the Am-241 sources from unauthorized removal or access resulted in the loss of licensed material. 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), NUREG-1600 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 greater than 1 microcurie of Am-241. 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) conducting four separate surveys of the laboratory and surrounding area seeking the sources; (2) storing the remaining sources in the radiation safety department; (3) terminating the user's authorization since these were the only sources possessed; (4) designing a new Caution Radioactive Materials door sign, which includes the instructions to call radiation safety before removing any items from a radioactive material laboratory or storage area; and (5) planning to publish an article in the University's December newsletter describing the event and the corrective actions taken.

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.3 and 1B of the Enforcement Policy, would result in a civil penalty of $3000 in 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 is already adequately addressed on the docket in a letter from the University, dated November 15, 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 enclosure, and your response, if any, 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/
		J. E. Dyer Regional Administrator

Docket No. 030-03465
License No. 48-09843-18

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

University of Wisconsin-Madison Madison, Wisconsin

Docket No. 030-03465 License No. 48-09843-18 EA-01-282

During an NRC inspection conducted on October 9, 2001, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, 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 controlled or 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 that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, 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, in approximately June 2001, the licensee did not secure from unauthorized removal or limit access to 39 microcuries of americium-241 in six sealed sources stored in laboratory No. 342, an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, six 6.5 microcurie americium-241 sealed sources were lost during the renovation of laboratory No. 342. Subsequently, two of the six sources were recovered with four sources remaining lost.

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 will be achieved, is already adequately addressed on the docket in a letter from the University, dated November 15, 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 20555-0001 with a copy to the Regional Administrator, Region III, 801 Warrenville Road, Lisle, IL 60532, 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 which 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, Mail Stop 14E1, Washington, DC 20555-0001, 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 21^st day of December 2001.