EA-02-057 - Dept of Interior, Bureau of Indian Affairs

June 26, 2002

EA-02-057

Ms. Alice Harwood
Assistant Area Director
Department of the Interior
Bureau of Indian Affairs
Aberdeen Area Office
115 4^th Avenue Southeast
Aberdeen, South Dakota 57401

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT 030-08502/01-01 AND OI INVESTIGATION REPORT 4-2001-052)

Dear Ms. Harwood:

This refers to the NRC inspection conducted on October 30, 2001, at your facility in Aberdeen, South Dakota, and to the investigation conducted by the NRC's Office of Investigations, which was initiated on November 19, 2001, and completed on February 19, 2002. On April 15, 2002, the NRC informed you by telephone that the NRC was considering escalated enforcement action for apparent violations identified by the inspection and investigation, and on April 29, 2002, we issued a report which described two apparent violations. The apparent violations involved a failure to appoint a radiation safety officer (RSO) and a failure to amend your NRC license to reflect the appointment of a new RSO. On May 15, 2002, a pre-decisional enforcement conference was conducted in the NRC's Region IV office in Arlington, Texas, with you and members of your organization to discuss the apparent violations and to assist the NRC in making an enforcement decision.

At the conference, you and your staff acknowledged that you had not appointed an RSO in a timely manner, described the circumstances surrounding the failure to amend your license, and described your corrective actions. Your corrective actions included amending your license to name the current RSO, taking steps to appoint a backup RSO so that a trained RSO will be available to be named should an RSO leave, and taking steps to become more familiar with the conditions of your NRC license and other NRC requirements associated with your gauge program, and tracking compliance with those requirements. We note that you submitted a license amendment request on December 19, 2001, to have your current RSO placed on the license, and that the NRC approved that request on March 26, 2002.

Based on the information developed during the inspection and investigation, and the information that you provided during the conference, 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 were described in more detail in the subject inspection report. The violation incorporates both apparent violations and involves a failure to appoint a radiation safety officer (RSO) for approximately six months following the former RSO's departure in March 2000, and a willful failure to amend your NRC license to reflect the appointment of the new RSO once appointed in September 2000.

We recognize that the RSO who was appointed in September 2000 was not immediately aware of the requirement to amend the license. But once he received training in May 2001, where he was instructed in the need to amend the NRC license, our expectation is that he would have taken reasonably prompt action to determine what steps were required to amend the license, and then completed those steps. A simple phone call to the NRC's regional office would have quickly resolved any questions he had about this. And while he did eventually make contact with the regional office of the NRC, it was several months after he became aware of the requirement. Thus, while we understand the circumstances, we continue to believe this was a willful violation. Given the willful nature of this violation, it has been categorized at Severity Level III, in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

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 one aspect of the violation was willful, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Your office identified both aspects of this violation. Specifically, you recognized the need to name an RSO and did so in September 2000. In addition, your newly appointed RSO recognized the need to amend the license and had contacted the NRC's Region IV office prior to NRC's inspection in October 2001. Thus, credit for identification is warranted. As discussed above, you also initiated prompt action to restore compliance once you were put on notice that you were in violation, and you initiated steps to improve your gauge program to prevent a recurrence of these violations. This results in no civil penalty being assessed.

Therefore, to encourage prompt identification and comprehensive correction of violations, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action which 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, and the date when full compliance was achieved, is already adequately addressed on the docket in this letter and in your letter dated May 10, 2002, in which you responded to other violations associated with the NRC's inspection. Therefore, you are not required to respond to this letter unless the above-referenced documents do 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, should you choose to submit 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/
		Ellis W. Merschoff Regional Administrator

Docket No.: 030-08502
License No.: 40-15053-01

Enclosure: Notice of Violation

cc w/Enclosure: South Dakota Radiation Control Program Director

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NOTICE OF VIOLATION

Department of the Interior Bureau of Indian Affairs Aberdeen, South Dakota

Docket No. 030-08502 License No. 40-15053-01 EA-02-057

During an NRC inspection conducted on October 30, 2001, and an investigation completed on February 19, 2002, a 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 30.34(c) requires, in part, that each licensee confine its possession and use of byproduct materials to the locations and purposes authorized by the license. As of the time of the NRC's inspection on October 30, 2001, Condition 11-B of NRC License 40-15053-01 identified Mr. Gregory L. Heitmann as the radiation safety officer.

Contrary to the above, as of March 31, 2000, Mr. Heitmann was no longer employed by the licensee and was not the radiation safety officer, and the licensee did not name another radiation safety officer until September 15, 2000. In addition, despite naming a new radiation safety officer on September 15, 2000, the licensee did not apply for an amendment to its license to reflect the appointment of a new radiation safety officer until December 19, 2001.

This is a Severity Level III violation (Supplement VI).

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 the letter transmitting this Notice of Violation and in a letter from the Department of the Interior, Bureau of Indian Affairs, dated May 10, 2002. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description in the above-referenced documents 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 IV, 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 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.

Dated this 26th day of June 2002