EA-02-135 - Alt & Witzig Engineering, Inc.

September 26, 2002

EA-02-135

William E. Witzig, P. E.
President
Alt & Witzig Engineering, Inc.
4105 West 99^th Street
Carmel, IN 46032

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $3000 (NRC INSPECTION REPORT NO. 030-35111/2002002 (DNMS))

Dear Mr. Witzig:

This refers to the inspection conducted May 28 through June 7, 2002, at your facilities in South Bend and Carmel, Indiana. This was a special inspection to review the circumstances surrounding the loss of a moisture density gauge on May 3, 2002. The inspection report was transmitted to Alt & Witzig Engineering, Inc., on July 5, 2002. The report identified three apparent violations of NRC requirements: (1) failure to block and brace the gauge during transportation; (2) failure to immediately notify the NRC of the lost gauge; and (3) failure to store the gauge in authorized locations.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violations identified in the report by either participating in a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. In a letter, dated July 30, 2002, you provided a response to the apparent violations. In your response, you contested the apparent violation for the failure to immediately notify the NRC of the lost gauge, because you believed that the NRC was contacted as soon as you were available to do so. You stated that delays in notifying the NRC were caused by you not immediately being available and waiting until the details of the incident were known before contacting the appropriate authorities. However, the requirement to report lost licensed material does not require that the telephonic report include the circumstances surrounding the loss or steps taken to recover the licensed material. This information is required to be included in the 30-day report. Immediate reporting is intended to make the NRC aware of the loss and allow us to respond effectively if needed. Therefore, we consider the violation of 10 CFR 20.2201(a)(1), for failure to immediately report the lost moisture density gauge to be valid.

Based on the information developed during the inspection and the information that you provided in your response to the inspection report, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. A portable moisture density gauge was lost the morning of May 3, 2002, on a public highway while being transported from an individual's residence, where the gauge was stored overnight, to a temporary job site. The loss occurred when the authorized user failed to adequately block and brace the gauge in the open bed of a pickup truck and failed to close the tailgate on the truck properly. The gauge fell out of the truck while in-route to the job site. The gauge was found that morning by a member of the public who notified the local police department that afternoon. The NRC was notified of the lost gauge late in the afternoon of the same day. The gauge was found locked in its case with the source rod locked in the shielded position.

The failure to properly prepare (block and brace) the gauge for transport resulted in the gauge being lost in the public domain. This violation represents a significant safety issue, because implementing adequate transportation requirements for licensed materials is intended to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. The failure to immediately notify the NRC of the lost gauge is a regulatory concern, in that the NRC depends on timely reporting of events in order to respond effectively when required. Therefore, these 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. Notwithstanding the notification violation, under NRC's Enforcement Policy, the loss of the gauge would have resulted in a Severity Level III violation.

In accordance with the Enforcement Policy, a civil penalty is considered for a Severity Level III violation involving the loss of a device such as the moisture density gauge lost by Alt & Witzig Engineering, 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. Credit was warranted for corrective actions that included: (1) retracing the individual's route in an attempt to locate the gauge; (2) reprimanding the individual involved with the lost gauge; (3) issuing a directive to all authorized users and managers that gauges will not be transported in the open bed of trucks; (4) transporting gauges only in a locked steel transportation box; and (5) authorizing other individuals to contact the NRC in the radiation safety officer's absence.

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 in the Enforcement Policy were developed to correspond to approximately three times the average cost of disposal. Application of the civil penalty assessment process for a lost source, 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 July 30, 2002 response letter, stated the approximate disposal cost for a gauge would be $600, which, when tripled, would be $1800. However, in this case, the NRC has concluded that a civil penalty amount less than the lowest base civil penalty of $3,000 is not sufficient to emphasize adequately the importance of properly preparing licensed material for transportation and immediately notifying the NRC when licensed material has been lost. 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 reviewed the specific circumstances surrounding the apparent violation for storing a portable moisture density gauge at an unauthorized location and based on those circumstances, is refraining from issuing a violation in this case.

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, and the date when full compliance was achieved, is already adequately addressed on the docket in Inspection Report No. 030-3511/2002002(DNMS) and your letter, dated July 30, 2002. 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 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/	James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 030-35111
License No. 13-18685-02

Enclosures: Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Alt & Witzig Engineering, Inc. Carmel, Indiana

Docket No. 030-35111 License No.13-08685-02 EA-02-135

During an NRC inspection conducted May 28 through June 7, 2002, violations of NRC requirements were 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 violations and associated civil penalty are set forth below:

A.

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. 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 May 3, 2002, the licensee transported a package containing 8 millicuries of cesium-137 and 40 millicuries of americium-241/beryllium in two sealed sources in a Troxler Model 3430 moisture/density gauge 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 authorized user failed to lock the chain securing the transport case containing the gauge to the truck chassis and to ensure the tailgate was properly closed, as a result the gauge fell from the vehicle and was lost on a public road.

B.

10 CFR 20.2201 (a)(1) requires, in part, that the licensee report by telephone to the NRC Operations Center immediately after its occurrence becomes known to the licensee, any lost, stolen, or missing licensed material in an aggregate quantity equal to or greater than 1000 times the quantity specified in Appendix C to Part 20. Contrary to the above, on May 3, 2002, the licensee did not immediately notify the NRC Operations Center of the loss of NRC-licensed material in the aggregate quantity greater than 1000 times the quantity specified in Appendix C to Part 20. Specifically, on the morning of May 3, 2002, the licensee discovered that a Troxler portable moisture density gauge, containing 8 millicuries of cesium-137 and 40 millicuries of americium-241/beryllium, in two sealed sources, had fallen from a company vehicle onto a public roadway, and the licensee did not notify the NRC Operations Center until late that afternoon, approximately 8 hours after identification.

This is a Severity Level III problem(Supplements IV and V).
Civil Penalty – $3000

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, and the date when full compliance was achieved, is already adequately addressed on the docket in Inspection Report No. 030-3511/2002002 (DNMS) and the licensee's letter, dated July 30, 2002. However, Alt & Witzig Engineering, Inc., (licensee) is 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, 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(s) 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 a 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 responses 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, 801 Warrenville Road, Suite 255, Lisle, IL 60532-4351.

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 26^th day of September 2002