United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-02-215 - Rio Construction Corporation

January 15, 2003

EA-02-215

Rio Construction Corporation
ATTN: Mr. Gregory Mazza
             Vice-President of Administration
PO Box 10462
Caparra Heights, Puerto Rico 00922-0462

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY-$3,000 (NRC INSPECTION REPORT NO. 52-25537-01/02-01 AND OFFICE OF INVESTIGATIONS REPORT 2-2002-012)

Dear Mr. Mazza:

This refers to an investigation completed by the Nuclear Regulatory Commission's (NRC) Office of Investigations (OI) on August 27, 2002. The purpose of the OI investigation was to determine whether Rio Construction Corporation (RCC) deliberately allowed an employee to use a moisture density gauge without the required radiation safety training. The investigation was conducted as a follow-up to an NRC Inspection (Report No. 52-25537-01/02-01), issued under letter of June 13, 2002. This letter also provided RCC the opportunity to either respond to the apparent violations in writing or request a predecisional enforcement conference. You provided your response to the apparent violations by letter dated December 5, 2002, which also addressed the causes and corrective actions to prevent recurrence.

Based on the information developed during the inspection and investigation, and the information in your December 5, 2002, response, the NRC has determined that three violations of regulatory requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. The violation cited in Part I of the Notice involved the failure to properly train an individual prior to allowing his unsupervised use of licensed materials, as required by License Condition 11 to your NRC license. No actual radiological consequences occurred as a result of the violation cited in Part 1 of the Notice. In addition, the potential consequences were low because the individual received on-the-job training by a qualified gauge operator and had some level of knowledge in the day to day operations as well as emergency procedures. This amount of training, however, did not satisfy the training requirements of the license. Thus, given the low safety significance, the violation cited in Part I of the Notice would normally be characterized at Severity Level IV in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. However, the NRC concluded that the violation in Part I of the Notice was due to the willful (deliberate) actions of an RCC employee. In accordance with the Enforcement Policy, the NRC holds licensees directly responsible for the acts of their employees, and for the consequences of these acts. Violations of a deliberate nature are particularly significant to the NRC, because our regulatory program is based on licensees and their employees acting with integrity and candor in adhering to regulatory requirements. Based on this and in accordance with the Enforcement Policy, the NRC has concluded that the violation cited in Part I of the Notice should be characterized at Severity Level III.

In your response of December 5, 2002, you denied that the violations occurred as stated. You indicated that the violations were attributed to the acts of an employee, without RCC management knowledge or approval. However, as indicated above, the NRC's Enforcement Policy is clear in this matter; the NRC holds licensees responsible for the acts of their employees. Your response provided no new information to change the staff's conclusion regarding the deliberate actions of the employee. As such, the NRC concluded that the violations occurred as stated.

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 the violation was willful (deliberate), the NRC considered whether credit was warranted for the factors of Identification and Corrective Action in accordance with the civil penalty assessment process described in Section VI.C.2 of the Enforcement Policy. Regarding the factor of identification, the NRC concluded that this issue was identified during an NRC inspection, and additional details were identified during the OI investigation. As such, credit was not warranted for the factor of Identification. As documented in your response of December 5, 2002, your corrective actions included the training of personnel to properly handle nuclear gauges and the assignment of a new Radiation Safety Officer to oversee RCC's use of nuclear gauges. NRC Inspection Report No. 52-25537-01/02-01, documented our verification of the training of personnel in accordance with regulatory requirements. Based on this, the NRC concluded that credit was warranted for the factor of Corrective Action.

Therefore, to emphasize the importance of prompt identification of issues and compliance with regulatory requirements, 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 base amount of $3,000 for the Severity Level III violation In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Two additional violations (Violation II.A and II.B) were identified and are cited in the enclosed Notice, involving the failure to provide personnel dosimetry to an individual involved in licensed activities, and the failure to maintain records of licensed materials receipts. Based on the low safety significance and the fact that these violations were not willful, the violations have been characterized at Severity Level IV in accordance with the Enforcement Policy.

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 will be achieved is adequately addressed on the docket in NRC Inspection Report No. 52-25537-01/02-01, your response of December 5, 2002, and in this letter. Therefore, you are not required to respond to the violations contained in this letter unless the description herein 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 http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library).

If you have any questions regarding this matter, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety, at 404-562-4700.

Sincerely,

  /RA/

  Luis A. Reyes
Regional Administrator

Docket No. 030-35472
License No. 52-25537-01

Enclosures:  
Notice of Violation and Proposed Imposition Of Civil Penalty


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Rio Construction Corporation
Caparra Heights, Puerto Rico
  Docket No. 030-35472
License No. 52-25537-01
EA-02-215

During a Nuclear Regulatory Commission (NRC) inspection completed on June 13, 2002, and an investigation completed by the NRC's Office of Investigations (OI) on August 27, 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:

1.   Violation Assessed a Civil Penalty

  A.   License Condition 11 to NRC License No. 52-25537-01, requires that licensed materials only be used by, or under the supervision and in the physical presence of, individuals who have received the training described in the application dated August 1, 2000. Item 8.1, of the application dated August 2000, states that, before using licensed material, authorized users will have successfully completed a training course as specified by NUREG-1556, Volume 1, dated May 1997.

Contrary to the above, between January 2001 and March 2001, an individual who had not received training in accordance with License Condition 11 to NRC License No. 52-25537-01, and did not work under the supervision and in the physical presence of, individuals who have received the training described in the application dated August 1, 2000, used licensed materials. Specifically, the individual used materials unsupervised approximately twice per week during the specified period.

  This is a Severity Level III violation (Supplement VI).
Civil Penalty - $3,000

II.   Violations Not Assessed a Civil Penalty

  A. License Condition 21 of NRC License No. 52-25537-01, requires that the licensee conduct its program in accordance with the statements, representations, and procedures contained in the documents, including the license application dated August 1, 2000.

Item 10.4 of the application dated August 1, 2000, states in part, that the licensee will provide monthly or quarterly exchanged dosimetry, processed and evaluated by a NVLAP-approved processor.

Contrary to the above, the licensee failed to provide personal dosimetry to an individual who performed licensed activities from December 2001 to March 15, 2002.

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

  B. 10 CFR 30.51 requires that each person who receives byproduct material pursuant to a license issued pursuant to the regulations in this Part and Parts 31 through 36 of this Chapter keep records showing the receipt, transfer, and disposal of the byproduct material, and that the licensee retain each record of receipt of byproduct material as long as the material is possessed and for three years following transfer.

Contrary to the above, on August 16, 2001, the licensee received one moisture density nuclear gauge from Super Asphalt Pavement (another NRC Licensee), but failed to document the transfer of byproduct material in any manner.

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

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 NRC Inspection Report No. 52-25537-01/02-01, in your response of December 5, 2002, and in the letter transmitting this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). 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 II Atlanta Federal Center, 61 Forsyth St., SW, Suite 23T85, Atlanta, GA. within 30 days of the date of the letter transmitting this Notice.

Within 30 days of the date of this Notice, the Licensee may pay the civil penalty proposed above, 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 any or all the violations 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 payment of civil penalty 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 II, Atlanta Federal Center, 61 Forsyth St., SW, Suite 23T85, Atlanta, GA.

Should you choose to respond to the violation, 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), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library). If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 15th day of January 2003

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