United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-03-001 - Advance Testing Company, Inc.

January 28, 2003

EA 03-001

Christopher M. Brower
Radiation Safety Officer
Advance Testing Company, Inc.
3348 Route 208
Campbell Hall, NY 10916

SUBJECT:   NOTICE OF VIOLATION (NRC Inspection Report No. 150-00031/2002-002)

Dear Mr. Brower:

This refers to the NRC inspection conducted via telephone on November 21, 2002, to review the circumstances regarding an event at your temporary job site located at the intersection of Highways Route 7 and Interstate 95 near Norwalk, Connecticut. The event involved the damage to an unattended nuclear gauge containing an approximate 8 millicurie cesium-137 source and an approximate 40 millicurie americium-241 source on August 6, 2002. You reported the gauge damage to the NRC via facsimile on August 7, 2002, wherein you described the event and the immediate corrective actions taken to prevent recurrence. The inspection was continued on December 9, 2002, and the enclosed report presents the results of this inspection. At the time of the event, you were using the gauge under an NRC general license as authorized by 10 CFR 150. Since you hold a specific license for this gauge in the State of New York (an Agreement state), 10 CFR 150 allowed you to use the gauge in Connecticut (a non-Agreement state subject to NRC requirements) under reciprocity.

In a telephone conversation between you and Mr. John Kinneman of NRC, Region I, on January 9, 2003, Mr. Kinneman stated that the NRC had identified one apparent violation of NRC requirements, but the NRC had sufficient information regarding the violation and your corrective actions to make an enforcement decision. However, the NRC offered you the opportunity to attend a predecisional enforcement conference or to provide a written response. You indicated that Advanced Testing Company, Inc., declined the opportunity to discuss this issue in a predecisional enforcement conference, but would submit a written response to provide further perspective on the circumstances involved with the apparent violation and your corrective actions taken to prevent a recurrence of the violation. In your written response, dated January 21, 2003, you stated that your operating and emergency procedures now include weekly visits by the Radiation Safety Officer or other members of management to verify that operational procedures, including proper security, are being followed by gauge operators. In addition, you also indicated that a letter has been issued to each employee explaining the importance of following security and safety procedures.

Based on the information developed during the inspection, and the information provided in your letter dated January 21, 2003, the NRC has determined that one 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 violation involved the failure to maintain control of the nuclear gauge, which resulted in damage to the gauge. The violation occurred when the gauge user left the gauge unattended in front of an asphalt roller and did not maintain constant surveillance of the gauge while he went to the rear of the asphalt roller. During the time period that the gauge was left unattended, the gauge was damaged when the asphalt roller moved forward and ran over the gauge. This violation is of concern to the NRC because: (1) the failure to control radioactive material resulted in the damage to the gauge; and (2) such sources can result in substantial unintended radiation dose to an individual when the source is removed from the unshielded position. Therefore, this violation is 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 involving the loss of control of radioactive material with this level of radioactivity. Because your facility has not been the subject of escalated enforcement action within the last two years or 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 for corrective actions is warranted because your corrective actions were considered prompt and comprehensive. These corrective actions included, but were not limited to: (1) immediately contacting the gauge manufacturer for instructions and placing the sources in a safe environment; (2) re-instructing the gauge operators in the licensee's security requirements for the use of gauges; (3) maintaining contact with the gauge operators almost daily; and, (4) performing site visits to inspect performance of gauge operators and continuing these visits for at least the next year.

Therefore, to encourage prompt and comprehensive correction of violations, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation for the Severity Level III violation with no civil penalty. However, you should be aware that significant violations in the future could result in a civil penalty. 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 your corrective actions taken and planned to correct the violations and prevent recurrence have been described in your January 21, 2003 letter, and are documented in this letter. Therefore, you are not required to respond to this letter 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. We appreciate your cooperation with us in this matter.

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).

Sincerely,

  /RA/ James T. Wiggins Acting For

  Hubert J. Miller
Regional Administrator

Docket No. 150-00031
License No. 2434-3468 (New York State)

Enclosure:  Notice of Violation

cc w/encl:
State of New York
State of Connecticut


NOTICE OF VIOLATION

Advance Testing Company, Inc.
Campbell Hall, New York
  Docket No. 150-00031
License No. 2434-3468(NY)
EA 03-001

During an NRC inspection conducted on November 21, 2002 and December 9, 2002, one violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the violation is set forth below:

10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, outside of a restricted area but inside the site boundary, 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, on August 6, 2002, the licensee did not control and maintain constant surveillance of a Troxler Model 3411B moisture density gauge (containing an 8-millicurie cesium-137 and a 40-millicurie americium-241 source) located at a temporary job site in Norwalk, Connecticut, which is an unrestricted area. Specifically, the gauge user left the gauge unattended while he moved around to the rear of an asphalt roller. During the time period that the gauge was left unattended, the gauge was damaged when it was run over by the asphalt roller.
This is a Severity Level III violation (Supplement VI)

The NRC has concluded that information regarding the reason for the violations, and the corrective actions taken and planned to correct the violations and prevent recurrence are already adequately addressed on the docket in your January 21, 2003 letter, as well as the NRC letter transmitting this Notice. Therefore, no response to this Notice is required. 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, EA 03-001" 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.

If you choose to respond, your response will be placed in the NRC Public Document Room (PDR). Therefore, to the extent possible, the response should not include any personal privacy or proprietary information so that it can be placed in the PDR without redaction. ADAMS is accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library).

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

Dated this 28th day of January 2003

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