EA-03-005 - Roof Consultant Services

April 17, 2003

EA-03-005

R. David Knigge
Roof Consultant Services
5611 Ben Hogan Drive
Harlingen, TX 78552-8903

SUBJECT:

NOTICE OF VIOLATION AND TERMINATION OF LICENSE 24-26009-01

Dear Mr. Knigge:

Roof Consultant Services is the holder of suspended Byproduct Material License Number 24-26009-01 that was originally issued by the Nuclear Regulatory Commission (NRC) pursuant to 10 CFR Part 30 on March 16, 1989. The license authorized the possession and use of americium-241 sealed sources in surface moisture/density gauges at temporary job sites. An Order Suspending License, dated September 30, 1997, was issued to Roof Consultant Services for nonpayment of annual fees for Fiscal Years 1996 and 1997. The Order suspended the license with respect to receipt and use of licensed material, but the license remained in effect with respect to possession, transfer and storage of licensed material. The Order further required Roof Consultant Services to dispose of any licensed material in its possession and decommission its facility in accordance with 10 CFR 30.36, "Expiration and Termination of Licenses and Decommissioning of Sites and Separate Buildings or Outdoor Areas." This regulation requires, in part, that decommissioning (including disposal of the licensed material) be completed within 24 months after initiation. Because the Order required that decommissioning be initiated on the effective date of the Order (i.e., September 30, 1997); decommissioning was required to be completed by September 30, 1999.

An inspection was conducted at your facility on November 20, 1997, to determine whether you were in compliance with the terms of the Order including: restricting activity involving the licensed material to safe secure storage or transfer of the material; controlling entry to restricted areas; and disposing of any licensed material. As a result of the inspection the NRC concluded that, as of the date of the inspection, you were complying with the Order.

In a March 1, 1998, letter, you requested an extension of time to complete decommissioning activities. During a telephone conversation on October 5, 1998, Monte Phillips and Andrea Kock of my staff informed you that the NRC would grant an extension of time for you to complete decommissioning to September 2000, or alternately you could pay the fees owed and obtain a new license. You indicted that you would contact the NRC's License Fee and Accounts Receivable Branch requesting that payment arrangements be made or you would transfer the licensed material to an authorized recipient if you were unable to pay the fees. You also indicated that you planned to make the arrangements within 30 days of that conversation. At that time, you possessed one Troxler Model 3216 portable surface moisture/density gauge containing a nominal 50 millicurie americium-241 sealed source.

On January 19, 2002, the NRC attempted to conduct an inspection of Roof Consultant Services at the address listed on the license, but determined that Roof Consultant Services was no longer at that location. Subsequently, the NRC attempted to locate the present whereabouts of Roof Consultant Services, you, or other members of the company. In October 2002, the NRC determined that you had relocated to Texas. However, the NRC was not able to identify if Roof Consultant Services was in business at that time, nor was the NRC able to locate any other members of the company.

On October 22, 2002, Mr. Robert Gattone of my staff contacted you by telephone and discussed the status of your compliance with the September 30, 1997, Order. During the conversation you indicated that about three and one half years ago you moved Roof Consultant Services' licensed material (the Troxler Model 3216 gauge) from the storage location authorized on its license to your residence in O'Fallon, Missouri, and then in July 2000 you moved the gauge to your current residence in Texas. You also informed Mr. Gattone that the gauge was being stored in your locked garage, in its locked transportation case. In a subsequent telephone conversation on October 28, 2002, Mr. Gattone informed you that Roof Consultant Services was in apparent violation of the Order because you had not disposed of all your licensed material. Mr. Gattone also informed you that you were in apparent violation of Condition 10 of Roof Consultant Services' license because you were storing the gauge at a location that was not authorized by the license. You also had not paid the fees owed, and had not obtained a new license from the NRC to use or store the material at another location.

After learning that the gauge was stored in the State of Texas, an Agreement State, the NRC contacted the State Bureau of Regulatory Control (BRC) and questioned if the State had issued you a license to possess the material. The BRC had no record of a license issued to Roof Consultant Services or to you, and had not received an application for a license from you for the gauge. The State of Texas subsequently contacted you, and informed you that you either needed to obtain a license from the State or make arrangements to transfer the material to an authorized recipient by November 25, 2002. The BRC informed the NRC that it had confiscated the gauge on December 16, 2002, because you continued to possess the gauge, and had not applied for a license from the State nor made arrangements to transfer the gauge to an authorized recipient.

During a telephone conversation on January 24, 2003, between you and Jamnes Cameron of my staff, Mr. Cameron informed you that the NRC was considering escalated enforcement for the apparent violations involving the failure to dispose of radioactive material in your possession in accordance with the Order and to store licensed material only at the location listed on the license. Mr. Cameron also informed you that we believed we had sufficient information regarding the apparent violations to make an enforcement decision without the need for a predecisional enforcement conference or a written response from you. You indicated that you did not desire to have a predecisional enforcement conference or to provide a written response.

Based on the above information, the NRC has determined that willful violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described above.

Willful violations of NRC requirements are a significant regulatory concern because the conduct of licensed activities in accordance with the Commission's requirements depends largely on the integrity of individuals conducting NRC-licensed activities. Your continued possession of licensed material in violation of your license and the September 30, 1997, Order despite the notifications made to you, is particularly serious. However, you kept the gauge intact, stored it in your locked garage and kept it locked within its transportation container. Therefore, these violations are categorized collectively in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III problem. Because the violations are considered 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. Credit is not warranted for identification since the violations were NRC identified. Credit is not warranted for corrective actions since you did not transfer or dispose of the licensed material in your possession as required by the Order, and you stored the material at a location not authorized on the license until it was confiscated by the State of Texas. However, the NRC has decided to exercise discretion in accordance with Section VII.B.6 of the Enforcement Policy and not issue a civil penalty in this case. The NRC is not issuing a civil penalty since Roof Consultant Services no longer possesses licensed material. Therefore, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case.

Pursuant to the September 30, 1997, Order, the license will be terminated upon satisfaction of the requirements of 10 CFR 30.36. NRC considers the requirements of 10 CFR 30.36 to have been met when the State of Texas confiscated the licensed material in Roof Consultant Services' possession. Therefore, enclosed is Amendment Number 2 to NRC License Number 24-26009-01 terminating the license issued to Roof Consultant Services.

You are not required to respond to this letter unless the description herein does not accurately reflect your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice. However, you are advised that should you become involved in NRC-licensed activities in the future, you may be required to address the issues in the enclosed Notice in order to provide the NRC with reasonable assurance that you will comply with NRC requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter with your home address redacted, its enclosure, and your response, if you choose to provide one, will be made available electronically in 30 days for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which is accessible from the NRC Web site at the Public NRC Library. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/ James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 030-30983
License No. 24-26009-01

Enclosure: Notice of Violation

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NOTICE OF VIOLATION

Roof Consultant Services Bridgeton, Missouri

Docket No. 030-30983 License No. 24-26009-01 EA-03-005

Based on a review of communications between the NRC and Roof Consultant Services during the period September 30, 1997, and October 28, 2002, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A.

10 CFR 30.34 requires, in part, that each license issued pursuant to the regulations in this part be subject to all valid rules, regulations and orders of the Commission. Item III.C of the Order Suspending License No. 24-26009-01, issued on September 30, 1997, requires that the licensee dispose of any licensed nuclear material, acquired or possessed under the authority of License No. 24-26009-01, and take all actions required by 10 CFR 30.36 10 CFR 30.36(h) requires, in part, that the licensee complete decommissioning of the site or separate building or outdoor area as soon as practicable but no later than 24 months following the initiation of decommissioning, unless the NRC has approved an alternative decommissioning schedule. Contrary to the above, the licensee failed to complete decommissioning of its site by September 30, 2000; the date required by the NRC approved alternative decommissioning schedule.

B.

License Condition 10 of License No. 24-26009-01 requires, in part, that licensed material may be stored at the licensee's facilities located at 13761 St. Charles Rock Road, Suite 112, Bridgeton, Missouri. Contrary to the above, as of April 1999 the licensee did not confine its storage of byproduct material to 13761 St. Charles Rock Road, Suite 112, Bridgeton, Missouri. Specifically, between April 1999 and July 2000, the licensee stored byproduct material at a residence in O'Fallon, Missouri.

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

You are not required to respond to this letter. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description in the letter transmitting this Notice of Violation (Notice) does not accurately reflect your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to a Notice of Violation, EA-03-005" 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, Suite 255, 801 Warrenville Road, Lisle, IL 60532-4351 within 30 days of the date of the letter transmitting this 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, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

If you choose to respond, your response will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which 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 17th day of April 2003.