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EA-03-019 - American Geotech, Inc.

April 7, 2003

EA-03-019

American Geotech, Inc.
ATTN: Kanti Patel
President
601 Ohio Avenue
Charleston, WV 25302

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $3,000
(NRC INSPECTION REPORT NO. 47-25354-01/02-01 AND OFFICE OF INVESTIGATIONS REPORT NO. 2-2002-033)

Dear Mr. Patel:

This is in reference to an investigation completed by the Nuclear Regulatory Commission's (NRC) Office of Investigations (OI) on October 28, 2002. The OI investigation was conducted as a follow-up to an inspection documented in NRC Inspection Report No. 47-25354-01/02-01, which was issued on October 10, 2002. The purpose of the OI investigation and inspection was to determine the facts and circumstances surrounding an August 28, 2002, event involving a gauge that was damaged by a dump truck. The results of the OI investigation and inspection, and the identification of two apparent violations, were provided to you by NRC letter dated February 27, 2003. This letter also provided American Geotech, Inc. (AGI) 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 March 10, 2003, 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 March 10, 2003, response, the NRC has determined that 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 violations cited in Part I of the Notice involved: (1) the failure to issue National Voluntary Laboratory Accreditation Program (NVLAP) approved dosimetry to an individual who used licensed materials from July 23, 2002 to August 28, 2002; and (2) the failure to ensure that licensed material is used by or under the supervision and in the physical presence of individuals named on the license, or by individuals who have successfully completed the manufacturer's training program for gauge users, have received copies of, and training in, the licensee's operating and emergency procedures, and have been designated by the Radiation Safety Officer. No actual radiological consequences occurred as a result of the violations cited in Part 1 of the Notice. In addition, the potential consequences were low because of the limited scope of your company's program (i.e., portable gauges), the low doses received by other monitored employees, and the low likelihood that exposures would exceed regulatory limits. The NRC has concluded that the violations in Part I of the Notice were caused by the willful actions of the President and the Radiation Safety Officer (RSO) of AGI. Given their low safety significance, the violations cited in Part I of the Notice normally would 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, In accordance with the Enforcement Policy, licensees are held directly responsible for the acts of their employees, and for the consequences of their acts. Violations of a willful 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. The fact that the violations were caused by the willful acts of the President and the RSO of AGI only magnifies the significance of the violations. Based on this and in accordance with the Enforcement Policy, the NRC has concluded that the violations cited in Part I of the Notice should be characterized as a Severity Level III problem.

In the response of March 10, 2003, AGI did not contest the violations, and stated that they were the result of bad decision making on the part of management who allowed the technician to use licensed material for a short period of time prior to his completion of the manufacturer's training. AGI indicated that this was done to determine whether the technician would stay with the company before it expended resources to train and certify the technician.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III violation or problem. Because the violations were willful, 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 the violations were 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 March 10, 2003, and in AGI's letter of October 16, 2002, your corrective actions for the violations included a change in policy to decline work if the company does not have properly trained and certified personnel, and the completion of training for the technician involved. 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 problem. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Four additional violations (Violation II.A-D) were identified and are cited in the enclosed Notice, involving the failure to adhere to the requirements of 49 CFR Part 172. 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.

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 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. 030-34079
License No. 47-25354-01

Enclosure: Notice of Violation and Proposed Imposition Of Civil Penalty

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

American Geotech, Inc.
Charleston, WV

Docket No. 030-34079
License No. 47-25354-01
EA-03-019

During a Nuclear Regulatory Commission (NRC) inspection completed on October 10, 2002, and an investigation completed by the NRC's Office of Investigations (OI) on 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 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:

I.	Violation Assessed a Civil Penalty
	A.	License Condition 21 of NRC License No. 47-25354-01 requires, in part, that the licensee conduct its program in accordance with the statements, representations, and procedures contained in the license application dated January 23, 2001. Item 10 of the licensee's license application dated January 23, 2001, states, "we will provide dosimetry processed and evaluated by a NVLAP approved processor that is exchanged at a frequency recommended by the processor." Contrary to the above, from July 23 to August 28, 2002, the licensee failed to issue NVLAP approved dosimetry to all individuals who were occupationally exposed on a regular basis. Specifically, the licensee allowed an employee to use licensed materials beginning on July 23, 2002, and did not provide a NVLAP approved dosimeter for this individual until after August 28, 2002.
	B.	License Condition 11.A. of NRC License No. 47-25354-01 requires, in part, that licensed material only be used by, or under the supervision and in the physical presence of, Joe Francis or Kanti Patel, or individuals who have successfully completed the manufacturer's training program for gauge users, have received copies of, and training in, the licensee's operating and emergency procedures, and have been designated by the Radiation Safety Officer. Contrary to the above, from July 23 to August 28, 2002, the licensee failed to ensure that licensed material was used by, or under the supervision and in the physical presence of, Joe Francis or Kanti Patel, or individuals who had successfully completed the manufacturer's training program for gauge users, had received copies of, and training in, the licensee's operating and emergency procedures, and had been designated by the Radiation Safety Officer. Specifically, from July 23 to August 28, 2002, the licensee allowed an employee to use licensed materials without being under the supervision and in the physical presence of the individuals named on the license, and who had not successfully completed the manufacturer's training program for gauge users. This is a Severity Level III problem (Supplement VI). Civil Penalty - $3,000
II.	Violations Not Assessed a Civil Penalty 10 CFR 71.5(a) requires that each 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 DOT regulations in 49 CFR parts 170 through 189, appropriate to the mode of transport.
	A.	49 CFR 172.301(a) requires, in part, that each person who offers for transportation a hazardous material in a non-bulk packaging shall mark the package with the proper shipping name and identification number. Pursuant to 49 CFR 172.101, radioactive material is a hazardous material. Contrary to the above, on three separate occasions between July 9, 2002 and September 9, 2002, the licensee transported licensed materials on public highways in packages that were not marked with the proper shipping name and identification number.
	This is a Severity Level IV violation (Supplement V).
	B.	49 CFR 172.304(a)(1) requires, in part, that the marking required in subpart 49 CFR 172 must be durable. Contrary to the above, on September 5, 2002, the licensee transported licensed materials on public highways in packages that were not marked with a durable marking. Specifically, the licensee transported a Troxler Model 3430 gauge (s/n 21194) in a package that was marked with a proper shipping name that was in poor condition, in that it was illegible and not durable.
	This is a Severity Level IV violation (Supplement V).
	C.	49 CFR 172.403(f) requires, in part, that each package required to be labeled with a RADIOACTIVE label, per 49 CFR 172.403(a) must have two of these labels affixed to opposite sides of the package. Contrary to the above, on July 9, 2002 and September 7, 2002, the licensee transported licensed materials on public highways in packages that were not labeled with two RADIOACTIVE labels on opposite sides of the package.
	This is a Severity Level IV violation (Supplement V).
	D.	49 CFR 172.403(g) requires, in part, that the name of the radionuclides, the activity, and the transport index be entered in the blank spaces on the RADIOACTIVE label by legible printing using a durable weather resistant means of marking. Contrary to the above, on three occasions between June 5 and September 9, 2002, the licensee transported licensed materials on public highways in packages that did not include the name of the radionuclides, the activity, and the transport index in the blank spaces on the RADIOACTIVE label.
	This is a Severity Level IV violation (Supplement V).

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. 47-25354-01/02-01, in your response of October 16, 2002, March 10, 2003, 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, D.C. 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 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 7^th day of April 2003

Enclosure 1

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