United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-04-002 - G. A. Covey Engineering

March 11, 2004

EA-04-002

Gary Covey
President
G. A. Covey Engineering
P.O. Box 185
1025 Old Woman Run
Sutton, WV 26601-0185

SUBJECT:    NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $3,000
(NRC Inspection Report No. 47-25161-01/2003-001 and OI Investigation No. 2-2003-050)

Dear Mr. Covey:

This refers to the NRC inspection conducted on July 31, 2003, at your facility located in Sutton, West Virginia, to examine activities conducted under your license. During the NRC inspection, one apparent violation was identified involving the failure to secure or maintain constant surveillance of two moisture density gauges against unauthorized removal. In addition, an investigation was performed by the NRC's Office of Investigations (OI) to determine if employees of G. A. Covey Engineering deliberately failed to properly secure and control nuclear materials. In a letter dated January 9, 2004, we transmitted the results of the inspection and investigation, and stated that the investigation did not substantiate that the violation was deliberate.

Our January 9, 2004 letter also provided you the opportunity to either respond to the apparent violation in writing or to attend a predecisional enforcement conference. In a telephone conversation on January 14, 2004, you told Mr. John Pelchat of the NRC Region I staff, that G. A. Covey Engineering declined the opportunity to attend a conference but you stated that you would provide a written response. In the response, dated January 23, 2004, you described the corrective actions taken to prevent recurrence of the violation. In addition, that letter referenced a written response previously provided to the NRC in a letter dated August 1, 2003.

Based on the information developed during the inspection and investigation, and the information provided by you in your January 23, 2004 and August 1, 2003 letters, the NRC has determined that one violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and the circumstances surrounding it are described in detail in the subject inspection and investigation reports. The violation involved the failure to maintain control of two CPN portable moisture density gauges (each containing radioactive sources with approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241). The violation occurred when a gauge user left the gauges in an unlocked room at your facility in Sutton, West Virginia on July 31, 2003. Although the sources within the gauges were in the shielded condition at the time they were left unattended and unsecured, this violation is of significant concern to the NRC because (1) the failure to control radioactive material could have resulted in the theft of the gauges or unauthorized access to the areas where the gauges were stored; and (2) such sources can result in substantial unintended radiation dose to an individual if the source is removed from the shielded 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 been the subject of an escalated enforcement action within the last two years(1), 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 for identification is not warranted because the violation was identified by the inspector during an NRC inspection. 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 locking the door to the storage area; (2) re-instructing all gauge users regarding compliance with all NRC requirements, including the importance of securing the gauges in a locked storage location when not in use; (3) implementing a policy to keep the keys to the storage room in a locked key box; (4) implementing a policy to perform walk-through inspections at various times of the day to ensure that the door to the storage area is locked; and (5) implementing periodic reviews for all employees, with more formal training for frequent gauge users.

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 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.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you may reference your previous correspondence that is applicable to this case to avoid repetitive submissions. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and 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 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. 03032441
License No. 47-25161-01

Enclosures:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. NUREG/BR-0254 Payment Methods (Licensee only)

cc w/encl:
State of West Virginia


ENCLOSURE

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

G. A. Covey Engineering
Sutton, West Virginia
  Docket No. 03032441
License No. 47-25161-01
EA-04-002

During an NRC inspection conducted on July 31, 2003, as well as a subsequent investigation by the NRC Office of Investigation completed on December 12, 2003, 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 NRC proposes 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 violation and associated civil penalty are set forth below:

10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. 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 July 31, 2003, the licensee did not limit access to two CPN portable moisture density gauges (each containing approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241) located at a facility in Sutton, West Virginia, which is an controlled area, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, on that date, the gauges were found in the unlocked storage room and no licensee personnel were in the area to maintain constant surveillance of the gauges.
This is a Severity Level III violation (Supplement VI)
Civil Penalty - $3,000

Pursuant to the provisions of 10 CFR 2.201, G. A. Covey Engineering (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation, EA-04-002" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. Your response may reference or include previously docketed correspondence, if the correspondence adequately addresses the required response. If an adequate reply is not received within the time specified in this Notice, an Order or a Demand for Information may be issued as to why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown.

Within the same time as provided for the response required above under 10 CFR 2.201, 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, 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, EA-04-002" and may: (1) deny 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 response 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: F. 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 I.

Because 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 or proprietary 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 2.390(b) to support a request for withholding confidential commercial or financial information).

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

Dated this 11th day of March 2004.


1. A Notice of Violation was issued on March 31, 2003 (EA-03-046), for a Severity Level III problem involving the failure to lock the outer container on a portable gauge in storage.

 

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