United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-04-007 - Enviro-Test Laboratories LLC

February 13, 2004

EA-04-007

Enviro-Test Laboratories LLC
ATTN: Mark E. Macy
Macy Law Office, P.C.
217 West 18th Street
Cheyenne, Wyoming 82001

SUBJECT: NOTICE OF VIOLATION AND TERMINATION OF LICENSE 49-21194-01
(NRC Inspection Report 030-19913/2003-001)

Dear Mr. Macy:

This letter refers to Enviro-Test Laboratories' decommissioning plan dated October 1, 2002, as supplemented by letters dated June 2 and July 18, 2003, the NRC Form 314, "Certificate of Disposition of Materials," dated January 31, 2003, and NRC Inspection Report 030-19913/2003-001 dated September 24, 2003. Enviro-Test Laboratories has requested termination of its Materials License 49-21194-01. The NRC has reviewed the decommissioning plan, conducted two confirmatory surveys, published an Environmental Assessment in the Federal Register, and developed a Safety Evaluation Report. In summary, the NRC has determined that the facility in Casper, Wyoming, can be released for unrestricted use and the license terminated. However, a number of compliance issues were identified during the review of the decommissioning plan and during the conduct of the confirmatory surveys. These compliance issues are addressed in this letter. Details of this letter were provided to Erv Callin, Environmental Services Director, Enviro-Test Laboratories of Edmonton, Alberta, by Robert J. Evans, Senior Health Physicist, of our staff during a telephonic briefing conducted on January 12, 2004.

It is our understanding that Enviro-Test Laboratories suspended operations during July 2002 and immediately commenced with decommissioning of its facility. The licensee subsequently submitted a decommissioning plan to the NRC on October 1, 2002. The decommissioning plan included final radiological status survey information. The Casper, Wyoming, facility was vacated during October 2002. Although the facility was routinely locked when unoccupied, members of the public occasionally accessed the facility. For example, a public auction was held during February 2003 which allowed members of the public to have unrestricted access to the laboratory facility.

The NRC elected to conduct a confirmatory survey during June 2003, prior to approval of the decommissioning plan. The confirmatory survey determined that residual radioactive contamination was still present at the facility. Additional remediation was conducted by the licensee during July 2003 in response to the NRC's inspection findings. A second confirmatory survey was subsequently conducted during August 2003. The second confirmatory survey verified that the licensee had performed additional remediation of the facility. The results of the two confirmatory surveys were published in the NRC inspection report referenced in this letter.

Based on our review of the decommissioning plan and the results of our confirmatory inspection, the NRC has determined that three violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice), and are described in detail below.

First, a violation of 10 CFR 30.36(g)(1) and 30.36(g)(3) occurred when Enviro-Test Laboratories commenced with decommissioning without prior NRC approval of the decommissioning plan. The reclamation activities included demolition and removal of potentially contaminated equipment such as sinks, counter-tops, and ventilation ducts. These types of activities were not routinely conducted during normal laboratory operations; therefore, a decommissioning plan was required by §30.36(g)(1) and prior approval of that plan was required by §30.36(g)(3).

Second, a violation of 10 CFR 20.1802 occurred when Enviro-Test Laboratories failed to maintain security and control of licensable quantities of radioactive material. The first confirmatory survey, conducted after the February 2003 public auction, identified residual thorium-230 in the facility in quantities that required additional remediation. The amount of thorium-230 material recovered was estimated to be in excess of 1000 times the amount listed in Appendix C to 10 CFR Part 20.

A third violation involved submittal of incomplete and inaccurate information to the NRC. Regulation 10 CFR 30.9(a) requires, in part, that information provided to the Commission be complete and accurate in all material respects. On January 31, 2003, Enviro-Test Laboratories submitted a signed NRC Form 314, "Certificate of Disposition of Materials," to the NRC that certified the disposal of all licensed radioactive material. This information was inaccurate because during the first NRC confirmatory survey, conducted during June 2003, residual thorium-230 contamination was identified in the former soil preparation room and a sealed radioactive source containing europium-154 and antimony-125 was identified in the former radiochemical laboratory. The information was material because it was relevant as to whether this facility had been adequately decommissioned in accordance with NRC requirements. When notified that the information relevant to decommissioning was incomplete and inaccurate, Enviro-Test Laboratories provided supplemental information which was sufficient for decommissioning purposes.

The NRC places importance on licensees carrying out decommissioning activities in accordance with all NRC requirements in order to assure that facilities used to process NRC-licensed materials may be released for unrestricted use and the public health and safety maintained. In addition, the NRC considers it very important that licensees provide complete and accurate information to the NRC regarding decommissioning activities so that the NRC can carry out its responsibilities to assure public health and safety. In that the violations discussed above are closely related, they have been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III problem. The current Enforcement Policy is included on the NRC's Web site at www.nrc.gov; select What We Do, Enforcement, then Enforcement Policy.

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 Enviro-Test Laboratories has not been the subject of escalated enforcement actions within the last 2 years or two inspections, the NRC considered whether credit is warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. The NRC determined that Enviro-Test Laboratories is deserving of credit for its corrective actions. In particular, Enviro-Test Laboratories has responded to all formal and informal requests for information, and has remediated its facility to the point where it can be released for unrestricted use. Giving Enviro-Test Laboratories credit for its corrective actions results in the assessment of no civil penalty for these violations.

Therefore, to recognize your comprehensive correction of the violations and in recognition of the absence of previous escalated enforcement action, I have been authorized, after consultation with the NRC's Office of Enforcement, not to propose a civil penalty in this case. Further, the NRC has concluded that since the facility has been cleared for unrestricted use and the license is being terminated, Enviro-Test Laboratories is not required to respond to the Notice. However, should Enviro-Test Laboratories become involved in NRC-licensed activities in the future, you may be required to provide the NRC additional information to provide the NRC reasonable assurance that you will abide by these requirements in the future.

Two Unresolved Items were documented in NRC Inspection Report 030-19913/2003-01. The first Unresolved Item questioned whether the facility met the decommissioning requirements specified in 10 CFR 30.36 and 10 CFR Part 20, Subpart E, while the second Unresolved Item questioned whether the licensee properly certified the disposal of licensed radioactive material. Since the NRC has elected to cite Enviro-Test Laboratories for violations of 10 CFR 30.36 and 10 CFR 30.9, the NRC is closing these two Unresolved Items.

The NRC issued Confirmatory Action Letter (CAL) 4-03-004 to Enviro-Test Laboratories on September 4, 2003, based on the preliminary review of the decommissioning plan and first confirmatory inspection findings. Enviro-Test Laboratories responded to the CAL by letter dated October 1, 2003. One of the actions stipulated in the CAL was that Enviro-Test Laboratories control access to the facility until the NRC had determined that the facility could be free released for unrestricted use. As documented in the enclosed Safety Evaluation Report, the NRC concludes that Enviro-Test Laboratories has adequately demonstrated compliance with the radiological criteria for unrestricted release as allowed by 10 CFR 20.1402 for the laboratory facility located in Casper, Wyoming. Accordingly, the site is released by the NRC for unrestricted use. In addition, Enviro-Test Laboratories is hereby released from all restrictions previously imposed by CAL 4-03-004.

Although the facility was normally locked when unoccupied, the NRC is aware that the facility was occasionally made available to members of the public between October 2002 and September 2003. As noted earlier, a public auction was held at the facility during February 2003, prior to the performance of the first NRC confirmatory survey. While the NRC was unable to conduct its confirmatory survey prior to the facility being opened to members of the public for the auction, the licensee performed surveys which confirmed that contamination levels in the facility and on equipment were below its release criteria before vacating the property. The NRC believes these surveys were adequate to demonstrate that there were not significant exposures to any member of the public who may have had access to the facility.

By facsimile dated January 31, 2003, the licensee submitted an NRC Form 314, "Certificate of Disposition of Materials," to the NRC. Based on the results of the two confirmatory surveys, the licensee's disposal and transfer records, and validation of the licensee's dose modeling, the NRC has determined that the licensee has sufficiently demonstrated that all radioactive material has been disposed and the site meets the radiological criteria for license termination. Details of the NRC's evaluation are provided in the enclosed Safety Evaluation Report. Therefore, NRC Materials License 49-21194-01 is hereby terminated as requested by the licensee.

In conjunction with the termination of NRC Materials License 49-21194-01, we are returning Surety Bond F11023 to you for disposition. This decommissioning financial assurance document is no longer required. This letter authorizes the termination of Surety Bond F11023.

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 any) will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html. 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.

Should you have any questions concerning this letter, please contact Mr. Robert J. Evans, Senior Health Physicist, at (817) 860-8234 or Jack E. Whitten, Chief, Nuclear Materials Licensing Branch, at (817) 860-8197.

Sincerely,

/RA/

Bruce S. Mallett
Regional Administrator

Enclosures:
1. Notice of Violation
2. Amendment 7 to NRC Materials License 49-21194-01
3. Safety Evaluation Report
4. Surety Bond F11023 issued January 8, 2001

Control No.: 469311
Docket No.: 030-19913
License No.: 49-21194-01

cc w/enclosures:

Mr. Erv Callin
Director, Environmental Services
Enviro-Test Laboratories
9936 67th Ave
Edmonton, AB T6EOP5

Mr. David Demorest
Technical Director/Consultant
Enviro-Test Laboratories
2101 Vale Place
Casper, Wyoming 82604

James R. Bell
Murane & Bostwick, LLC
201 North Wolcott
Casper, WY 82601

Wyoming Radiation Control Program Director


ENCLOSURE 1

NOTICE OF VIOLATION

Enviro-Test Laboratories LLC
Casper, Wyoming
Docket No. 030-19913
License No. 49-21194-01
EA-04-007

During an NRC inspection conducted on June 17-18 and August 5, 2003, three 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 30.36(g)(1) states that a decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the Commission and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:

(1)   Procedures would involve techniques not applied routinely during cleanup or maintenance operations;
(2)   Workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;
(3)   Procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or
(4)   Procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.

In addition, 10 CFR 30.36(g)(3) states that procedures such as those listed in paragraph (g)(1) of this section with potential health and safety impacts may not be carried out prior to approval of the decommissioning plan.

Contrary to the above, during July-October 2002, Enviro-Test Laboratories conducted non-routine decommissioning activities without prior approval of a decommissioning plan by the NRC. The decommissioning plan was submitted on October 1, 2002, after the completion of most decommissioning activities. The activities included demolition and removal of potentially contaminated equipment such as sinks, counter-tops, and ventilation ducts. These types of activities were not routinely conducted during ordinary laboratory operations; therefore, a decommissioning plan was required to be submitted by §30.36(g)(1) and prior approval of that plan was required by §30.36(g)(3).

B.   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, between October 2002 and July 2003, the licensee did not secure from unauthorized removal or limit access to thorium-230 material located in the former soil preparation room, nor did the licensee control and maintain constant surveillance of this material. The amount of thorium-230 material recovered during July 2003 was estimated to be in excess of 1000 times the amount listed in Appendix C to 10 CFR Part 20.

C.   10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee be complete and accurate in all material respects.

Contrary to the above, the licensee did not provide to the Commission information that was complete and accurate in all material respects. Specifically, on January 31, 2003, the licensee submitted a signed NRC Form 314, "Certificate of Disposition of Materials," to the NRC that was not complete and accurate in all material respects. The licensee certified the disposal of all licensed radioactive material. This information was inaccurate because during an NRC confirmatory survey, residual thorium-230 contamination was identified in the former soil preparation room and a sealed radioactive source containing europium-154 and antimony-125 was identified in the former radiochemical laboratory. This information was material because it was relevant as to whether the facility had been decommissioned in accordance with NRC requirements.

These violations represent a Severity Level III problem (Supplements IV & VII).

The NRC has concluded that Enviro-Test Laboratories is not required to respond to this Notice of Violation because its facility is being released for unrestricted use and its NRC license is being terminated in the letter transmitting this Notice.

If the licensee chooses to respond, clearly mark the 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 20555-0001 with a copy to the Regional Administrator, Region IV, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). If Enviro-Test Laboratories contests this enforcement action, it should also provide a copy of its response, with the basis for its denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

If the licensee chooses to respond, its response will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html. 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.

Dated this 13th day of February 2004

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