EA-04-014 - Triad Engineering, Inc.

April 20, 2004

EA-04-014

Dennis C. Chambers, P.E.
Vice President
Triad Engineering, Inc.
219 Hartman Run Road
Morgantown, WV 26505

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $3,000 (NRC Office of Investigations Report No. 2-2003-064)

Dear Mr. Chambers:

The enclosed Notice of Violation (Notice) and Proposed Imposition of Civil Penalty is being issued to Triad Engineering, Inc. (Triad) based, in part, on willful violations of NRC requirements. Specifically, one of your technicians willfully left a portable nuclear gauge unattended, unsecured, and unlocked while at a West Virginia University job site on some undetermined date in late 2002. Two apparent violations were identified during an investigation conducted by the NRC Region II Office of Investigations (OI). The violations are cited in the enclosed Notice and the circumstances surrounding them are described in the factual summary of the subject investigation report sent to you on February 18, 2004. The violations involved the willful failure to maintain constant surveillance of a portable nuclear gauge and the willful failure to lock the portable gauge when not under the direct supervision of an authorized gauge user.

In the February 18, 2004 letter transmitting the factual summary of the OI investigation, the NRC provided you the opportunity to address the apparent violations identified in the report by either attending a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. In a telephone conversation on February 26, 2004, you informed Mr. Jose Diaz, of my staff, that Triad did not believe a predecisional enforcement conference was needed, but you would send a written response. In your response, dated March 7, 2004, you described the event, the circumstances that led to the violation, the root cause of the violation, and the corrective actions that you had taken to prevent recurrence of the violation. You also stated that the root cause for the violation was due to thoughtless, spontaneous behavior by the gauge user and was not an indication of malicious behavior.

Notwithstanding your response, the NRC has concluded that the gauge user willfully violated the regulations involving security of NRC-licensed radioactive material by walking away from the gauge. His actions were done in careless disregard of the requirements and therefore considered willful within the context of the NRC Enforcement Policy. In reaching this conclusion, the NRC considered the following: (1) the technician admitted to OI, during an interview on October 28, 2003, that he knew he should not leave the gauge unattended and unsecured based on his past training and experience, but he did not think about it when he left the area; and (2) the technician stated to OI that he did not think the failure to secure the gauge or to maintain direct surveillance of the gauge would be a problem because the gauge was in his truck and he only walked about 150 feet away from the truck for about a minute.

Willful violations are serious concerns because the NRC's regulatory program relies, in part, on the honesty and integrity of licensees and their employees. As such, willful violations cannot be tolerated. Therefore, notwithstanding the short duration of the violations, the violations are classified as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. In accordance with the current version of 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 in nature, 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 violations were identified by the NRC during an investigation of your facility. Credit for corrective actions is warranted because your corrective actions, after identification, were considered prompt and comprehensive. These actions included, but were not limited to: (1) taking disciplinary action against the technician who caused the violations; (2) conducting safety talks with all technicians to discuss the violations and stress the importance of maintaining constant surveillance and control of gauges; (3) sending a memorandum to the Radiation Safety Officers at other Triad offices regarding the violations; and (4) distributing memoranda to all authorized gauge users regarding operating and emergency procedures for gauges, requirements for maintaining constant surveillance and control of gauges, and the findings of the NRC's OI investigation.

Therefore, to emphasize the significance of willful violations of NRC 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 this Severity Level III problem. The civil penalty could have been higher; however, by crediting your corrective actions, the civil penalty remained at the base amount. 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 any 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 the Public NRC Library. The NRC also includes Issued Significant Enforcement Actions on its Web site.

Questions concerning this Notice may be addressed to Thomas Decker of my staff. Mr. Decker can be reached at telephone number (404) 562-4721.

		Sincerely,
		/RA James T. Wiggins ACTING FOR/
		Hubert J. Miller Regional Administrator

Docket No. 030-13255
License No. 47-17742-01

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

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ENCLOSURE

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Triad Engineering, Inc. Morgantown, WV

License No. 47-17742-01 Docket No. 030-13255 EA-04-014

During an investigation completed by the NRC Office of Investigations (OI) on December 8, 2003, the summary of which was issued on February 18, 2004, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), 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:

A.

10 CFR 20.1802 requires that the licensee shall control and maintain constant surveillance of licensed material that was in an unrestricted area and that was not in storage. Contrary to the above, on some undetermined date in late 2002, the licensee failed to control and maintain constant surveillance of licensed material that was in an unrestricted area and that was not in storage. Specifically, licensee personnel failed to control or maintain constant surveillance of a portable moisture density gauge containing approximately 50 millicuries of americium 241 at a temporary job site in Morgantown, West Virginia.

B.

License Condition 18 requires that each portable nuclear gauge shall have a lock or outer locked container designed to prevent unauthorized or accidental removal of the sealed source from its shielded position. The gauge or its container must be locked when in transport, storage or when not under the direct surveillance of an authorized user. Contrary to the above, on some undetermined date in late 2002, the licensee failed to lock a portable gauge or its container when not under the direct surveillance of an authorized user. Specifically, licensee personnel failed to lock the operating handle of a portable moisture density gauge containing approximately 50 millicuries of americium 241 at a temporary job site in Morgantown, West Virginia. The portable gauge was not under the direct surveillance of authorized licensee personnel present at the job site.

These violations represent a Severity Level III problem (Supplement VI).
Civil Penalty - $3,000

Pursuant to the provisions of 10 CFR 2.201, Triad Engineering, Inc. 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 04-014" 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 previous 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 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 04-014" 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 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 20th day of April 2004.