United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-04-088 - Dressler Consulting Engineers, Inc.

July 16, 2004

EA-04-088

Mr. Don Dressler, President
Dressler Consulting Engineers, Inc.
4425 Indian Creek Parkway
Overland Park, Kansas 66207-0450

SUBJECT: NOTICE OF VIOLATION (NRC INSPECTION REPORT 150-00015/04-001)

Dear Mr. Dressler:

This refers to your May 24, 2004, letter in which you responded to NRC's April 28, 2004, letter and inspection report regarding an apparent violation of NRC requirements. The apparent violation involved Dressler Consulting Engineers, Inc.'s failure to follow the reciprocity requirements of 10 CFR 150.20 prior to using your Kansas radioactive materials license to perform licensed work in Missouri, a state where NRC has jurisdiction.

Dressler notified the NRC on April 5, 2004, that work was performed in NRC jurisdiction under its Kansas license (22-B837), without filing NRC Form 241, "Report of Proposed Activities in Non-Agreement States." Specifically, Dressler used licensed material during calendar year 2004 in the state of Missouri, a non-Agreement State, without filing NRC Form 241 with the Regional Administrator, NRC Region IV, as required by 10 CFR 150.20. Dressler took prompt corrective action by filing an NRC Form 241 and submitting a check for the required fee.

The circumstances regarding this apparent violation were discussed with you during a telephonic exit briefing on April 27, 2004. We informed you at that time that NRC was considering escalated enforcement action, but that before the NRC made a final enforcement decision, Dressler could address the apparent violation by requesting a predecisional enforcement conference or by providing a written response. You filed a written response.

In your May 24, 2004 letter, you described the circumstances that led to this violation, including the fact that Dressler had failed to recognize that NRC reciprocity expires at the end of the calendar year. You also described the corrective action that you had taken to prevent a recurrence of this violation, indicating that Dressler had created redundant systems to remind you to renew reciprocity at the end of each year.

In your letter, you stated that NRC does not send out reminder notices. Actually, NRC does send out letters prior to the end of each calendar year reminding licensees that have filed for reciprocity that they must do so again for the upcoming calendar year if they intend to work in NRC jurisdiction. We are unable to verify that such a letter was in fact sent to Dressler in 2003. However, we note that it is your responsibility to comply with NRC's reciprocity requirements, whether or not you receive a reminder from the NRC. In addition, in accordance with 10 CFR 150.20(b)(4), we remind you that reciprocity is limited to 180 days per calendar year in non-Agreement States.

Based on our review of the information that you provided, the NRC has determined that a violation of NRC requirements occurred. This violation is cited in the enclosed Notice of Violation (Notice). We conclude that the violation was inadvertent, in that Dressler assumed that reciprocity continued for 12 months from the date you filed NRC Form 241. Nonetheless, failing to file an NRC Form 241 impacts the NRC's regulatory process by preventing the NRC from conducting inspections to assure that licensed material is being used safely and in accordance with NRC requirements. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty with a base value of $3,000 is considered for a Severity Level III violation. Because your facility has not been the subject of NRC escalated enforcement action within the last 2 years, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Based on your prompt action to restore compliance and the actions that you have taken to prevent a recurrence, credit for corrective actions is warranted. This results in no civil penalty being assessed.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action, that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the actions taken to correct the violation and prevent recurrence, and the date when full compliance was achieved are already adequately addressed on the docket in this letter and your May 24, 2004, letter. Therefore, you are not required to respond to this letter unless it does not accurately reflect your corrective actions or your position on the violation. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter and its enclosure 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, any response that you choose to submit should not include any personal privacy or proprietary information so that it can be made available to the Public without redaction. The NRC also includes significant enforcement actions on its Web site at www.nrc.gov; select What We Do, Enforcement, then Significant Enforcement Actions.

Please contact Gary Sanborn at (817)860-8222 if you have any questions about this matter.

Sincerely,

/RA/

Bruce S. Mallett
Regional Administrator

Docket No. 150-00015
Kansas License No. 22-B837

Enclosure: Notice of Violation

cc w/Enclosure:
Kansas Radiation Control Program Director
Missouri Radiation Control Program Director


NOTICE OF VIOLATION



Dressler Consulting Engineers, Inc.
Overland Park, Kansas
Docket No. 150-00015
Kansas License No. 22-B837
EA-04-088

Based on NRC review of an April 5, 2004 notification from the licensee, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

10 CFR 30.3 states, in part, that except for persons exempt as provided in this part and Part 150 of this chapter, no person shall use byproduct material except as authorized in a specific or general license issued pursuant to the regulations in this chapter.
10 CFR 150.20(a)(1) states, in part, that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in non-Agreement States provided that the provisions of 10 CFR 150.20(b) have been met.
10 CFR 150.20(b)(1) requires, in part, that any person engaging in activities in non-Agreement States shall, at least 3 days before engaging in each activity for the first time in a calendar year, file a submittal containing an NRC Form-241, "Report of Proposed Activities in Non-Agreement States," a copy of its Agreement State specific license, and the appropriate fee with the Regional Administrator for the Region in which the Agreement State that issued the license is located.
Contrary to the above, on various dates between January 1 and April 6, 2004, Dressler Consulting Engineers, Inc., a state of Kansas licensee, used byproduct material in Missouri, a non-Agreement State, and did not file the submittal required by 10 CFR 150.20(b)(1) with the Regional Administrator of the NRC Region IV office.
This is a Severity Level III violation (Supplement VI).

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in the letter transmitting this Notice of Violation and the letter from the licensee dated May 24, 2004. 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," include the EA number, 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 IV, within 30 days of the date of the letter transmitting this Notice of Violation (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, United States 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), 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 16th day of July 2004

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