EA-05-023 - R&M Engieering Consultants

May 9, 2005

EA-05-023

Mr. James Wellman, President
R&M Engineering Consultants
510 Fourth Street
Fairbanks, Alaska 99701

SUBJECT:

CONFIRMATORY ORDER MODIFYING LICENSE (NRC INVESTIGATION REPORT 4-2004-028)

Dear Mr. Wellman:

The enclosed Confirmatory Order Modifying License (Order) is being issued to confirm your commitments to leak-test and transfer two NRC-licensed portable gauges to an authorized recipient, following which you will provide copies of documents demonstrating that the transfer has taken place and will request termination of your NRC license. These requirements are contained in Section IV of the enclosed Order.

The commitments that are contained in this Order were first discussed with you by telephone on February 8, 2005, and were described in writing in a February 25, 2005, letter to you. On March 30, 2005, we received a signed Consent Form in which you agreed to these commitments and agreed to waive your rights to a hearing on this Order.

Questions concerning this Confirmatory Order should be addressed to Ms. Maria Schwartz, Office of Enforcement, at 301-415-1888.

Pursuant to Section 223 of the Atomic Energy Act of 1954, as amended, any person who willfully violates, attempts to violate, or conspires to violate, any provision of this Order shall be subject to criminal prosecution as set forth in that section. Violation of this order may also subject the person to civil monetary penalty.

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), which is accessible from the NRC Web site at the Public NRC Library. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		Frank J. Congel, Director Office of Enforcement

Docket No. 030-33802
License No. 50-23220-02

Enclosure: Confirmatory Order Modifying License

---

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of R&M Engineering Consultants Fairbanks, Alaska	) ) ) )	Docket No. 030-33802 License No. 50-23220-02 EA-05-023

CONFIRMATORY ORDER MODIFYING LICENSE
(EFFECTIVE IMMEDIATELY)

I

R&M Engineering Consultants (R&M or Licensee) is the holder of NRC License No. 50-23220-02 issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30. The license authorizes the Licensee to possess portable nuclear density gauges containing sealed sources of byproduct material and maintain them in storage until termination of the license. The possession and storage-only license was originally issued March 24, 1995, was last modified on September 21, 1999, with an expiration date of February 28, 2005.

II

An inspection conducted by NRC Region IV in June 2004 identified an apparent failure on the part of R&M to leak-test two portable nuclear density gauges in accordance with the conditions of the license. License Condition 12.D. requires, in part, that no sealed source or detector cell shall be stored for a period of more than three (3) years without being tested for leakage and/or contamination. This requirement was proposed by R&M in information submitted to the NRC with the 1995 license amendment request to modify the license to possess and store byproduct material. In addition, the inspection identified an apparent failure on the part of R&M to provide accurate information to the NRC in accordance with the requirements of 10 CFR 30.9. Specifically, Mr. James Wellman, R&M's President, informed the NRC in a September 17, 2002, e-mail that he had performed leak tests of the gauges and had sent swabs to Radiation Detection Company in Sunnyvale, California for evaluation. The inspection found no evidence that R&M's portable nuclear gauges had been leak-tested since the possession and storage-only license was issued in 1995. A follow-up investigation by the NRC's Office of Investigations (OI) concluded in December 2004 that Mr. Wellman willfully failed to leak-test the portable gauges in accordance with the requirements of the license. In addition, based on a review of the information in the investigation report, it appears that Mr. Wellman willfully failed to provide NRC accurate information in his September 2002 e-mail.

On February 8, 2005, representatives of NRC Region IV contacted Mr. Wellman by telephone to discuss the results of the inspection and investigation. NRC Region IV informed Mr. Wellman that the NRC was considering escalated enforcement action, including possible monetary civil penalties for the apparent violations described above. Mr. Wellman has previously stated his intent to transfer the gauges and terminate the license. During the telephonic discussion, NRC Region IV asked Mr. Wellman if he would agree to take prompt action to transfer the gauges and request termination of R&M's NRC license in lieu of NRC pursuing escalated enforcement action. Mr. Wellman agreed to these actions during the telephone call, and subsequently consented to these actions in response to a letter and a copy of the Confirmatory Order containing the proposed conditions that the NRC sent to Mr. Wellman on February 25, 2005.

III

In a consent form signed on March 16, 2005, R&M Engineering Consultants agreed to all of the commitments described in Section IV below. The Licensee further agreed that this Order would be effective upon issuance and that R&M waived its right to a hearing on this Order. Implementation of these commitments will ensure that licensed material is appropriately handled and disposed of.

I find that the Licensee's commitments as described in Section IV below are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that the public health and safety require that the Licensee's commitments be confirmed by this Order. Based on the above and Licensee's consent, this Order is immediately effective upon issuance.

IV

Accordingly, pursuant to Sections 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Part 30, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT LICENSE NO. 50-23220-02 IS MODIFIED AS FOLLOWS:

1.	Within 30 days of the date of the Confirmatory Order, leak test and obtain the results of leak tests for all sealed sources contained in portable nuclear gauging devices possessed under the authority of License No. 50-23220-02.
2.	Within 35 days of the date of the Confirmatory Order, provide the Director, Division of Nuclear Materials Safety, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas, 76011, with a copy of the results of the leak tests.
3.	Within 45 days of the date of the Confirmatory Order, complete the transfer of all portable nuclear gauging devices possessed under the authority of License No. 50-23220-02 to an authorized recipient.
4.	Within 50 days of the date of the Confirmatory Order, provide the Director, Division of Nuclear Materials Safety, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas, 76011, with copies of documents demonstrating that the transfer has taken place.
5.	Within 60 days of the date of the Confirmatory Order, submit to the Director, Division of Nuclear Materials Safety, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas, 76011, a request for termination of License No. 50-23220-02, using NRC Form 314.

The Regional Administrator, Region IV, may relax or rescind, in writing, any of the above conditions upon a showing by the Licensee of good cause.

V

In accordance with 10 CFR 2.202, any person adversely affected by this Confirmatory Order, other than the Licensee, may request a hearing on this Order within 20 days of its issuance. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. Any request for a hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 76011, and to the Licensee. Because of continuing disruptions in delivery of mail to United States Government offices, it is requested that answers and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to hearing.docket@nrc.gov and also to the Office of the General Counsel either by means of facsimile transmission to 301-415-3725 or by e-mail to OGCMailCenter.Resource@nrc.gov. If a person other than the licensee requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR § 2.309(d)(1) and (f).

If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.

	FOR THE NUCLEAR REGULATORY COMMISSION
	/RA/
	Frank J. Congel, Director Office of Enforcement

Dated this 9th day of May 2005