United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-96-248 - Indiana Department of Transportation

October 24, 1996

EA 96-248

Mr. William Switzer
District Director
Indiana Department of Transportation
Crawfordsville District
P.O. Box 667
Crawfordsville, IN 47933

SUBJECT:  NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL
          PENALTY - $2,500 (NRC INSPECTION REPORT NO. 030-32466/95001(DNMS) AND
          OI INVESTIGATION REPORT NO 3-95-036) 

Dear Mr. Switzer:

This refers to the NRC inspection completed on August 2, 1996, and to the investigation conducted by the NRC Office of Investigations (OI) at the Indiana Department of Transportation (INDOT) facility, Crawfordsville, Indiana. The inspection report was sent to you on August 19, 1996. A copy of the synopsis of the OI investigation was included with the inspection report. On September 4, 1996, a transcribed enforcement conference was held with Mr. D. Carpenter and other members of INDOT staff to discuss the violations, their causes, and proposed corrective actions.

During the OI investigation and the transcribed predecisional enforcement conference, an INDOT project engineer told the NRC that he felt he was unfairly constrained by the inability to have part time employees trained before using moisture density gauges. The Radiation Safety Officer (RSO) explained at the predecisional enforcement conference that after a request from the project engineer to train a part time employee, he told the project engineer that training could not be provided, and that a thermoluminescent dosimeter would not be assigned until training was completed. However, based on production pressure, the project engineer deliberately assigned both his badge and a nuclear moisture density gauge to an unauthorized, untrained individual.

Based on the inspection and the OI investigation, and the information presented during the enforcement conference, the NRC has determined that two violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty and the circumstances surrounding them are described in detail in the subject inspection report.

Violation A involved an INDOT project engineer who deliberately violated NRC regulations by allowing an unauthorized trainee to use a moisture density gauge for approximately 4 months without completing the requisite training and without being designated as an authorized user by the RSO. Violation B involved another deliberate violation by the project engineer when he assigned his thermoluminescent dosimeter (TLD) to the same unauthorized trainee he allowed to use the moisture density gauge.

These deliberate violations are of significant regulatory concern because they were caused by an INDOT project engineer who holds a supervisory position and who was knowledgeable of INDOT's NRC-licensed procedures regarding the use of nuclear gauges. While the safety consequence of the violations was somewhat mitigated by the fact that the project engineer did provide some training and a TLD badge to the unauthorized trainee, the violations nonetheless are significant because they resulted, in part, from a lack of management support in providing the necessary resources to conduct licensed activities.

Incumbent upon each entity licensed by the NRC to use byproduct material is the responsibility to protect public health and safety, including its employees, by ensuring that the rules, regulations and license conditions are followed at all times. These violations would normally be classified as Severity Level IV violations in accordance with the enforcement policy. However, because the violations were willful, the violations are classified in the aggregate in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,500 is considered for a Severity Level III problem. Because the violations were deliberate the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit was not given for Identification because the NRC identified the violations. Your corrective actions included: (1) corporate wide training, including a discussion of management expectations regarding gauge use and the unacceptability of violating NRC requirements; (2) commitment to recertify all gauge users annually; and (3) development of a nuclear gauge manual for all gauge users. Further, it is our understanding that you have informed your employees that, notwithstanding production pressure, they are not to conduct licensed activities if all NRC requirements are not met. Therefore, credit was given for your prompt and comprehensive Corrective Actions.

Therefore, to emphasize the importance of compliance with NRC regulations and licensee commitments and to ensure prompt identification of violations, 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 $2,500 for the Severity Level III problem.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In preparing your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. In addition, in your response please confirm our understanding concerning your policy of compliance over production pressure. After reviewing your response to the Notice, including your proposed corrective actions, the NRC will determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure(s), and your response will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personnel privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

                            Sincerely, 

                            /s/ W. L. Axelson (for)

                            A. Bill Beach
                            Regional Administrator 

Docket No. 030-32466
License No. 13-26344-01

Enclosure:
Notice of Violation and Proposed
Imposition of Civil Penalty


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY
Indiana Department of Transportation                           Docket No. 030-32466
Crawfordsville District                                        License No. 13-26344-01
Crawfordsville, IN 47933                                       EA 96-248 

During an NRC investigation and inspection completed on July 3, 1996, and August 2, 1996, respectively, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," 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. Condition 11.A of NRC Material Licensee 13-26344-01 requires, in part, that licensed material shall be used by, or under the supervision and in the physical presence of, individuals who have satisfactorily completed the device manufacturer's training program or INDOT training program conducted by Ronald O. Fine and have been designated by the licensee's Radiation Safety Officer.

Contrary to the above, from August until November, 1993, licensed material consisting of 40 millicuries of americium-241 and 8 millicuries of cesium-137 was used by a person who had not completed either the device manufacturer's training program or INDOT training program conducted by Ronald O. Fine and had not been designated by the licensee's Radiation Safety Officer, and the person was not under the supervision and in the physical presence of an individual with such training and designation. (01013)

B. Condition 19 of NRC Material License 13-26344-01 requires, in part, that the licensee shall conduct its program in accordance with the statements, representations, and procedures contained a letter dated February 13, 1992. Section 1.3.1 of the February 13, 1992 letter, states, in part, that personal radiation devices cannot be shared and that they must be worn by only the individual to whom they are assigned.

Contrary to the above, in August, 1993, an Indiana Department of Transportation project engineer shared a thermoluminescent dosimeter assigned to him with another person, a trainee under his supervision, and allowed that person to wear his TLD until November, 1993, a period of about 4 months. (01023)

This is a Severity Level III problem. (Supplement VI)
Civil Penalty - $2,500

Pursuant to the provisions of 10 CFR 2.201, the Indiana Department of Transportation (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" 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. 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. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, 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 the time specified, 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" 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.B.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, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: James Lieberman, 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 III.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. 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 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at Lisle, Illinois
this 24th day of October 1996

 

 

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