EA-96-459 - Western Colorado Testing, Inc.

June 13, 1997

EA 96-459

James R. Fife, President
Western Colorado Testing, Inc.
529 25 1/2 Road, #B101
Grand Junction, Colorado 81505

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$2,500 (NRC Inspection Report No. 150-00005/96-01 and Investigation Report No. 4-96-040)

Dear Mr. Fife:

This refers to the inspection conducted from October 11, 1996, through February 3, 1997, and investigation conducted from August 14, 1996, through January 8, 1997, to review the activities of Western Colorado Testing, Inc., (WCTI) in the states of Idaho and Wyoming. The findings of the inspection and investigation were discussed with you during a telephonic exit briefing on February 3, 1997, and were documented in the subject inspection report dated March 7, 1997. Our March 7 letter forwarding the inspection report to you described one apparent violation which was being considered for escalated enforcement action. The apparent violation involved a failure to file an NRC Form 241 as required by 10 CFR 150.20. WCTI was provided the opportunity to either respond to the apparent violation in writing within 30 days or to request a predecisional enforcement conference. WCTI did not request a predecisional enforcement conference, and instead WCTI provided a written response to the apparent violation in its letter dated April 1, 1997.

Based on the information developed during the inspection, and the information that you provided in your April 1 response to the apparent violation, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and involves WCTI's failure to notify the NRC prior to conducting licensed activities in non-Agreement States in 1995 and 1996. In your April 1, 1997 letter, you acknowledged the violation, but stated that while certain individuals may have knowingly violated the rules, they did so without the knowledge of key management.

However, we note that WCTI senior managers were aware of the requirement to inform the NRC prior to working in areas of NRC's jurisdiction. Specifically, in 1992 WCTI filed an NRC Form-241 before conducting licensed activities in the State of Idaho. Given: (1) the knowledge of WCTI of the requirement to file NRC form-241's, (2) the apparent lack of communications between the Radiation Safety Officer (RSO) and laboratory supervisor, (3) the lack of clear lines of responsibility, (4) the RSOs' failure to identify and act on the violations, and (5) the failure to assure that the laboratory supervisor's statement concerning "not to spend unnecessary money" was not misunderstood, the NRC concludes that WCTI's failure to file for reciprocity demonstrates at least careless disregard for NRC requirements and is therefore willful.

The NRC considers the failure to obtain authorization to use byproduct material in areas under its jurisdiction, by either obtaining an NRC license or filing an NRC Form 241, to be a matter of significant regulatory concern because it denies the NRC an opportunity to assure that the activities are conducted in compliance with all NRC radiation safety requirements. In this case, the violation is especially significant because of its willful nature. Therefore, the violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty with a base value of $2,500 is considered for a Severity Level III violation. Because the violation was willful, 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. The NRC discovered the violation; thus, the NRC has determined that WCTI is not deserving of credit for identifying the violation. However, based on the corrective actions described in WCTI's April 1 letter, the NRC has determined that credit is warranted for Corrective Action. Withholding identification credit and giving credit for corrective actions results in the assessment of a penalty at the base value.

Accordingly, to emphasize the need for WCTI's management and RSO to assure that WCTI is meeting regulatory requirements, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice in the base amount of $2,500 for the Severity Level III violation described above and in the Notice.

The NRC has also corresponded with the President and two former RSOs of WCTI concerning these matters. A copy of these letters will be provided to you under separate cover.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements. Your response may reference previously submitted correspondence, if appropriate.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response, will be placed in the NRC Public Document Room (PDR).

Should you have any questions concerning this letter, please contact Gary Sanborn or Michael Vasquez at (817) 860-8222.

Sincerely,

org signed by Ellis W. Merschoff Regional Administrator

Docket No. 150-00005
License No. Colorado 580-01

Enclosure: Notice of Violation and Imposition of Civil Penalty

cc w/Enclosure: State of Colorado

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Western Colorado Testing, Inc. Grand Junction, Colorado

Docket No. 150-00005 License No. Colorado 580-01 EA 96-459

During an NRC investigation conducted from August 14, 1996, through January 8, 1997, and inspection conducted October 11, 1996, through February 3, 1997, a violation of NRC requirements was 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 violation and associated civil penalty are set forth below:

10 CFR 30.3 requires in relevant part, that no person shall possess or use byproduct material except as authorized by a specific or general license issued by the NRC.

10 CFR 150.20(a) provides 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 subject to the provisions of 10 CFR 150.20(b).

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 such activity, file 4 copies of NRC Form-241, "Report of Proposed Activities in Non-Agreement States", with the Regional Administrator of the appropriate NRC regional office.

Contrary to the above, on numerous occasions in 1995 and 1996, Western Colorado Testing, Inc., a licensee of the State of Colorado, an Agreement State, used nuclear gauges in Idaho and Wyoming, non-Agreement States, and failed to file a Form-241 with the NRC prior to engaging in such activity. Specifically, Western Colorado Testing, Inc., used nuclear gauges at the following locations on the indicated dates:

1. Idaho Falls Airport, Idaho, from April 8 to November 1, 1996; and

2. Dixon Airport, Wyoming, on April 16 - 20 and May 1, 1995.

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

Pursuant to the provisions of 10 CFR 2.201, Western Colorado Testing, Inc., (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 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 the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 violation 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

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).

Dated at Arlington, Texas,
this 13th day of June 1997