EA-97-122 - Environmental Protection Agency
Mr. David Longa
Guam Environmental Protection Agency
Monitoring Services Division
P.O. Box 22439-GMF
Barrigada, Guam 96911
SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,750 (NRC Inspection Report No. 030-32364/97-01)
Dear Mr. Longa:
This refers to the inspection conducted on February 19 through March 26, 1997, of your Barrigada, Guam facility. This reactive inspection was conducted after the NRC received information that Guam Environmental Protection Agency (GEPA) had ceased operations at its Harmon, Guam facility and had relocated its licensed radioactive material to its Barrigada, Guam location. The findings of the inspection were communicated to you on March 26, 1997 during a telephonic exit briefing. The results of the inspection were documented in the subject inspection report dated April 28, 1997. The report identified four apparent violations which were being considered for escalated enforcement action, and the report noted that GEPA intended to transfer its licensed material and terminate its license soon. However, before making an enforcement decision regarding the apparent violations, the cover letter to the inspection report stated that we were providing you with an opportunity to either respond to the apparent violations by May 28 or request a predecisional enforcement conference by May 5, 1997. Since we had not received a response to the apparent violations, we contacted you on numerous occasions by telephone starting in mid-June, and each time we were told that you had not had time to respond to the apparent violations, but that you would provide a response shortly. Further, during those telephone conversations you stated that you had not yet transferred the material but that you still intended to transfer it and terminate your NRC license. GEPA did provide a written response in a letter dated August 5, 1997, but had not transferred its material at that time.
Based on the information developed during the inspection, and the information provided in GEPA's August 5 response to the inspection report, the NRC has determined that 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. The apparent violations involve failures to: (1) maintain a gas chromatograph device containing licensed material in an area that was accessible only to persons authorized to use the device and locked when an authorized user was not physically present; (2) notify NRC of the relocation of licensed activities to a facility located in Barrigada, Guam; (3) amend your NRC license after the departure of the authorized radiation safety officer in September 1996; and (4) prepare shipping papers for the transport of radioactive material in March 1996.
GEPA's August 5 letter requested that NRC consider the mitigative circumstances identified in its letter. These circumstances were that in March 1996, GEPA was informed virtually overnight that the entire GEPA facility would have to be relocated within a two week period, and that storage space at the new location was severely limited. Further, the August 5 letter reiterated GEPA's intent to transfer the radioactive material to another licensed entity, and once transferred, to request that its NRC license be terminated. However, our position regarding these circumstances is that GEPA is still obligated to meet NRC requirements until the radioactive material is transferred and the license is terminated.
The failure to maintain licensed material in a secured location as described in the license application was also identified during the previous NRC inspection, and is therefore considered a repeat violation. NRC normally considers failures to provide adequate security and control for licensed radioactive material stored or in use in unrestricted areas to be of significant concern. In addition, the four apparent violations collectively indicate a lack of management oversight of this licensed activities. Therefore, these 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 civil penalty in the base amount of $2,750 is considered for a Severity Level III problem. Because your facility has not been the subject of escalated enforcement actions within the last two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. After reviewing the August 5 letter, we find that GEPA is not deserving of corrective actions credit because your corrective actions are not adequate. We acknowledge that, during the inspection, you took actions to secure the gas chromatograph, and therefore you corrected that violation. However, GEPA is currently in continuing violation because its license has not been amended to reflect (1) the new storage location, and (2) a current, qualified radiation safety officer. GEPA's lack of timely action to transfer its licensed material or to amend its license appropriately, has resulted in the continuation of these violations. As a result, we cannot conclude that you have taken timely corrective action to return to compliance.
Therefore, to emphasize the importance of prompt and comprehensive correction 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 $2,750 for this Severity Level III problem. However, the NRC staff will provide you with a grace period of 60 days from the date of this letter; that is, if you transfer the licensed material to an authorized recipient within 60 days of the date of this letter and comply with NRC's requirements contained in 10 CFR 30.36, the NRC will forego imposition of the $2,750 civil penalty in the enclosed Notice. Your license will be terminated by written notice in accordance with 10 CFR 30.36(k) when GEPA has provided the NRC with the information described in 10 CFR 30.36.
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 should document the specific actions taken and any additional actions you plan to prevent recurrence. Notwithstanding the 60 day grace period, please note that your response to the Notice must be provided within 30 days. 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 2.790 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.
Sincerely, Ellis W. Merschoff Regional Administrator
Docket No. 030-32364
License No. 56-29030-01
Enclosure: Notice of Violation and
Proposed Imposition of Civil Penalty
Dr. O. V. Natrajan, Administrator
Department of Public Health and Social Services
Government of Guam
P.O. Box 2816
Agana, Guam 96910
PROPOSED IMPOSITION OF CIVIL PENALTY
Guam Environmental Protection Agency Docket No. 030-32364 Barrigada, Guam License No. 56-29030-01 EA 97-122
During an NRC inspection conducted on February 19 through March 26, 1997, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission 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. License Condition 15, Application dated May 16, 1991, requires that (1) the licensee's gas chromatograph be accessible only to persons authorized to use the device; and (2) the device will be housed in a room that is locked when an authorized person is not physically present.
Contrary to the above, between March 1996 and February 19, 1997, the licensee's gas chromatograph containing 15 millicuries of nickel-63 had been housed within a storage room that was accessible to individuals who were not authorized to use the device, and was stored in an area that was not locked during periods when authorized personnel were not physically present.
This is a repeat violation.
B. License Condition 10 requires that licensed material by used only at the licensee's facility at 130 Rojas Street, D-107, Harmon, Guam.
Contrary to the above, during March 1996, the licensee moved its licensed activities to a new facility located in Barrigada, Guam, a location not identified on the license.
C. License Condition 11.B specifies that the Radiation Safety Officer for activities under the license is Carmen M. Sian-Denton.
Contrary to the above, in September 1996, Carmen M. Sian-Denton discontinued employment with the licensee and discontinued serving as the licensee's radiation safety officer.
D. 10 CFR 71.5(a) requires that a licensee who transports licensed material outside of the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers licensed material to a carrier for transport, comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation (DOT) in 49 CFR Parts 170 through 189.
49 CFR 177.817(a) requires that a carrier not transport a hazardous material unless it is accompanied by a shipping paper prepared in accordance with 49 CFR 172.200-203. Pursuant to 49 CFR 172.101, radioactive material is classified as hazardous material.
Contrary to the above, during March 1996, the licensee transported a Perkin-Elmer detector cell containing a 15 millicurie nickel-63 foil source outside the confines of its plant without a shipping paper prepared in accordance with 49 CFR 172.200-203.
These violations represent a Severity Level III problem. (Supplement
Civil Penalty - $2,750.
Pursuant to the provisions of 10 CFR 2.201, Guam Environmental Protection Agency (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 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 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 11th day of September 1997