EA-97-227 - P & W Excavating, Inc.

June 17, 1997

EA 97-227

Mr. Robert Willard, Jr.
Radiation Safety Officer
P & W Excavating, Inc.
Post Office Box 128
Warfordsburg, Pennsylvania 17267

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-20710/97-001)

Dear Mr. Willard:

This refers to the NRC inspection conducted on April 25, 1997, at the above address in Warfordsburg, Pennsylvania. During the inspection, violations of NRC requirements were identified, as described in the NRC inspection report transmitted with our letter, dated May 15, 1997. In the May 15, 1997 letter, the NRC provided you an opportunity to either respond in writing to the apparent violations addressed in the inspection report or request a predecisional enforcement conference. You responded to the apparent violations in a May 31, 1997 letter to the NRC.

Based on the information developed during the inspection and the information you provided in your May 31, 1997 response, the NRC has determined that two violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding the violations are described in detail in the subject inspection report. The most significant violation (Violation A in the enclosed Notice), involves the failure to control and maintain constant surveillance of three gauges containing licensed material not in storage in controlled areas at your facility in Warfordsburg. In one case, the inspector walked unchallenged to the second floor where he found two unattended portable gauges (one containing 8.3 millicuries of cesium 137, and the other containing 8.3 millicuries of cesium 137 and 40 millicuries of americium 241), in a storage room with the door unlocked and open. Also, the inspector was shown an unattended asphalt gauge containing 100 millicuries of americium 241 in the first floor testing room. The door to the first floor testing room was also open and not locked.

This violation represents a significant regulatory concern because the failure to maintain appropriate security of material could result in the damage, loss, or theft to the gauges. The violation is classified at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. Because your facility has not been the subject of an escalated enforcement action within the last two years, 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. Credit for corrective actions is warranted because your corrective action was prompt and comprehensive. Specifically, as noted in your May 31, 1997 letter, you have decided to store all gauges in your storage room, and improvements have been made to ensure the door to the room is closed and locked at all times, including installation of a self-closing and locking unit on the door to ensure limited access.

Therefore, to encourage prompt and comprehensive correction of violations, I have been authorized not to propose a civil penalty in this case. However, similar violations in the future could result in further escalated enforcement action.

In addition to Violation A, one other violation of NRC requirements was also identified and is classified individually at Severity Level IV. Another apparent violation in the inspection report, involving not providing training to hazmat employees, has been withdrawn based on your submittal of information in your May 31, 1997 letter.

The NRC has concluded that information regarding the reasons for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance will be achieved is already adequately addressed on the docket in your May 31, 1997 letter to the NRC. Therefore, you are not required to respond to this letter unless the description therein does not accurately reflect your corrective actions or your position. 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 2.790 of the NRC's "Rules of Practice," a copy of this letter and its enclosure, will be placed in the NRC Public Document Room (PDR).

Sincerely,

ORIGINAL SIGNED BY WILLIAM L. AXELSON for Hubert J. Miller Regional Administrator

Docket No. 030-20710
License No. 37-20676-01

Enclosure: Notice of Violation

cc w/encl:
Commonwealth of Pennsylvania

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NOTICE OF VIOLATION

P & W Excavating, Inc. Warfordsburg, Pennsylvania

Docket No. 030-20710 License No. 37-20676-01 EA 97-227

During an NRC inspection conducted on April 25, 1997, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy) NUREG-1600, the violations are listed below:

A. 10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, outside of a restricted area but inside the site boundary, access to which can be limited by the licensee for any reason; and unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on April 25, 1997, the NRC observed that the licensee did not secure from unauthorized removal or limit access to three gauges containing NRC licensed material (millicurie quantities of cesium-137 and/or americium-241), two of which were located in a second floor storage room, and one of which was located in a first floor sample analysis room, at the licensee's facility at Pigeon Cove Road, Route 1, Warfordsburg, Pennsylvania, which are controlled areas, nor did the licensee control and maintain constant surveillance of this licensed material. (01013)

This is a Severity Level III violation (Supplement IV).

B. 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, as of April 25, 1997, the licensee routinely transported portable gauges (containing 8.3 millicuries of cesium-137 and 40 millicuries of americium-241) outside the confines of its plant without a shipping paper. (02014)

This is a Severity Level IV violation (Supplement V).

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance will be achieved is already adequately addressed on the docket in the licensee's May 31, 1997 letter to the NRC. 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," and send it to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region I, and a copy to the NRC Resident Inspector at the facility that is the subject of this Notice, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

Dated at King of Prussia, Pennsylvania
this 17th day of June 1997