United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-97-425 - Terracon Companies, Inc.

November 17, 1997

EA 97-425

Mr. Larry Davidson
President and Chief Executive Officer
The Terracon Companies, Inc.
16000 College Boulevard
Lenexa, Kansas 66219

SUBJECT:  NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL
          PENALTY -$5,000 
          (Inspection Report No. 030-32176/97-01 & Investigation Report 4-97-010)

Dear Mr. Davidson:

This refers to the predecisional enforcement conference conducted with representatives of The Terracon Companies, Inc. (Terracon), on October 21, 1997, in the NRC's Region IV office in Arlington, Texas. This conference was conducted to discuss two apparent violations of NRC requirements related to Terracon's use of portable nuclear gauges in construction-related work. The NRC's review of these issues, which included an inspection and an investigation by the NRC's Office of Investigations (OI), was completed on October 1, 1997, when we conducted a final telephonic exit interview with Terracon. The apparent violations were described in an inspection report issued on October 9, 1997.

Based on the information developed during the inspection and investigation, and the information discussed at the conference, the NRC has determined that violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty. The violations involve a deliberate failure to assure that individuals received formal training prior to using portable nuclear gauges, as Terracon committed to in its NRC license application, and a failure to transport gauges in accordance with Terracon's procedures.

With regard to the training issue, the NRC acknowledges Terracon's position that operators were provided in-house training, including some training regarding radiation safety, prior to using gauges. Nonetheless, Terracon committed in its NRC license application that all operators would complete an operator safety/training course conducted by the gauge manufacturer. Evidence developed during the NRC's investigation of this matter, as well as during the conference on October 21, indicates that the assistant radiation safety officer responsible for Terracon's Lenexa, Kansas office knew this was required, and yet permitted operators to use gauges prior to receiving this formal training. Although there were no safety consequences of this violation, the NRC considers this a matter of significant regulatory concern because Terracon chose for business reasons to violate this requirement. Therefore, this violation has been categorized 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 civil penalty with a base value of $2,500 is considered for a Severity Level III violation. (1) Because the violation was willful, the NRC considered both Identification and Corrective Action in accordance with the civil penalty assessment process in VI.B.2 of the Enforcement Policy.

This violation was identified by the NRC, thus no credit for identification is warranted. With regard to corrective action, you informed us at the conference that you had taken prompt action to correct this violation, including reminding all of your field offices by memorandum that formal training was required, modifying your Kansas (Agreement State) license to permit Terracon to conduct in-house training in lieu of the manufacturer's training course, and providing additional assistance to the Lenexa, Kansas radiation safety officer to perform tasks associated with maintaining compliance with licensed requirements. Following the conference, you provided us copies of memoranda issued to Terracon's field offices addressing this violation and other related topics. While these actions are acceptable, the NRC finds them lacking in two respects: 1) you do not appear to have emphasized to all employees involved in licensed activities the unacceptability of deliberately violating NRC requirements; and 2) it appears that your compliance program is primarily reactive (i.e., in response to violations or incidents) as opposed to assuring compliance through a more formal audit program. Thus, the NRC has determined that credit for corrective actions is not warranted. This assessment results in a civil penalty at twice the base value.

Therefore, to emphasize the importance of strict compliance with licensed commitments and requirements, and the unacceptability of willful noncompliance, 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 amount of $5,000.

The second violation, involving improperly transporting a portable nuclear gauge in the cab of a vehicle, has been classified at Severity Level IV and is not being assessed a civil penalty. You also provided us information at the conference regarding the corrective actions taken for this violation, including providing your field offices with specific instructions for maintaining compliance with transportation requirements.

Terracon is required to respond to this letter and Notice and should follow the instructions specified in the enclosed Notice when preparing its response. In your response, you should document the specific actions taken and any additional actions planned to prevent recurrence. 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 (PDR).

                              Sincerely, 

                              org signed by J. E. Dyer for

                              Ellis W. Merschoff
                              Regional Administrator

Docket No. 030-32176
License No. 15-27070-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/Enclosure:
State of Kansas


NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

The Terracon Companies, Inc.                      Docket No. 030-32176
Lenexa, Kansas                                    License No. 15-27070-01
                                                  EA 97-425

During an NRC inspection and investigation completed October 1, 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 violation and associated civil penalty are set forth below:

I. Violation Assessed a Civil Penalty

Condition 18A of NRC Materials license 15-27070-01 incorporates by reference statements made by the licensee in a letter dated September 14, 1992.

Page 3 of the "Radiation Safety Plan" enclosed with the letter dated September 14, 1992, states, in part, that all operators will complete a manufacturer's operator safety/training course. It further states that no Terracon employee may possess or operate a sealed source nuclear gauge until trained and authorized by the Corporate RSO.

Contrary to the above, on at least three occasions in 1995, the licensee permitted licensee employees to possess or operate sealed source nuclear gauges although such employees had not completed a manufacturer's operator safety/training course.

This is a Severity Level III violation (Supplement VI).
Civil Penalty - $5,000

II. Violation Not Assessed a Civil Penalty

Condition 18A of NRC Materials license 15-27070-01 incorporates by reference statements made by the licensee in a letter dated September 14, 1992.

Page 3 of the "Radiation Safety Plan" enclosed with the letter dated September 14, 1992, states, in part, that "During transportation, all gauges will be fully secured in the vehicle and located as far from personnel as possible."

Contrary to the above, since December 9, 1991, a gauge operator routinely carried sealed source nuclear gauges in the passenger cab of his vehicle whenever he had to transport these gauges in the rain.

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

Pursuant to the provisions of 10 CFR 2.201, The Terracon Companies, 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 the 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 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 copies 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). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at Arlington, Texas,
this 17th day of November 1997

 


1. This is the base value that was in effect at the time the violations occurred in 1995; it has since been increased to $2,750.

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