EA-97-556 - Haines & Kibblehouse, Inc.

December 22, 1997

EA No. 97-556

Mr. Harry R. Budenz, Jr.
Assistant Secretary
Haines & Kibblehouse, Inc.
Post Office Box 196
2052 Lucon Road
Skippack, Pennsylvania 19474

Dear Mr. Budenz:

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-22110/97-001)

This refers to the NRC inspection conducted on November 6, 19, and 21, 1997 at your facilities in Blooming Glen, Pennsylvania and Skippack, Pennsylvania, as well as at a temporary jobsite in Souderton, Pennsylvania. The purpose of the inspection was to determine whether activities authorized by your NRC license were conducted safely and in accordance with NRC requirements. This inspection was initiated after the NRC had visited the facility of Windsor Service. Inc. (Windsor), another licensee located in Reading, Pennsylvania and learned that the control of licensed activities under the Windsor license appeared to have been transferred to Haines & Kibblehouse, Inc. Specifically, all of the Windsor records had been transferred to your Blooming Glen, Pennsylvania office, and one of Windsor's gauges was being stored at your Blooming Glen, Pennsylvania facility.

As described in the NRC inspection report sent to you on November 28, 1997, several apparent violations of NRC requirements were identified during the inspection. On December 12, 1997, a predecisional enforcement conference was conducted with you, as well as personnel from Windsor Services, Inc. to discuss the violations, their causes, and your corrective actions. A copy of the enforcement conference report is enclosed. While we understand, based on the conference, that a gauge had been transferred between companies, and certain employees have responsibilities at both companies, you indicated that your company and Windsor, are separate entities, and you also stated that responsibility for the Windsor NRC license had not been transferred to your company. Therefore, NRC has evaluated separately the inspection findings related to each of the two licenses. This letter deals with the findings related to the Haines & Kibblehouse license.

Based on the information developed during the inspection, and the information provided during the conference, the NRC has determined that twelve violations of NRC requirements were identified. The violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The violations reflect two significant regulatory concerns, namely (1) failure to maintain security over byproduct materials, and (2) inadequate management control of your program.

The security violations, which are set forth in Section I of the enclosed Notice, involve the (1) failure to lock, or place in a locked outer container, a nuclear gauge (containing approximately 8 millicuries of cesium-137) so as to prevent unauthorized access or accidental removal of the sealed source from the safe shielded position; and (2) failure to maintain direct control of the gauge while not in storage. Specifically, while at a temporary jobsite in Souderton, Pennsylvania on November 19, 1997, an NRC inspector observed that a gauge operator was between 60 and 80 feet from where he had placed the gauge on a sidewalk of a bridge, and at the time, the gauge was neither locked nor under the direct surveillance of the gauge operator who was raking asphalt.

These two violations represents a significant regulatory concern because the failure to maintain appropriate security of such gauges could result in the gauges being lost or stolen. In this case, these failures could have also resulted in the gauge being damaged since construction vehicles were being operated in the vicinity of the gauge. Loss, theft, or damage to the gauge, in turn, could have created the potential to cause exposure to members of your staff, as well as members of the public. Therefore, the two violations are classified in the aggregate as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

The remaining violations are described in Section II of the enclosed Notice and involve (1) failure to notify the NRC and request that a new Radiation Safety Officer (RSO) be named on your license after an individual other than the individual listed on your license took over as the Acting RSO; (2) storage of gauges at four locations in Pennsylvania without amending your license to include those locations; (3) failure to perform an evaluation of the radiation dose to a member of the public from storing licensed material at the additional storage locations; (4) failure to perform a review of the radiation safety program content and implementation; (5) failure to perform annual refresher training to personnel; (6) failure to assure that all users of licensed material had received and successfully passed training provided in the manufacturer's course, and received instruction in the licensee's operating and emergency procedures; (7) failure to ensure that hazmat employees received required instruction; (8) failure to complete shipping papers and mark transport cases used to transport gauges containing americium-241; (9) failure to test sealed sources of licensed material for contamination and/or leakage of radioactive material at the required six month interval; and (10) failure to maintain updated copies of the RSO Accident Response Sheet.

Given the nature and number of the violations set forth in Section II, those violations indicate a significant lack of control of, and attention to, licensed activities at your facility, which collectively represent a breakdown in control of licensed activities. Of particular concern was your storage of gauges at permanent locations not listed on your license, without first obtaining NRC approval, and without any evaluation of the radiation exposure a member of the public would receive from licensed material being stored at those additional locations. These violations also have been is classified in the aggregate as a Severity Level III problem 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 or problem. Because your facility has not been the subject of an escalated enforcement action within the last two inspections conducted in 1993 and 1989, 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 for both Severity Level III problems because your corrective actions were both prompt and comprehensive. These actions, which were described during the enforcement conference, as well as in a December 10, 1997 response to a Confirmatory Action Letter issued by the NRC on November 25, 1997, included, but were not limited to: (1) submission of a license amendment to the NRC naming the new RSO and listing areas where licensed material will be stored; (2) retraining of staff in several areas, including the importance of control and constant surveillance of licensed material at all times; (3) development of a procedure for the conduct of training; (4) establishment of a protocol for performing the annual review of the radiation safety program; (5) creation of new shipping papers; and (6) auditing of the field sites to ensure that requirements are being followed.

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

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.

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 HUBERT J. MILLER Hubert J. Miller Regional Administrator

Docket No. 030-22110
License No. 37-20809-01

Enclosures:
1. Notice of Violation
2. Enforcement Conference Report

cc w/encls:
Commonwealth of Pennsylvania
Edward Morrison, Radiation Safety Officer

eph A. LaFlamme
c/o Paul R. Ober & Associates
Attorneys at Law
234 N. 6th Street
Reading, PA 19601

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NOTICE OF VIOLATION

Haines & Kibblehouse, Inc. Skippack, Pennsylvania

Docket No. 030-22110 License No. 37-20809-01 EA 97-556

During an NRC inspection conducted on November 6, 19 and 21, 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:

I. VIOLATIONS OF SECURITY REQUIREMENTS

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 November 19, 1997, the licensee did not secure from unauthorized removal or limit access to a portable gauge containing approximately 8 millicuries of cesium-137 located at a temporary jobsite in Souderton, Pennsylvania, an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, the licensee left the gauge unsecured and did not limit access to the gauge while performing other duties approximately 60 feet away. (01013)

B. Condition 17 of License No. 37-20809-01 requires that each portable gauge have a lock or outer locked container designed to prevent unauthorized or accidental removal of the sealed source from its shielded position. The gauge or its outer container must be locked when in transport, storage or when not under the direct surveillance of an authorized user.

Contrary to the above, on November 19, 1997, a portable gauge located at a temporary jobsite in Souderton, Pennsylvania, was not locked or in an outer locked container and the gauge was not under the direct surveillance of an authorized user. Specifically, the unlocked portable gauge was left unattended about 60 feet from an authorized user who was occupied with other tasks. (01023)

These violations are categorized in the aggregate as a Severity Level III problem (Supplements IV & VI).

II. OTHER VIOLATIONS OF NRC REQUIREMENTS

A. 10 CFR 20.1101(c) requires that each licensee periodically (at least annually) perform a review of the radiation safety program content and implementation.

Contrary to the above, in 1994, 1995, and 1996, the licensee did not perform a review of the radiation safety program content and implementation. (02013)

B. 10 CFR 30.34(c) requires, in part, that each person licensed by the Commission pursuant to the regulations in 10 CFR Part 30 confine his possession of the byproduct material to the locations authorized in the license.

Contrary to the above, as of November 21, 1997, the licensee possessed byproduct material at locations other than those listed in Condition 10 of the license. Specifically, the licensee possessed byproduct material at 2052 Lucon Road, Skippack, Pennsylvania; Locust Ridge Quarry, Route 282, Pocono Lake, Pennsylvania; Handewerk Materials, Old Farm Road, Hummelston, Pennsylvania; and Lehigh Valley Site Contractors, 211 Lower Mud Run Road, Easton, Pennsylvania; locations not authorized for the storage of byproduct material and not temporary jobsites. (02023)

C. 10 CFR 20.1501 requires that each licensee make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present.

Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation.

Contrary to the above, as of November 21, 1997, the licensee did not make surveys to assure compliance with 10 CFR 20.1301(a), which limits radiation exposure to individuals of the general public to 100 millirem in a year. Specifically, the licensee stored portable gauges (containing approximately eight millicuries of cesium-137 and 44 millicuries of americium-241, both byproduct material) at facilities in Skippack, Pennsylvania, Pocono Lake, Pennsylvania, Hummelston, Pennsylvania, and Easton, Pennsylvania, and at the time, the licensee did not perform an evaluation of the radiological conditions and potential hazards of the presence of radioactive materials to individuals of the general public. (02033)

D. 10 CFR 71.5(a) requires that a licensee who transports licensed material outside 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 Department of Transportation (DOT) regulations in 49 CFR Parts 170 through 189 appropriate to the mode of transport.

Pursuant to 49 CFR 172.101, radioactive material is classified as hazardous material.

1. 49 CFR 172.203(c)(2) requires that the letters "RQ" be entered on the shipping paper either before or after the basic description required for each hazardous substance.

Contrary to the above, as of November 21, 1997, the licensee transported outside the confines of its plant portable gauges containing approximately 44 millicuries of americium-241, a hazardous material, and the letters "RQ" were not entered either before or after the description on the shipping paper that accompanied the shipment. (02043)

2. 49 CFR 172.324(b) requires that for each non-bulk package that contains a hazardous substance that the letters "RQ" be marked on a package in association with the proper shipping name.

Contrary to the above, as of November 21, 1997, non-bulk packages containing a hazardous substance (i.e., 44 millicuries of americium-241) were transported by the licensee and the letters "RQ" were not marked on the package in association with the shipping name. (02053)

3. 49 CFR 172.702 requires that each hazmat employer ensure that each hazmat employee is trained and tested, and that no hazmat employee performs any function subject to the requirements of 49 CFR Parts 171-177 unless trained, in accordance with Subpart H of 49 CFR Part 172. The terms Hazmat Employer and Hazmat Employee are defined in 49 CFR 171.8.

Contrary to the above, as of November 21, 1997, the licensee did not provide training for its hazmat employees as required by Subpart H to 49 CFR Part 172, and the licensee otherwise meets the definition of hazmat employer in 49 CFR 171.8. (02063)

E. Condition 11 of License No. 37-20809-01 requires that licensed material be used by, or under the supervision and in the physical presence of individuals who have successfully completed the manufacturer's training program for gauge users, have been instructed in the licensee's routine and emergency operating procedures and who have been designated in writing by the Radiation Safety Officer (RSO).

Contrary to the above, as of November 19, 1997, licensed material was used by individuals who had either not successfully completed the manufacturer's training program for gauge users or who had not been designated in writing by the RSO. Specifically, three individuals were listed on the sign in/sign out logs for the portable gauges as having used the portable gauges and the RSO did not have a record of their training in accordance with Condition 11 of the license (One individual received radiation safety training and portable gauge use training from other than a manufacturer, and two individuals had been trained but had not been designated in writing by the RSO). (02073)

F. Condition 12 of License No. 37-20809-01 requires that a specifically named individual perform the duties of the RSO.

Contrary to the above, as of November 21, 1997, the specifically named individual was not performing the duties of the RSO. Specifically, the RSO named on the license stopped performing the duties of the RSO in mid-1995. (02083)

G. Condition 13.A. of License No. 37-20809-01 requires that sealed sources and detector cells containing licensed material be tested for leakage and/or contamination at intervals not to exceed six months or at such other intervals as are specified by the certificate of registration referred to in 10 CFR 32.210, not to exceed three years.

Contrary to the above, as of November 21, 1997, sealed sources containing licensed material were not tested for leakage and/or contamination at intervals not exceeding six months and the certificate of registration referred to in 10 CFR 32.210 did not specify another leak test interval. Specifically, three devices containing approximately 8 millicuries of cesium-137, a licensed material, were leak tested on October 16, 1996 and November 10, 1997; February 17, 1997 and September 10, 1997; February 17, 1997 and October 30, 1997, respectively; and a fourth device containing approximately 8 millicuries of cesium-137 and 44 millicuries of americium-241, licensed materials, was leak tested on February 8, 1996 and October 29, 1997. All of the above intervals exceeded six months. (02093)

H. Condition 20 of License No. 37-20809-01 requires that the licensee conduct its program in accordance with the statements, representations and procedures contained in the application dated April 19, 1995 and the letter dated July 7, 1995.

1. Item 2 of the July 7, 1995 letter requires that the licensee perform annual refresher training to the authorized users of the portable gauges.

Contrary to the above, as of November 21, 1997, the licensee did not provide annual refresher training to the authorized users of portable gauges in 1995 and 1996. (02103)

2. Item 10.7 of the April 19, 1995 application requires that the licensee maintain updated copies of the Radiation Safety Officer Accident Response Sheet.

Contrary to the above, as of November 21, 1997, the licensee did not maintain update copies of the Radiation Safety Officer Accident Response Sheet. Specifically, the Radiation Safety Officer Accident Response Sheet had not been updated since Mid-1995 when the RSO discontinued performing his duties. (02113)

These violations are categorized in the aggregate as a Severity Level III problem (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Haines & Kibblehouse, Inc. is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555, with a copy to the Regional Administrator, Region I, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. 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. Where good cause is shown, consideration will be given to extending the response time.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

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 King of Prussia, Pennsylvania
this 22nd day of December 1997