EA-98-237 - Hawaii, State of

July 21, 1998

EA 98-237

Mr. Pericles Manthos, Administrator
State of Hawaii
Department of Transportation, Highways Division
Materials Testing and Research Branch
869 Punchbowl Street
Honolulu, Hawaii 96813

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-13127/98-01)

Dear Mr. Manthos:

This refers to subject inspection report which identified an apparent violation that was being considered for escalated enforcement action. The apparent violation involved the failure to secure from unauthorized removal or limit access to portable gauges containing licensed material. The findings of the inspection were discussed with members of your staff on April 24, 1998, and were documented in the subject report dated April 28, 1998. Our letter informed you that it may not be necessary to conduct a predecisional enforcement conference in order to enable the NRC to make an enforcement decision and we provided you with either the opportunity to respond to the apparent violation in writing or the opportunity to request a predecisional enforcement conference. You did not request a conference, and instead provided a written response by letter dated June 4, 1998. Your June 4 letter also responded to other nonescalated violations which were issued with the inspection report.

Based on the information developed during the inspection and the information that you provided in your June 4 letter, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it are described in detail in the subject inspection report. The violation involves two instances of failures to adequately secure gauges containing licensed material from unauthorized removal or access. In the first instance, our inspector found a gauge stored inside an unlocked vehicle inside the State of Hawaii's baseyard in Kapa'a, Hawaii. In the second instance, the inspector observed a gauge stored inside an unlocked room in the baseyard. Also, the room was partially walled off in that the walls did not go all the way to the ceiling. As such, the gauges could not be secured in their normal storage area because individuals were not prevented from climbing over the wall and to have access to the gauge. In fact, at one point late in the inspection, the user did climb over the wall because he did not have the key to the door.

There were no safety consequences associated with this violation. Nonetheless, these two instances of failures to secure gauges to prevent unauthorized access to licensed material are considered significant because of the potential for improperly secured gauges to be lost or stolen. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty in the base amount of $2,750 is considered for a Severity Level III violation. 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. Your corrective actions included emphasizing procedures and requirements for proper gauge storage and security, better control of the keys to the locked storage area, enclosing the opening between the top of the wall and the ceiling, reprimanding the individual involved, and implementing additional controls for gauge users and their supervisors. Our evaluation of your corrective actions indicates that Corrective Action credit was warranted.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action, that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence and the date when full compliance was achieved is already adequately addressed on the docket in the subject inspection report and your June 4, 1998, letter. 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, its enclosure, and your June 4 letter will be placed in the NRC Public Document Room (PDR).

		Sincerely,
		org signed by
		Ellis W. Merschoff Regional Administrator

Docket No. 030-13127
License No. 53-17656-01

Enclosure: Notice of Violation

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NOTICE OF VIOLATION
State of Hawaii Department of Transportation, Highways Division Materials Testing and Research Branch Honolulu, Hawaii		Docket No. 030-13127 License No. 53-17656-01 EA 98-237

During an NRC inspection conducted on March 23, 1998, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

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 March 23, 1998, the licensee did not secure from unauthorized removal or limit access to a portable gauge containing 10 millicuries of cesium-137 and 50 millicuries of americium-241 located in an unlocked vehicle and to a portable gauge containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 located in an unlocked storage area both located in the licensee's baseyard in Kapa'a, Hawaii, which is a controlled area, nor did the licensee control and maintain constant surveillance of the licensed material. (01013)

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

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence and the date when full compliance was achieved is already adequately addressed on the docket in NRC Inspection Report No. 030-113127/98-01 and the Licensee's June 4, 1998, letter. 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, DC 20555 with a copy to the Regional Administrator, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

If you contest this enforcement action, you should also provide a copy of your response to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

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).

Dated at Arlington, Texas
this 21th day of July 1998