EA-98-437 - Materials Testing Lab, Inc.

November 3, 1998

EA 98-437

Mr. Kevin M. CosgrovePresident
Materials Testing Lab, Inc.
1529 Jericho Turnpike
New Hyde Park, New York 11040

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-08728/98-001)

Dear Mr. Cosgrove:

This refers to the NRC inspection conducted on July 13, 14, 29, and 30, 1998, at your facility located at 101A Liberty Street, Newington, Connecticut, and a temporary job site in Hartford, Connecticut, to determine whether activities authorized by your license were conducted safely and in accordance with NRC requirements. As described in the NRC inspection report sent to you on September 16, 1998, nine apparent violations of NRC requirements were identified during the inspection. In that letter, you were offered the opportunity to respond to the apparent violations in writing or request a predecisional enforcement conference. You requested a conference. On October 23, 1998, a predecisional enforcement conference was conducted with you to discuss the apparent violations, their causes, and your corrective actions. A copy of the enforcement conference report is enclosed.

Based on the information developed during the inspection, and the information provided during the conference, eight violations of NRC requirements are being cited. The violations are described in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The violations being cited include: (1) failure to secure licensed material from unauthorized access or removal from a controlled or unrestricted area which resulted in a loss of a gauge from the Newington, Connecticut facility; (2) failure to review the radiation safety program content and implementation at least annually; (3) failure to perform surveys that are reasonable under the circumstances to evaluate the potential radiological hazards that could be present; (4) and (5) failure to mark and label packages containing hazardous material transported on public highways; (6) failure to train hazmat employees; (7) failure to maintain possession limits for materials under NRC jurisdiction below 750 millicuries of americium-241; and (8) failure to maintain records required by the license at the New York office as stated in the correspondence dated November 29, 1996.

The violations collectively demonstrate that a significant breakdown in the control of licensed activities existed at your facility. For example, a lack of attention to detail in program oversight resulted in inadequate control of keys for the storage of gauges, contributing to the loss of the gauge. In addition, the Radiation Safety Officer (RSO) was not aware of basic regulatory requirements, such as the requirement to perform an annual review of the program, demonstrating that the RSO did not spend the time required in reviewing changes in the regulations to ensure prompt implementation. The NRC entrusts responsibility for radiation safety to management and the RSO. Therefore, the NRC expects effective oversight of its licensed programs. Incumbent upon each NRC licensee is the responsibility for management in general, and the RSO in particular, to protect the public health and safety by ensuring that all requirements of the NRC license are met and any potential violations of NRC requirements are identified and corrected expeditiously. Given the lack of management attention towards licensed responsibilities, these 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, Rev. 1.

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 in February 1993 and March 1998, 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. Those actions, which were described at the enforcement conference, included: (1) performance of audits of the program by the RSO with plans to increase the frequencies of these audits; (2) initiation of a stricter key control policy in addition to requiring that utilization logs be completed when gauges are used; (3) changing the locks and security code at the Connecticut facility; (4) review of the training certificates of all employees, and suspension of the use of gauges for the employee whose hazmat certificate expired until such time that it is renewed; (5) filing separate applications for licenses for your Connecticut, New Jersey, and Delaware facilities; and (6) plans to provide the necessary resources to ensure that the program has the appropriate oversight to ensure that these violations do not recur. Credit for corrective actions is warranted because your corrective actions were both prompt and comprehensive.

Therefore, to encourage prompt and comprehensive corrective actions, 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.

The apparent violation described in the inspection report, associated with the failure to store licensed material at the New York facility, is being classified as a minor violation, and is not being cited.

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 WILLIAM L. AXELSON
FOR	Hubert J. Miller Regional Administrator

Docket No. 030-17801
License No. 31-19502-01

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

cc w/encls:
Fred Hauck, Radiation Safety Officer
State of New York
State of Connecticut
State of New Jersey
State of Delaware

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NOTICE OF VIOLATION

Materials Testing Lab, Inc. New Hyde Park, NY

License No. 31-19502-01 Docket No. 030-17801 EA 98-437

During an NRC inspection conducted on July 13, 14, 29, and 30, 1998, eight violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, Rev. 1, the violations are listed below:

A.	10 CFR 20.1801 requires that licensees secure licensed material from unauthorized access or removal from a controlled or unrestricted area.
	Contrary to the above, on or about May 29, 1998, the licensee did not secure licensed material from unauthorized access or removal from a controlled or unrestricted area. Specifically, on or about May 29, 1998, the licensee left a portable gauge (containing sealed sources of nominal 8 millicuries (mCi) of cesium-137 and nominal 44 mCi of americium-241) unsecured and unattended at its facility located in Newington, Connecticut. The storage area was left unlocked, and there was easy access by unauthorized personnel to the key for the storage area. The gauge was subsequently lost and has not been recovered. Also, licensee personnel recounted instances where unattended portable gauges containing licensed material were left in an unsecured condition for periods of time on the dock at the Connecticut facility. (01013)
B.	10 CFR 20.1101(c) requires that each licensee perform a review of the content and implementation of the radiation safety program at least annually.
	Contrary to the above, as of July 30, 1998, the licensee did not perform a review of the content and implementation of the radiation safety program at least annually. Specifically, since the regulation went into effect in January of 1994, the licensee had not performed a review. (01023)
C.	10 CFR 20.1501 requires, in part, that licensees make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in 10 CFR Part 20 and are reasonable under the circumstances to evaluate the potential radiological hazards that could be present.
	10 CFR 20.1201 requires, in part, that licensees control the occupational dose to individual adults, except for planned special exposures under 10 CFR 20.1206, to an annual limit, which is the more limiting of the total effective dose equivalent being equal to 5 rem (0.05 Sieverts); or the sum of the deep-dose equivalent and the committed dose equivalent to any individual organ or tissue other than the lens of the eye being equal to 50 rem (0.5 Sieverts).
	Contrary to the above, as of July 29, 1998, the licensee did not make or cause to be made surveys that were necessary for the licensee to show compliance with 10 CFR 20.1201, and were reasonable under the circumstances to evaluate the radiological hazards that could have been present. Specifically, the licensee failed to have the necessary surveys (TLDs) when individuals either lost their personnel monitors or turned their personnel monitors in late, nor did the licensee perform an assessment to determine whether the individuals were within the regulatory limits. (01033)
D.	10 CFR 71.5 requires that each licensee who transports licensed material outside of the site of usage, as specified on 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 DOT regulations in 49 CFR Parts 170 through 189 appropriate to the mode of transport.
	1.	49 CFR 172.324(b) requires that the letters "RQ" be marked on packages in association with the proper shipping name. Contrary to the above, as of July 29, 1998, the letters "RQ" were not marked on packages in association with the proper shipping name. Specifically, some transportation cases were used to transport hazardous materials (containing up to 44 mCi of americium-241) on public highways from the Newington, Connecticut facility to temporary job sites in Connecticut, and at the time, the cases were not marked with the letters "RQ". (01043)
	2.	49 CFR 172.403(f) requires, in part, that each package required to be labeled with a RADIOACTIVE label must have two of these labels affixed to opposite sides of the package. Contrary to the above, as of July 29, 1998, packages required to be labeled with a RADIOACTIVE label did not have two of these labels affixed to opposite sides of the package. Specifically, the packages used to transport hazardous materials on the public highway only had one RADIOACTIVE label. (01053)
	3.	49 CFR 172.702(a) requires that a hazmat employer ensure that each of its hazmat employees is trained in accordance with the requirements prescribed in 49 CFR 172.704. Contrary to the above, as of July 13, 1998, the licensee, a hazmat employer, did not ensure that each of its hazmat employees was trained in accordance with the requirements prescribed in 49 CFR 172.704. Specifically, one hazmat employee's training certificate had previously expired, and that individual transported hazardous materials on public highways while the certificate was expired. In addition, another hazmat employee, who did not have a valid training certificate, and was not trained upon obtaining his employment at the licensee's facility, also transported hazardous material on the public highways. (01063)
E.	Condition 8.B of License No. 31-19502-01 requires that the licensee not possess more than 750 mCi of americium-241 under NRC jurisdiction.
	Contrary to the above, for a period between June 1997 and December 1997, the licensee possessed more than 750 mCi of americium-241 under NRC jurisdiction. Specifically, the licensee possessed a total of 21 devices under NRC jurisdiction which contained approximately 800 mCi of americium-241. (01073)
F.	Condition 18 of License No. 31-19502-01 requires, in part, that the licensee conduct its program in accordance with the statements, representations and procedures contained in the letter dated November 29, 1996.
	The letter dated November 29, 1996 requires that records pertaining to the licensed program be kept at 1539 Jericho Turnpike, New Hyde Park, New York.
	Contrary to the above, as of July 30, 1998, the licensee kept certain records pertaining to the licensed program at locations other than at 1539 Jericho Turnpike, New Hyde Park, New York. Specifically, training records, as well as other records pertaining to the licensed program, were maintained at the facilities in Newington, Connecticut; Edison, New Jersey; and Dover, Delaware. (01083)

These violations represent a Severity Level III problem (Supplements IV, V, and VI).

Pursuant to the provisions of 10 CFR 2.201, Materials Testing Lab, Inc. is 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 to 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.

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 3rd day of November 1998