EA-98-527 - Materials Testing & Inspection, Inc.

January 28, 1999

EA 98-527

Mr. David O. Cram, General Manager
Materials Testing & Inspection, Inc.
7446 W. Lemhi Street
Boise, Idaho 83709

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-33699/98-01)

Dear Mr. Cram:

This refers to the inspection conducted on October 26-30, 1998, at your facility in Idaho Falls, Idaho. The purpose of the inspection was to review the circumstances surrounding two nuclear gauges owned by Materials Testing & Inspection, Inc., which were found in a residential area on September 27, 1998. The results of the inspection were discussed with you by telephone on December 18, 1998, and were described in NRC Inspection Report No. 030-33699/98-01 issued on January 5, 1999. The NRC informed you that it was considering escalated enforcement action for an apparent violation identified during the inspection. You elected to respond to the apparent violation in writing in lieu of requesting a predecisional enforcement conference.

Based on the information developed during the inspection and the information that you provided in your response letter dated January 21, 1999, 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. This violation involved two portable gauges left unlocked and unsecured overnight in the bed of a pickup truck parked in a residential driveway, and then in a residential garage the following day and night. The root cause of the violation is considered to be a lack of appreciation of the importance of maintaining security of licensed material.

This incident represents a significant failure to control licensed material. Your failure to secure or maintain constant surveillance over the gauges had the potential to result in the theft of the gauges and in unnecessary radiation exposure to members of the general public. 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 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 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. As described in NRC Inspection Report 030-33699/98-01, your immediate corrective actions included locking the gauge cases and returning them to a storage cabinet at your facility. In your response letter, you discussed three additional immediate corrective actions which included: (a) having an independent consultant audit your portable nuclear gauge program at your Boise, Idaho office and sharing the results with your other offices, (b) disciplining the responsible individual, and (c) briefing your Idaho Falls personnel on the specifics of the incident and your license and procedural requirements. Your long-term corrective actions included: (a) refresher training on radiation safety and Department of Transportation requirements, and radiation safety officer training, (b) conducting field audits on all gauge operators, and (c) committing to make changes to your procedures as recommended by the independent consultant. Due to the thoroughness of your corrective actions, the NRC concluded that credit for corrective actions 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 NRC Inspection Report 030-33699/98-01 and your letter dated January 21, 1999. 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 response, if you so chose, will be placed in the NRC Public Document Room.

 

		Sincerely,
		Org signed by
		Ellis W. Merschoff Regional Administrator

Docket No. 030-33699
License No. 11-27504-01

Enclosure: Notice of Violation

cc (w/encl):
Idaho Radiation Control Program Director

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NOTICE OF VIOLATION
Materials Testing & Inspection, Inc. Boise, Idaho 83709		Docket No. 030-33699 License No. 11-27504-01 EA 98-527

During an NRC inspection completed on December 18, 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 September 25-27, 1998, the licensee did not secure from unauthorized removal or limit access to two portable moisture/density gauges containing licensed material located in unrestricted areas in Idaho Falls, Idaho, nor did the licensee control and maintain constant surveillance of this licensed material. This material consisted of 0.3 gigabecquerels (8 millicuries) of cesium-137 and 1.48 gigabecquerels (40 millicuries) of americium-241 in one gauge, and 0.37 gigabecquerels (10 millicuries) of cesium-137 and 1.85 gigabecquerels (50 millicuries) of americium-241 in the other gauge. Specifically, the gauges were stored in unlocked cases in the back of a pickup truck in the driveway of a private residence on September 25 and in an unattached garage of a private residence on September 26-27, 1998. (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. 030-33699/98-01, and in your letter dated January 21, 1999. 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, with the basis for your denial, 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.

If you choose to respond, your response will be placed in the NRC Public Document Room (PDR). Therefore, to the extent possible, the response 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.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 28^th day of January 1999