United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-99-042 - Allan A. Myers, Inc.

July 13, 1999

EA 99-042

Mr. A. Ross Myers, President
Allan A. Myers, Inc.
Post Office Box 98
1805 Berks Road
Worcester, Pennsylvania 19490

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,750
(NRC Inspection Report 98-001 and NRC Investigation Report No.1-98-046)

Dear Mr. Ross:

This refers to the NRC inspection conducted on October 28, 1998, at a field site in King of Prussia, Pennsylvania, as well as a subsequent investigation conducted by the NRC Office of Investigations (OI). The investigation was conducted, in part, to determine if your Construction Manager deliberately allowed an employee to use a Troxler gauge (containing 6.6 millicuries of cesium-137) without the employee first having (1) completed the required training program; (2) been designated as an authorized user by the Radiation Safety Officer (RSO); (3) been in the presence of the RSO; and (4) worn dosimetry during the use of the gauge. A copy of the synopsis of the OI investigation was forwarded to you on May 19, 1999.

Based on the inspection and OI investigation, three apparent violations of NRC requirements were identified. In the letter dated May 19, 1999, the NRC informed you of the apparent violations, and also informed you that it might not be necessary to conduct a predecisional enforcement conference in order to enable the NRC to make an enforcement decision. Rather, the NRC provided you an opportunity to either (1) respond to the apparent violations addressed in this inspection report within 30 days of the date of the letter, or (2) request a predecisional enforcement conference. You responded in a letter, dated June 17, 1999, in which you admitted the violations, and provided corrective actions.

Based on the information developed during the investigation, and the information provided in your response, three violations of NRC requirements are being cited. The violations, which are described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), involve (1) use of a portable gauge by an unauthorized individual, without being in the presence of an authorized user, and without necessary training; (2) use of the gauge without appropriate dosimetry; and (3) leaving the gauge unattended at the job site. In your June 17, 1999 letter, you indicated that, based on your review, the Construction Manager did not deliberately violate requirements, but did have a lapse in judgement.

Notwithstanding your contention, the NRC maintains that the violations were deliberate in that the Construction Manager was aware of these regulatory requirements, as he admitted in an interview with OI, but did not take action to assure that the regulatory requirements were met. Also, he had served as RSO at your facility for seven years. Therefore, given their willful nature, the violations have been classified as a Severity Level III problem in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, Revision 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 the violations were willful, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit for identification is not warranted since the violations were identified by the NRC. Credit for corrective actions is warranted because your corrective actions were considered prompt and comprehensive. These corrective actions, which were described in your June 17, 1999 letter to the NRC, included refresher training for all gauge users and the Construction Manager.

Therefore, to emphasize the importance of compliance with regulatory requirements, I have been authorized, after consultation with the Director, Office of Enforcement, to issue a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $2,750. If not for your corrective actions, the civil penalty amount would have been higher. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. You may reference, as appropriate, your June 17, 1999 response to the NRC. 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.

Sincerely,

ORIGINAL SIGNED BY:

Hubert J. Miller
Regional Administrator

Docket No. 030-31824
License No. 37-28555-01

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl :
Commonwealth of Pennsylvania


ENCLOSURE

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Allan A. Myers, Inc
Worcester, Pennsylvania
License No. 37-28555-01
Docket No. 030-31824
EA 99-042

During an NRC inspection conducted on October 28, 1998, as well as a subsequent investigation conducted by the NRC Office of Investigations (OI), 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 NRC 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 violations and associated civil penalty are set forth below:


A.   Condition 11.A. of License No. 37-28555-01 requires that licensed material be only 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, on October 28, 1998, at a temporary jobsite in King of Prussia, Pennsylvania, an employee used a portable gauge without the employee having:

1.  completed the training program for gauge users;
2.  been designated in writing by the RSO as an authorized gauge user; or
3.  been in the physical presence of an authorized gauge user. (01013)

B.   Condition 19 of License No. 37-28555-01 requires that licensed material be possessed and used in accordance with statements, representations and procedures contained in an application dated June 23, 1995.

Item 10.1, Personnel Monitoring Program, of the application dated June 23, 1995, requires that when using the gauges, users will wear Troxler Electronic TLD Badges assigned to the specific operator.

Contrary to the above, on October 28, 1998, at a temporary jobsite in King of Prussia, Pennsylvania, an employee used a portable gauge without the employee having worn personal dosimetry while using the gauge. (01023)

C.   10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in unrestricted areas. 10 CFR 20.1802 requires that the licensee shall 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, unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on October 28, 1998, at a temporary jobsite in King of Prussia, Pennsylvania, the licensee did not control and maintain constant surveillance of licensed material that was in a controlled or unrestricted area and was not in storage. Specifically, on that date, a Troxler Model 4640-B portable gauge containing 6.6 millicuries of cesium 137 was left unattended when the gauge user walked approximately 100 feet away from the gauge on several occasions and did not maintain visual contact with the gauge. (01033)

These violations, given their willful nature, represent a Severity Level III problem (Supplements VI and VII).

Civil Penalty - $2,750.

Pursuant to the provisions of 10 CFR 2.201, Allan A. Myers, Inc. (Licensee), 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. 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 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.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty proposed above in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, a statement indicating when and by what method payment was made, 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 violations 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, statement as to 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 a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I.

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).

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

Dated at King of Prussia, Pennsylvania
this 13th day of July 1999

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