EA-01-010 - Gilmore and Associates, Inc.

February 13, 2001

EA 01-010

Mr. Steven D. Gilmore
President
Gilmore and Associates, Inc.
350 Butler Avenue
New Britain, PA 18901

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-31619/00-01)

Dear Mr. Gilmore:

This refers to the NRC inspection conducted on November 15 and 16, and December 4, 2000, at your facility in New Britian, Pennsylvania, and at a temporary job site at Route 611 in Doylestown, Pennsylvania to review activities authorized by your NRC license for use of nuclear gauges. The inspection was continued in the regional office on December 18 and 19, 2000, to review additional information. During the inspection, seven apparent violations of NRC requirements were identified and were described in our inspection report sent to you on January 11, 2001. On February 8, 2001, a predecisional enforcement conference was held with you and other members of your staff to discuss the apparent violations, their causes, and your corrective actions. At the conference, you also presented the NRC with a letter, dated February 8, 2001, detailing the causes and corrective actions. A copy of the enforcement conference summary is attached.

Based on the information developed during the inspection, the information provided in your February 8, 2001 letter, and the information provided by you during the conference, seven 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 most significant violation involved the failure to properly control and maintain constant surveillance of a portable nuclear moisture/density gauge containing 8 millicuries of cesium-138 and 40 millicuries of americium-241, while that gauge was being used at a temporary job site in Warrington, Pennsylvania in July 2000. The violation occurred when the user of the gauge walked a short distance away to answer a telephone call and left the gauge unattended for a short period. During that time, the gauge was damaged when it was run over by a construction vehicle. Although the incident did not result in any significant radiation exposures, the violation is of concern to the NRC because such incidents could cause workers or members of the public to be exposed to radiation doses above regulatory limits in cases where damage to the gauge involves exposing the radioactive source. Therefore, this violation, which is described in Section I of the enclosed Notice, is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 (May 1, 2000 (65 FRN 25368)). The Enforcement Policy is available at the Office of Enforcement website.

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, 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 because your corrective actions, at the time of the predecisional enforcement conference, were considered prompt and comprehensive. These actions included, but were not limited to: (1) hiring of a new Radiation Safety Officer (RSO) at the facility; (2) training of gauge users regarding the importance of adhering to the requirement to remain with the gauges at all times; (3) development of a procedure for unannounced visits by the RSO to ensure adherence to gauge control requirements; and (4) establishment of a disciplinary policy for users who do not adhere to these requirements.

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. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

In addition to the violation described in Section I of the Notice, six other violations were also identified during the inspection and are described in Section II of the Notice. Five of the seven total violations documented in the Notice were similar to violations identified during the last NRC inspection conducted at your facility in May 1997. Therefore, you should pay particular attention to assuring that your corrective actions for these violations are effective and long lasting.

The NRC has concluded that information regarding the reason for the violations, and the corrective actions taken and planned to correct the violations and prevent recurrence, were described in your February 8, 2001 letter, and/or during the enforcement conference (see enclosed enforcement conference summary). 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 and its enclosure will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public NRC Library.

		Sincerely,
		/RA/ James T. Wiggins Acting for
		Hubert J. Miller Regional Administrator

Docket No. 030-31619
License No. 37-28498-01

Enclosures:Notice of Violationcc w/encl:
Commonwealth of Pennsylvania

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ENCLOSURE

NOTICE OF VIOLATION

Gilmore and Associates, Inc. New Britain, PA

Docket No. 030-31619 License No. 37-28498-01 EA 01-010

During an NRC inspection conducted on November 15 and 16, and December 4, 18, and 19, 2000, seven 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.	VIOLATION ASSOCIATED WITH AN UNSECURED GAUGE
	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, an unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Contrary to the above, on July 13, 2000, at the Hickory Ridge residential housing development in Warrington, Pennsylvania, an unrestricted area, the licensee did not control and maintain constant surveillance of a Troxler Model 3440 portable gauge (Serial No. 30452) containing 8 millicuries of cesium-137 and 40 millicuries of americium-241. Specifically, on that date, the authorized user of the portable gauge walked approximately 100 feet away from the gauge to answer a telephone call, and did not maintain constant surveillance of the gauge in that he was not in close proximity to the gauge and was unable to move the gauge from the path of an oncoming construction vehicle, or alert its operator to the presence of the gauge. As a result, the gauge was damaged when it was run over by the construction vehicle. This is a Severity Level III violation (Supplement IV).
II.	OTHER VIOLATIONS OF NRC REQUIREMENTS
	A.	Condition 11 of License No. 37-28498-01 requires, in part, that licensed material shall only 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. Contrary to the above, on a routine basis from July 1999 to November 2000, an individual (who did not complete the manufacturer's training program for gauge users) used portable gauges containing licensed material one to two times a week and was not under the supervision and in the physical presence of, individuals who had successfully completed the manufacturer's training program for gauge users. This is a Severity Level IV violation (Supplement VI).
	B.	Condition 20 of License No. 37-28498-01 requires, in part, that licensed material be possessed and used in accordance with statements, representations and procedures contained in an application dated March 2, 1990.
		1.	Section 2.B.3. of Item 10 of the application dated March 2, 1990, requires that gauge operators will wear personnel monitoring equipment that is assigned to them when using portable gauges. Contrary to the above, on July 13, 2000, the Radiation Safety Officer did not wear a personnel monitoring device when he responded to an event in which a portable gauge containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 was damaged when it was run over by construction equipment. A second example of this violation occurred during the summer of 2000, when, on several occasions, an individual, while operating a portable gauge, wore a TLD that was assigned to another gauge user. This is a Severity Level IV violation (Supplement VI).
		2.	Section 1.A.4. of Item 10 of the application dated March 2, 1990, requires the RSO to maintain personnel exposure records. Contrary to the above, as of November 15, 2000, the RSO had not maintained personnel exposure records of exposures that occurred during the last quarter of 1998, and from April 4, 1999, to November 15, 2000. Specifically, for TLD badges that were worn during the last quarter of 1998, the RSO did not return the TLDs to the vendor for processing within six months of being worn, and therefore, the vendor could not guarantee their results. Also, as of November 6, 2000, the RSO had not returned TLD badges that were worn from April 4, 1999, to November 15, 2000, to the vendor for processing. This is a Severity Level IV violation (Supplement VI).
	C.	Condition 10 of License No. 37-28498-01 requires that licensed material be stored at the licensee's facilities located at 331 Butler Avenue, New Britain, Pennsylvania. Contrary to the above, from November 15, 1999, to November 15, 2000, licensed material was stored at a location other than the licensee's facilities located at 331 Butler Avenue, New Britain, Pennsylvania. Specifically, the licensee moved, on November 15, 1999, its permanent storage facility to 350 Butler Avenue, New Britain, Pennsylvania, a location not authorized by license condition, and licensed material was stored at that location. This is a Severity Level IV violation (Supplement VI).
	D.	10 CFR 71.5(a) requires that licensees who transport licensed material outside the confines of their plants or deliver licensed material to a carrier for transport comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation (DOT) in 49 CFR Parts 170-189. 49 CFR 177.817(a) requires that a carrier may not transport a hazardous material unless it is accompanied by a shipping paper that is prepared in accordance with 49 CFR 172.200, 172.201, 172.202, and 172.203. Contrary to the above, from the May 2, 1997, to November 16, 2000, the licensee routinely transported hazardous material that was not accompanied by a shipping paper that was prepared in accordance with 49 CFR 172.200, 172.201, 172.202, and 172.203. Specifically, the licensee routinely transported portable gauges containing millicurie quantities of cesium-137 and americium-241 in company vehicles without the required shipping paper. On November 16, 2000, the inspector observed a portable gauge that had been transported to the temporary jobsite at the Route 611 Doylestown Bypass and no shipping paper was present at the site. An authorized user at the site indicated that the gauge was transported to that location without a shipping paper. This is a Severity Level IV violation (Supplement V).
	E.	Condition 13 of License No. 37-28498-01 requires in part, that the licensee test sealed sources for leakage and/or contamination at intervals not to exceed six months. Contrary to the above, the licensee did not perform leak tests at the required interval. Specifically, leak tests of portable gauges possessed by Gilmore were not performed at required intervals from November 15, 1997, to November 15, 2000. Information supporting this conclusion included the fact that records of leak test analysis performed within the past three years could not be produced for Troxler Model 3440, S/N 27533. Troxler Model 3440, S/N 30452, was not leak tested from November 15, 1997, to July 13, 2000, when it was leak tested in response to the damage it sustained on that date. Troxler Model 3440, S/N 30451 was not leak tested since acquired by Gilmore in 1998. Troxler Model 3440, S/N 27819, was only leak tested once during the past three years on March 12, 1998. Troxler Model 3411B, S/N 17959, was not leak tested from January 27, 1997, to March 12, 1998; from April 14, 1998, to May 24, 1999; and from May 24, 1999, to November 15, 2000. Troxler Model 3430, S/N 20595 was not leak tested from June 18, 1997, to June 16, 1999; and from June 16, 1999, to November 15, 2000. All of the time periods described above were greater than the required six month interval. This is a Severity Level IV violation (Supplement VI).

The NRC has concluded that information regarding the reason for the violations, and the corrective actions taken and planned to correct the violations and prevent recurrence were adequately described in the licensee's February 8, 2001 letter, or during the enforcement conference as documented in the NRC enforcement conference summary. Therefore, a response to this Notice is not required. 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 I, 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.

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 or proprietary information so that it can be placed in the PDR without redaction.

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

Dated this 13th day of February 2001