EA-01-181 - Construction Engineering Labs, Inc.

September 27, 2001

EA-01-181

Mr. Ronald A. Pickering II
Vice President Operations
Construction Engineering Labs, Inc.
96-1173 Waihona Street, Suite B7
Pearl City, Hawaii 96782

SUBJECT:

NOTICE OF VIOLATION & PROPOSED IMPOSITION OF CIVIL PENALTY – $3,000 (NRC Inspection Report No. 030-31156/01-01 and Investigation Report No. 4-2001-013)

Dear Mr. Pickering:

This refers to the inspection conducted on March 7, 2001, and the investigation that was initiated on March 28, 2001, of Construction Engineering Labs, Inc. (CEL), Pearl City, Hawaii. You were informed on August 2, 2001, that the NRC was considering escalated enforcement action for apparent violations of NRC requirements related to maintaining security of licensed material (i.e., moisture/density gauges containing cesium-137 and americium-241).

On August 3, 2001, the NRC issued a report describing the results of its inspection and investigation. On August 20, 2001, a closed, predecisional enforcement was conducted with you and members of your staff in Honolulu, Hawaii to discuss the apparent violations, their significance, their root causes, and your corrective actions.

Based on the information developed during the inspection and investigation, and consideration of the information that you provided during the conference, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice). The circumstances surrounding each of the violations were described in more detail in the subject inspection report.

In brief, the violations include the failure on the part of a CEL employee to secure and maintain constant surveillance over a gauge on March 7, 2001, and the failure of CEL to assure that gauges were routinely secured with chains or bars, as CEL committed to do in its license application. Although these violations resulted in no actual safety consequences, they posed the potential for gauges to be stolen, and, as discussed during the conference, involved willfulness on the part of CEL personnel. Therefore, these violations are categorized collectively in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III problem. Because these violations involved willfulness, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. These violations were identified by the NRC during its inspection and investigation; thus, CEL is not deserving of identification credit. CEL took prompt and comprehensive corrective action to assure that CEL employees use chains to secure gauges and to remind all gauge technicians of gauge surveillance requirements. Thus, CEL is deserving of corrective action credit. This results in the assessment of a civil penalty at the base value.

Therefore, to emphasize the importance of strict adherence with requirements to assure adequate security of licensed radioactive material, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the base amount of $3,000 for this Severity Level III problem. 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. In addition to providing a response to the specific violations in the Notice, please describe actions you have taken or are taking to assure that CEL is complying with all of the requirements of its license, particularly commitments that were made in CEL's license application. 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, its enclosure, and your response will be made 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/
		Ellis W. Merschoff Regional Administrator

Docket No.: 030-31156
License No.: 53-23293-01

Enclosure:   Notice of Violation & Proposed Imposition of Civil Penalty

cc w/Enclosure: State of Hawaii

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Construction Engineering Labs, Inc. Pearl City, Hawaii

Docket No. 030-31156 License No. 53-23293-01 EA-01-181

During an NRC inspection conducted on March 7, 2001, and an NRC investigation that was initiated on March 28, 2001, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," 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 particular violations and associated civil penalty are set forth below:

A.	10 CFR 20.1802 requires, in part, that the licensee must maintain constant surveillance of licensed material that is in an unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, unrestricted area means an area to which access is neither limited nor controlled by the licensee. Contrary to the above, on March 7, 2001, a technician for Construction Engineering Labs, Inc. failed to maintain constant surveillance of licensed material that was in an unrestricted area and that was not in storage. Specifically, the technician left a portable moisture/density gauge containing approximately 8 millicuries of cesium-137 and 40 millicuries of americium-241 unsecured and unattended for more than 1 hour. The gauge was left unsecured and unattended in the bed of a pickup truck parked in an area that was accessible by members of the public.
B.	License Condition 22-A requires, in part, that the licensee comply with the terms and conditions of the licensee's application dated April 7, 1994. Item #10, "Radiation Safety Program," of the licensee's application dated April 7, 1994, specifies that licensee personnel will restrain nuclear gauges securely in vehicles with metal clamps, chains, or bars, and never leave nuclear gauges unattended. Contrary to the above, on March 7, 2001 and other occasions, the licensee failed to comply with the terms and conditions of the license. Specifically, on March 7, 2001 and other occasions, the licensee failed to follow the licensee's procedures for securing portable moisture/density gauges in vehicles with metal clamps, chains or bars, instead using only ropes.
	These violations represent a Severity Level III problem (Supplements IV and VI). Civil Penalty – $3000

Pursuant to the provisions of 10 CFR 2.201, Construction Engineering Labs, Inc. (Licensee) is hereby 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 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.

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 or the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 30 days of the date of this Notice, 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.C.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: Frank Congel, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to Ellis Merschoff, Regional Administrator, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

Because your response will be made 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), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. 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 are required to post this Notice within two working days of receipt, and are required to post your response within two working days of sending it to the NRC.

Dated this 27^th day of September 2001