EA-01-214 - Mathy Construction Company

November 6, 2001

EA-01-214

Mr. Charles F. Mathy, President
Mathy Construction Company
920 10^th Avenue North
P.O. Box 189
Onalaska, WI 54650

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$3000 (NRC INSPECTION REPORT NO. 03014086/2001-001(DNMS))

Dear Mr. Mathy:

This refers to the inspection conducted on July 26, 2001, at Mathy Construction Company, Onalaska, Wisconsin, with continued in-office review through August 10, 2001. The inspection reviewed the circumstances surrounding the July 18, 2001, loss of a portable moisture density gauge. The inspection report was transmitted to Mathy Construction Company on September 7, 2001, and identified two apparent violations of NRC requirements. The apparent violations involve: (1) the failure to secure from unauthorized removal or access licensed material stored in an unrestricted area; and (2) the failure to lock the gauge or the transport case while in transport or when not under the direct surveillance of an authorized user.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violations identified in the report either by attending a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. In a letter dated October 5, 2001, Mathy Construction Company's attorney, Mr. Coriden, provided a written response.

Based on the information developed during the inspection and the information that you provided in your response, the NRC has determined that violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described below and in detail in the subject inspection report. On July 18, 2001, you notified the NRC regarding the theft of a device containing licensed material. A portable moisture density gauge was stolen from the back of a pickup truck parked at a gas station. Further, you indicated that while the gauge case was secured to the bed of the truck, the key was left in the case lock and the gauge itself was not locked. The gauge was found by a member of the public and was returned to Mathy Construction Company by a Sheriff's Deputy two hours after the theft.

The failure to adequately secure and to limit access to a portable moisture density gauge resulted in the loss of licensed material and the failure to lock the gauge or transport case while in transport resulted in the gauge being in the public domain with the source rod unsecured. These violations represent a significant safety issue, since implementation of adequate security measures for licensed materials is intended to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. Therefore, the violations have been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), February 16, 2001, as a Severity Level III problem.

In accordance with the Enforcement Policy, a civil penalty is considered for a Severity Level III problem involving the loss of a device such as the moisture density gauge lost by Mathy Construction Company. 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.C.2 of the Enforcement Policy. Credit was warranted for corrective actions that included: (1) reprimanding the individual involved with the violation; and (2) conducting training for all authorized moisture density gauge users on the circumstances surrounding the loss and the importance of maintaining control and security of gauges at temporary job sites. The reprimanded individual's employment was subsequently terminated.

Application of the normal civil penalty assessment process would not result in a civil penalty in this case. However, the revised Enforcement Policy published December 18, 2000, (effective February 16, 2001), provides that, notwithstanding normal application of the civil penalty assessment process, a civil penalty of at least the base amount should normally be proposed in this type of case to reflect the significance of the violation and to emphasize the importance of maintaining control of licensed material. See Section VII.A.1(g) of the Enforcement Policy. The base civil penalty values in the Enforcement Policy were developed to correspond to approximately three times the average cost of disposal. Normal application of the civil penalty assessment process, as reflected in Tables 1A.f.2 and 1B of the Enforcement Policy, would result in a civil penalty of $7500 in this case. The revised Enforcement Policy, however, also provides that civil penalties may be adjusted to correspond to three times the actual expected cost of authorized disposal. Mr. Coriden's October 5, 2001, letter included an estimate from the manufacturer of the lost gauge stating that it would dispose of the device for $335, including transportation costs. Based on this, three times the expected cost of authorized disposal is $1005. However, the NRC has concluded that a civil penalty amount less than the lowest base civil penalty is not sufficient to adequately emphasize the importance of maintaining control of licensed material in the circumstances of this case. Therefore, 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 amount of $3000 for the Severity Level III problem. In addition, issuance of this Notice 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 is already adequately addressed on the docket in Inspection Report No. 03014086/2001-001(DNMS). Therefore, you are not required to respond to the provisions of 10 CFR 2.201 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 choose to provide one, 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/
		J.E. Dyer Regional Administrator

Docket No. 030-14086
License No. 48-18722-01

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Mathy Construction Company Onalaska, Wisconsin

Docket No. 030-14086 License No. 48-18722-01 EA-01-214

During an NRC inspection conducted from July 26 through August 10, 2001, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, February 16, 2001, 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:

	1.	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 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 July 18, 2001, the licensee did not secure from unauthorized removal or access licensed material stored in an unrestricted area, and did not control and maintain constant surveillance of licensed material in an unrestricted area that was not in storage. For approximately 20 minutes, the licensee left a Troxler Model 3440 moisture density gauge unattended inside an unlocked transport container, in the bed of a truck, at a gas station in Baraboo, Wisconsin. The gauge contained nominally 8 millicuries of cesium-137 and nominally 40 millicuries of americium-241 in two sealed sources. Consequently, the gauge was stolen.
	2.	Condition 15 of License No. 48-18722-01, requires that each portable gauge have a lock or outer locked container designed to prevent unauthorized or accidental removal of the sealed source from its shielded position. The gauge or its container must be locked when in transport, storage, or when not under the direct surveillance of an authorized user. Contrary to the above, on July 18, 2001, the licensee neither locked the outer container nor the Troxler Model 3440 moisture density gauge source rod while transporting the gauge, in the bed of a truck, to a temporary job site in Baraboo, Wisconsin. The gauge contained nominally 8 millicuries of cesium-137 and nominally 40 millicuries of americium-241 in two sealed sources.

This is a Severity Level III problem (Supplements IV and VI).
Civil Penalty - $3000

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 Inspection Report No. 03014086/2001-001(DNMS). 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 III, 801 Warrenville Road, Lisle, IL 60532-4351, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

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 of Violation and Proposed Imposition of Civil Penalty, 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 violation 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 234(c) 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 the Regional Administrator, U.S. Nuclear Regulatory Commission, Region III.

If you choose to respond, 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. Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

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

Dated this 6^th day of November 2001.