EA-02-165 - Catenary Coal Company

August 21, 2002

EA-02-165

Catenary Coal Company
ATTN: Gary Wright
Plant Superintendent
Samples Mine
5914 Cabin Creek Road
Eskdale, West Virginia 25075-9656

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 47-25301-01/02-01)

Dear Mr. Wright:

This refers to the inspection conducted on June 24 and 25, 2002, at your Eskdale, West Virginia facility. The purpose of the inspection was to examine issues related to the removal of a fixed gauge with the shutter open at your facility on June 13, 2002. The results of the inspection, including three apparent violations, were transmitted to you by NRC letter dated July 24, 2002. Based on the NRC's additional review of the significance of the apparent violations, a telephonic exit briefing was conducted with you on August 14, 2002. You were informed that the NRC was considering escalated enforcement action for two apparent violations, involving (1) the removal from service of a fixed gauge by persons not specifically licensed to perform such services, and (2) the failure to lock the gauge shutter mechanism in the closed position during periods when a portion of an individual's body may be subject to the direct radiation beam. Regarding the third apparent violation, the NRC concluded that this issue did not represent a violation of regulatory requirements. During the exit briefing of August 14^th, you were informed that the NRC had sufficient information regarding the apparent violations and your corrective actions to make an enforcement decision without the need for a predecisional enforcement conference or a written response from you. You indicated during the telephonic exit that Catenary Coal Company (CCC) did not believe that a predecisional enforcement conference or written response was necessary prior to NRC taking enforcement action.

Therefore, based on the information developed during the inspection, the NRC has determined that two violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. Violation (A) involved the removal from service of a Texas Nuclear Model 5202 fixed gauge containing 357 millicuries of Cesium 137 (Cs-137) by licensee personnel who were not specifically licensed by the NRC or an Agreement State to perform such services. A related violation (Violation B) occurred during the removal of the gauge, when licensee personnel failed to assure that the shutter mechanism of the gauge was locked in a closed position. CCC's review of the event identified the cause to be ineffective training of personnel, in that the training failed to fully emphasize to employees that they were not authorized to remove the gauge from the process pipe. Also, contributing to the event was the fact that employees had performed this task at other locations in the past (in the presence of individuals licensed to perform such activities), and these employees assumed that they could do the same at this facility. In this case, licensee personnel who were replacing the pipe reached the gauge ahead of schedule and proceeded to remove the gauge themselves.

Although the violations did not result in any significant radiation exposure to CCC personnel or other individuals, the potential existed for significant or unnecessary radiation exposures, particularly because the shutter remained opened while the gauge was being removed. Because the individuals performing the gauge removal task were not qualified or certified to perform such activities, they were not aware of the precautions necessary to preclude unintended exposures. Accordingly, these two violations have been categorized collectively as a Severity Level III problem, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600.

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 CCC has not been the subject of 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 described in Section VI.C.2 of the Enforcement Policy. Your corrective actions for the violations included the locking of the shutter upon the arrival of the alternate Radiation Safety Officer to the scene, contacting the gauge service company for additional assistance, the retraining of all employees on June 17, 2002, the installation of signs adjacent to each gauge containing the trefoil symbol and stating "Caution Radioactive Device in Use. Do Not Disturb or Remove," the prompt notification of the NRC regarding the details of the event, and the incorporation of the details of this event into training materials such that all employees, including new hires, would be made aware of the event and necessary precautions. Based on the above, the NRC concluded that your actions were prompt and comprehensive, and credit was warranted for the factor of Corrective Action.

Therefore, to encourage prompt and comprehensive correction of violations and in recognition of the absence of previous escalated enforcement action, I have been authorized to propose that no civil penalty be assessed in this case. However, similar violations in the future could result in further escalated enforcement action. 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. 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 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. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

If you have any questions about this inspection, please contact Mr. Douglas Collins, Director, Division of Nuclear Materials Safety, at (404) 562-4700.

		Sincerely,
		BMALLET FOR
		Luis A. Reyes Regional Administrator

Docket No: 030-33571
License Nos: 47-25301-01

Enclosure: Notice of Violation

cc w/encl:
State of West Virginia

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NOTICE OF VIOLATION

Catenary Coal Company Eskdale, West Virginia

Docket No. 030-33571 License No. 47-25301-01 EA-02-165

During an NRC inspection conducted on June 24 and 25, 2002, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, (Enforcement Policy), the violations are listed below:

A.

License Condition 14 states, in part, that removal from service or any similar activity with devices containing licensed material shall be performed only by persons specifically licensed by the Commission or an Agreement State to perform such services. Contrary to the above, on June 13, 2002, licensee personnel removed from service a Texas Nuclear Model 5202 gauge containing 357 millicuries of Cesium 137 (Cs-137). These persons were not specifically licensed by the Commission or an Agreement State to perform such services.

B.

License Condition 18 states, in part, that the licensee shall assure that the shutter mechanism to the gauge is locked in the closed position during periods when a portion of an individual's body may be subject to the direct radiation beam. Contrary to the above, on June 13, 2002, licensee personnel failed to assure that the shutter mechanism of a Texas Nuclear Model 5202 gauge containing 357 millicuries of Cs-137 was locked in a closed position when a portion of an individual's body may have been subject to the direct radiation beam during removal from service activities.

This is a Severity Level III problem (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Catenary Coal Company is hereby required to submit a written statement or explanation to the U. S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555, with a copy to the Regional Administrator, Region II, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation or severity level, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) the date when full compliance will be achieved. Your response may reference or include previously 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. Where good cause is shown, consideration will be given to extending the response time.

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.

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. 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 21^st day of August 2002