EA-02-225 - Reliant Energy

October 31, 2002

EA 02-225

Joseph J. Wagner, Jr.Vice President
Reliant Energy
1001 Broad Street
Johnstown, PA 15907

SUBJECT:

NOTICE OF VIOLATION

Dear Mr. Wagner:

This refers to the NRC inspection conducted via telephone on September 23 - 27, September 30, and October 3, 2002, of your facility located in Springdale, Pennsylvania, to review the activities authorized by your NRC license. Additional information provided in your correspondence dated September 30, 2002 (received October 1 and 3, 2002), was also examined as part of the inspection. During the inspection, four apparent violations of NRC requirements were identified. The apparent violations were described to your staff during an exit telephone call at the conclusion of the inspection on October 3, 2002.

On October 24, 2002, Mr. Frank Costello of the NRC Region I staff, held a telephone conversation with you, indicating that the NRC did not need any additional information to make an enforcement decision regarding these violations. However, Mr. Costello provided you an opportunity to attend a predecisional enforcement conference or to provide a written response prior to the NRC determining appropriate enforcement action in this case. During that conversation, you declined the opportunity to attend a conference or to provide a written response.

Based on the information developed during the inspection, the NRC has determined that four violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice). The violations involved: (1) the failure to properly supervise individuals working with licensed radioactive materials, (2) the failure to employ an individual to perform the duties of the Radiation Safety Officer (RSO), (3) the failure to notify the NRC regarding a change in your company ownership that occurred in February 2002, and (4) the failure to perform a periodic (at least annual) review of the radiation protection program.

With respect to the first two violations, you stated during the inspection, that one of the two individuals listed on your license took another position in your company which did not involve supervision of licensed activities in May 2000, and the other individual, who was also listed as the RSO, was transferred to another location in May 2001. The individuals were not immediately replaced with qualified users to supervise licensed activities or with a qualified RSO. Therefore, for a period of time from May 2001, until a replacement RSO was assigned in June 2002, there were no qualified users to supervise other untrained and unqualified individuals working with licensed materials. With respect to the third violation, you stated that the failure to notify the NRC regarding the change of ownership in February 2002, was due to your remaining staff's belief that since the changes involved corporate management and there were no changes made at the management level at the Cheswick Plant, then there was no transfer of control of licensed activities. Notwithstanding your staff's initial belief, you later acknowledged that this change in ownership did constitute a transfer of control of licensed activities.

Although the analytical instruments used in your licensed activities contained low activity radioactive sources (approximately 10 millicuries of cesium-137 and 22 millicuries of californium-222), and the individual users did not typically come into direct contact with the instruments, these three violations are of concern to the NRC because if the source had been lost or damaged, or if the source shutter had become stuck in the open position, your untrained and unqualified staff may not have known who to contact for safety instructions. Such sources could result in substantial unintended radiation dose to an individual if the shutter became stuck in the open position, or if the source is removed from the instrument. Therefore, these violations are categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for Severity Level III violations. Because your facility has not been the subject of escalated enforcement action within the last two years or 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 for corrective actions is warranted because your corrective actions, once the violations were identified during the inspection, were considered prompt and comprehensive. These corrective actions included, but were not limited to: (1) submitting an amendment to your NRC license including the names of the new RSO and supervising personnel, as well as information regarding your change in ownership, (2) providing training to individuals within your company regarding the regulatory requirements and proper use of the gauges, and (3) performing a review of the radiation protection program.

Therefore, to encourage prompt and comprehensive correction of violations, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation for the Severity Level III violations with no civil penalty. However, you should be aware that significant violations in the future could result in a civil penalty. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

In addition, the fourth violation, involving the failure to perform periodic reviews of the radiation protection program, is also described in the enclosed Notice and is classified at Severity Level IV.

The NRC has concluded that information regarding your corrective actions taken and planned to correct the violations and prevent recurrence have been described as documented in this letter.

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. We appreciate your cooperation with us in this matter.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, 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/	James T. Wiggins Acting For
		Hubert J. Miller Regional Administrator

Docket No. 03031928
License No. 37-06424-06

Enclosure: Notice of Violation

cc w/encl: Commonwealth of Pennsylvania

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ENCLOSURE

NOTICE OF VIOLATION

Reliant Energy Springdale, Pennsylvania

Docket No. 03031928 License No. 37-06424-06 EA 02-225

During an NRC inspection conducted via telephone from September 23 through October 3, 2002, four 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:

A.	License Condition 11.A. requires that licensed material be used by, or under the supervision of Gregg E. Fleischman or James R. Pfennigwerth. Contrary to the above, from May 2001 until September 2002, licensed material was used at the facility by individuals other than Gregg E. Fleischman or James R. Pfenningwerth, and those individuals using the materials were not under the supervision of Mr. Fleischman or Mr. Pfenningwerth. Mr. Fleischman stopped supervising licensed activities in May 2000, and Mr. Pfenningwerth stopped supervising licensed activities in May 2001. This is a Severity Level III violation (Supplement VI).
B.	License Condition 11.B. requires that the Radiation Safety Officer of the license be James R. Pfenningwerth. Contrary to the above, from May 2001 until September 2002, the Radiation Safety Officer of the license was not James R. Pfenningwerth. Specifically, in May 2001, Mr. Pfenningwerth took another position within the company at a facility outside of the Commonwealth of Pennsylvania, and, after that time, he was not performing the duties of the Radiation Safety Officer. A qualified individual was assigned by the licensee as the new RSO in June 2002, but the new RSO was not added to the NRC license until September 2002. This is a Severity Level III violation (Supplement VI).
C.	10 CFR 30.34(b) requires, in part, that no license issued or granted pursuant to the regulations in 10 CFR 30 nor any right under a license, be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission, after securing full information, finds that the transfer is in accordance with the provisions of the Act and gives its consent in writing. Contrary to the above, on February 19, 2002, the licensee's parent company, Orion Power Holdings, merged with a subsidiary of Reliant Resources, Inc. and became a wholly-owned subsidiary of Reliant Resources, Inc. This merger resulted in the formation of a company known as Reliant Energy and Reliant Resources, Inc., a non-licensee. Reliant Energy and Reliant Resources, Inc. came to control the licensed activities of the licensee formerly known as Orion Power Midwest, L.L.P., without providing the required information to the Commission, and without the Commission giving its consent in writing. This is a Severity Level III violation (Supplement VI).
D.	10 CFR 20.1101(c) requires that the licensee periodically (at least annually) review the radiation safety program content and implementation. Contrary to the above, from May 1991 until September 2002, the licensee did not periodically (at least annually) review the radiation safety program content and implementation. This is a Severity Level IV violation (Supplement IV).

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 are already adequately addressed on the docket in the NRC letter transmitting this Notice. Therefore, no response to this Notice is 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 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.

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 31st day of October 2002