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EA-03-176 - Menominee County Road Commission

October 31, 2003

EA-03-176

Darrell W. Moilanen
Engineer-Manager
Menominee County Road Commission
P.O. Box 527
Stephenson, MI 49887

SUBJECT: NOTICE OF VIOLATION
(NRC ROUTINE INSPECTION REPORT NO. 030-31032/2003-001(DNMS))

Dear Mr. Moilanen:

This refers to the routine inspection conducted on August 25, 2003, at the Menominee County Road Commission facility, Stephenson, Michigan, with continued in-office review through October 1, 2003. The inspection was an examination of activities conducted under your license and consisted of a selected examination of procedures and representative records, observations of activities, and interviews with personnel. Two apparent violations were identified during the inspection involving the security and control of license materials and the location of shipping papers during transportation activities. The enclosed report presents the results of this inspection.

In a telephone conversation on October 1, 2003, Ken O'Brien and Sam Mulay of my staff informed you and John St. Juliana, Radiation Safety Officer, of the results of the inspection and that the NRC was considering escalated enforcement for the apparent violation involving the failure to secure from unauthorized access or maintain constant surveillance over radioactive materials. Messrs. O'Brien and Mulay also informed you and Mr. St. Juliana that we had sufficient information regarding the apparent violation 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 that a predecisional enforcement conference or written response was not needed.

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 of the Notice involves the failure to secure from unauthorized access or maintain constant surveillance over licensed materials in an unrestricted area. During the inspection on August 25, 2003, the NRC identified that an operator left an unlocked moisture density gauge unsecured when he went to his vehicle and did not maintain constant surveillance of this device.

Although there were no actual radiation safety consequences associated with this violation, the failure to secure from unauthorized access or maintain constant surveillance over licensed materials is a significant safety issue. Implementation of adequate security measures is intended to prevent the loss or theft of licensed materials and to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level III.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3000 is considered for a Severity Level III violation. 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 is warranted for corrective actions that included: (1) issuing a letter of reprimand to the individual involved with the violation; (2) conducting a retraining session with the individual and other authorized users to re-enforce policies on the strict security of gauges at all times; and (3) subsequent to the retraining, performing audits and observations of the involved user at temporary job sites, with no discrepancies or similar issues identified.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement actions, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes an escalated enforcement action, that may subject you to increased inspection effort.

Violation B of the Notice involves the failure to ensure that the shipping paper is readily available to, and recognizable by, authorities in the event of an accident or inspection. During the inspection, the NRC determined that a gauge operator transported a moisture density gauge with the shipping paper in the gauge case in the rear of the vehicle. Corrective action for this violation included instructing the individual user to maintain the shipping paper accessible in the driver's compartment and not in the shipping container when transporting the gauge. This violation has been categorized in accordance with the Enforcement Policy at Severity Level IV.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in Inspection Report No. 030-31032/2003-001(DNMS). Therefore, you are not required to respond to this letter unless the description in the inspection report 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 enclosures, and your response, if any, will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which 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. The NRC also includes Issued Significant Enforcement Actions on its Web site.

  Sincerely,
/RA/
James L. Caldwell
Regional Administrator

Docket No. 030-31032
License No. 21-26025-01

Enclosures:
1. Notice of Violation
2. Inspection Report

NOTICE OF VIOLATION

Menominee County Road Commission
Stephenson, Michigan		   Docket No. 030-31032
License No. 21-26025-01
EA-03-176

During an NRC inspection conducted between August 25 and October 1, 2003, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

  A. 10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in controlled or 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.

Condition 19 of License Number 21-26296-01 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 August 25, 2003, the licensee did not secure from unauthorized removal or limit access to a moisture density gauge containing nominally 8.0 millicuries of cesium-137 and 40 millicuries of americium-241:beryllium in an unrestricted area at a temporary job-site in Bagley, Michigan, nor did the licensee control and maintain constant surveillance of this licensed material. Additionally, the licensee failed to lock the gauge when not under the direct surveillance of an authorized user.

This is a Severity Level III violation (Supplement IV).
B. 10 CFR 71.5(a) requires that a licensee who transports licensed material outside of the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers 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 through 189.

49 CFR 177.817(e) requires, in part, that the driver of a motor vehicle containing hazardous material ensure that the shipping paper is readily available to, and recognizable by, authorities in the event of accident or inspection. Specifically, (i) when the driver is at the vehicle's controls, the shipping paper is: (a) within his immediate reach while he is restrained by the lap belt; and (b) either readily visible to a person entering the driver's compartment or in a holder which is mounted to the inside of the door on the driver's side of the vehicle; and (ii) when the driver is not at the vehicle's controls, the shipping paper is:

    (a) in a holder which is mounted to the side of the door on the driver's side of the vehicle; or (b) on the driver's seat in the vehicle. Pursuant to 49 CFR 172.101, radioactive material is classified as a hazardous material.

Contrary to the above, on August 25, 2003, the licensee transported a Troxler moisture density gauge Model No. 3440, Serial No. 17129, containing nominally 8.0 millicuries of cesium-137 and 40.0 millicuries of americium-241:beryllium, on a public highway, and the driver of the vehicle did not ensure that the shipping paper was readily available in the driver's compartment, as required. Specifically, when the gauge was being transported, the shipping paper was located in the gauge transport case in the rear of the vehicle.

This is a Severity Level IV violation (Supplement V).

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in Inspection Report No. 030-31032/2003-001(DNMS). However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description in the inspection report 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; EA-03-176," 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, Suite 255, Lisle, 60532-4351, 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 made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which 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 2003.

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