EA-03-190 - State of Alaska Department of Transportation & Public Facilities

March 15, 2004

EA-03-190
NMED No. 011072

Mr. Michael Barton, Commissioner
State of Alaska Department of
Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 99801

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES - $21,000 (NRC Inspection Report No. 030-07710/01-001 and Investigation Report No. 4-2002-001)

Dear Mr. Barton:

This refers to the predecisional enforcement conference conducted with the State of Alaska Department of Transportation & Public Facilities (ADOT&PF) in Arlington, Texas on November 18-19, 2003. The conference was conducted to discuss several apparent violations related to radiation exposures of several members of the public in excess of NRC's regulatory limit of 0.1 rem per year, and an apparent violation of NRC's employee protection requirements, i.e., 10 CFR 30.7. The apparent violation of 10 CFR 30.7 has been processed separately and is the subject of separate correspondence.

With regard to the radiation exposure issues, ADOT&PF reported that several of its employees (who were not radiation workers) received radiation exposures in excess of NRC's limit during the years 1996-1999. These employees worked in offices near a portable nuclear gauge storage area at your facility in Anchorage, Alaska. At the conclusion of our follow-up inspection and investigation activities, on October 15, 2003, we communicated the apparent violations to your staff by telephone, including our concern that willfulness may have been involved in two of the apparent violations. We documented our preliminary findings in the subject inspection report, issued on October 23, 2003.

During the predecisional enforcement conference, ADOT&PF representatives indicated their agreement with all but one of the apparent violations described in the inspection report, and provided us their perspective that willfulness was not involved in any of the violations. ADOT&PF's representatives did not agree that there was a violation of 10 CFR 20.2203(a)(2)(iv), involving the requirement to submit a written report to NRC within 30 days after learning of doses in excess of the limits for individual members of the public. Specifically, ADOT&PF representatives stated that from February 2000 to October 15, 2001, they were evaluating the exposure question, but a determination that overexposures had occurred was not made until October 16, 2001. ADOT&PF subsequently transmitted a written report to NRC on November 15, 2001, within the required 30 days. Based on the clarifying information provided at the conference, we agree that a violation of this requirement did not occur.

During the conference, ADOT&PF managers described corrective actions to the apparent violations, which included: (1) relocating the nuclear gauges in May 2000 to an area which provides sufficient distance from offices where personnel are located; (2) hiring a contractor to perform evaluations of the current nuclear gauge storage locations throughout Alaska; (3) providing the Statewide Radiation Safety Officer and three Regional Radiation Safety Officers with 40 hours of radiation safety training; and (4) planning to hire an independent consultant to assume some of the radiation safety functions such as training nuclear gauge users, performing certain radiation safety audits, and developing procedures, as needed. At the conference, your managers also discussed continuing problems with the radiation safety program.

By letter dated December 18, 2003, ADOT&PF submitted to the NRC its contractor's "Re-evaluation of Potential Radiation Exposures." The calculated doses in the re-evaluation were lower than those previously reported, but still indicated several exposures in excess of NRC limits for members of the public. Based on our review of your revised dose calculations, we are in agreement that between 1996 and 1998 there were at least five instances of ADOT&PF employees exceeding the NRC's annual dose limit for members of the public. (Note: The exposures were to three different individuals. One individual received a dose in excess of NRC's limit in calendar years 1996, 1997, and 1998; a second individual received a dose in excess of NRC's limit in calendar year 1997, and a third individual received a dose in excess of NRC's limit in calendar year 1997.) Although these five instances were in excess of NRC's annual public exposure limit of 0.1 rem, none of the exposures were in excess of 10 percent of the 5.0 rem per year limit for radiation workers.

Based on the information developed during our inspection and investigation, and our consideration of the information that you provided during and after the conference, the NRC has determined that three willful violations of NRC requirements occurred. These violations are described in the enclosed Notice of Violation (Notice). A summary of the violations and the bases for our enforcement decision are provided in the next several paragraphs.

Violation A involves at least five instances of radiation exposures in excess of NRC's annual public exposure limit of 0.1 rem. The radiation exposures were a direct result of storing the gauges in close proximity to employee offices.

Violation B involves the failure to perform surveys appropriate to demonstrate compliance with NRC dose limits for individual members of the public, and involves two examples. The first example of Violation B involves the failure to evaluate the radiation levels in the affected office space before it was occupied or the likely dose to employees who would occupy the affected office space. The second example of Violation B involves the failure to evaluate the radiation doses received by nine employees while they were occupying the affected office space.

Violations A and B are of particular concern because each involved willfulness, specifically a careless disregard for NRC requirements. Despite knowledge of the potential for radiation exposure to these employees from the stored nuclear gauges, ADOT&PF assigned these employees to, and permitted occupancy of, the affected office space without first attempting to ascertain the radiation levels or the likely dose to the employees from the stored gauges. Also, despite knowledge of the potential for radiation exposure to these employees from the stored nuclear gauges, ADOT&PF did not evaluate the radiation dose received by the nine individuals until after the individuals were no longer in close proximity to the stored nuclear gauges. ADOT&PF did not commence evaluation of the dose received until after one individual requested an evaluation of his dose, and until after the NRC prompted ADOT&PF to evaluate doses received by other individuals who had occupied the affected office space. Of additional concern is the fact that the NRC issued a Notice of Violation to ADOT&PF in 1997 for a failure to perform appropriate surveys (i.e., evaluations) to demonstrate compliance with NRC dose limits for members of the public. Although your staff had committed in 1997 to taking actions to correct the violation, it appears that corrective actions were not adequate to address the potential for radiation exposures from the gauge storage area.

Violation C involves a failure to provide copies of two exposure reports to six affected individuals at the same time that those reports were submitted to the NRC in August 2003. This violation is of particular concern because it was willful. ADOT&PF was aware of the requirement, but did not provide copies of the reports to the six affected individuals until September 5, 2003, after prompting by the NRC several days earlier.

One other apparent violation was discussed during the conference, involving your staff's apparent failure to implement a radiation safety program commensurate with the scope and extent of licensed activities and sufficient to ensure compliance with the provisions of 10 CFR Part 20, "Standards For Protection Against Radiation." See 10 CFR 20.1101(a). During the conference, ADOT&PF representatives acknowledged a significant deterioration in complying with NRC requirements. This significant deterioration is evidenced by ADOT&PF's failure to meet two of the most fundamental requirements contained in 10 CFR Part 20: the evaluation of radiation doses resulting from licensed activities and making every reasonable effort to maintain exposures to radiation "as low as reasonably achievable" (ALARA). The failure to meet 10 CFR 20.1101(a) is not being cited separately in the enclosed Notice because it is subsumed by the violations described above. Nevertheless, it appears that substantial improvement in the management and implementation of the radiation safety program is needed for ADOT&PF to ensure sustained compliance with regulatory requirements and improve its ALARA program. Accordingly, your response to this enforcement action should include a description of actions to improve and sustain the radiation protection program in accordance with NRC requirements and the conditions of your license.

In assessing the significance of Violations A, B and C, the NRC considered the circumstances associated with each violation, including willfulness, and classified the violations in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. Because ADOT&PF's failure to perform appropriate surveys contributed to the overexposures, both Violations A and B have been classified collectively as a Severity Level II problem. Violation C has been classified as a Severity Level III violation. In accordance with the Enforcement Policy, a civil penalty with a base value of $4,800 is considered for a Severity Level II problem and a civil penalty with a base value of $3,000 is considered for a Severity Level III violation.⁽¹⁾ The NRC assessed each problem and violation in accordance with the civil penalty assessment process described in Section VI.C.2 and VII.A of the Enforcement Policy, as discussed below.

Violations A and B normally would be classified at Severity Level III because they resulted in exposures to members of the public above 0.1 rem per year (the NRC limit) but below 0.5 rem per year. See Enforcement Policy, Supplement IV.C.4. Violations A and B, however, were classified as a Severity Level II problem because willfulness was involved. See Enforcement Policy Section IV.A.4. The NRC considered both the Identification and Corrective Action factors with respect to Violations A and B since willfulness was involved. ADOT&PF is not deserving of identification credit because of missed opportunities to have identified the violations earlier, and not deserving of corrective action credit because of the extent of NRC involvement in causing ADOT&PF to evaluate the exposure issues and develop corrective actions. This would result in the assessment of a civil penalty at twice the base value, or $9,600. Nonetheless, the NRC has decided to exercise discretion, as provided for in Section VII.A.1 of the Enforcement Policy, to assess a $15,000 civil penalty. This decision is based, in part, on (1) multiple instances of individuals receiving doses in excess of NRC's annual limits; (2) the willfulness that resulted in these doses; and (3) particularly poor performance in implementing the radiation safety program, including the missed opportunities to have identified this problem earlier and taken action to prevent some of the exposures.

Violation C, the failure to provide reports to six affected individuals no later than when the reports were provided to the NRC, normally would be classified at Severity Level IV, but was classified at Severity Level III because willfulness was involved. The NRC considered both the Identification and Corrective Action factors since willfulness was involved. ADOT&PF is not deserving of identification credit because ADOT&PF was aware of the requirement to provide notice to the affected individuals but did so only after prompting by the NRC. Further, ADOT&PF did not fully identify the problem requiring corrective action in that its root cause analysis was too narrowly focused on the actions of only one individual even though other causes were involved (e.g., NRC personnel reminded a member of management of this requirement on several occasions during the course of the inspection, and there appear to have been other administrative failures such as procedural inadequacies). ADOT&PF is not deserving of corrective action credit because, at the time of the conference, corrective actions were not comprehensive (i.e., no specific actions to evaluate its internal policies and procedures) to prevent recurrence of this violation. This results in a civil penalty of $6,000 for this violation, and total civil penalties of $21,000 for Violations A, B and C.

Therefore, to emphasize the fundamental importance of maintaining a radiation safety program that is capable of monitoring radiation exposures and assuring compliance with NRC's radiation dose limits, and the significance that NRC attaches to willful violations, I have been authorized, after consultation with the Director, Office of Enforcement and the Deputy Executive Director for Materials, Research, and State Programs, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalties (Notice) in the total amount of $21,000. In addition, issuance of this Notice constitutes escalated enforcement action, which may subject ADOT&PF 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 the required response to the Notice, please include information requested above regarding improvements in ADOT&PF's radiation safety program. 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 2.390 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and 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. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		Bruce S. Mallett Regional Administrator

Docket No. 030-07710
License No. 50-14102-01

Enclosures:
1. Notice of Violation & Proposed Imposition of Civil Penalties
2. NUREG/BR-0254 Payment Methods (Licensee only)

cc: w/Enclosure 1 only:

State of Alaska Radiation Control Program Director

Mr. Douglas Dasher
Alaska Department of Environmental Conservation
Northern Regional Office
610 University Avenue
Fairbanks, Alaska 99709

Mr. Gary Hogins
Deputy Chief Engineer
State of Alaska Department of Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 99801

Mr. Michael SanAngelo
Statewide Materials Engineer
State of Alaska Department of Transportation & Public Facilities
5800 East Tudor Road
Anchorage, Alaska 99507

Mr. Gary W. Gantz
Assistant Attorney General
State of Alaska Department of Law
1031 West 4^th Avenue, Suite 200
Anchorage, Alaska 99501-5903

Ms. Billie P. Garde, Esq.
Law Office
Clifford & Garde
1620 L Street, N.W., Suite 625
Washington, DC 20036

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Enclosure 1

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTIES

Alaska Department of Transportation & Public Facilities Anchorage, Alaska

Docket No. 030-07710 License No. 50-14102-01 EA-03-190

During an NRC inspection and investigation completed on October 15, 2003, 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 civil penalties 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 penalties are set forth below:

A.

10 CFR 20.1301(a)(1) requires, in part, that the licensee conduct operations so that the total effective dose equivalent to individual members of the public from licensed operations not exceed 0.1 rem in a year. Pursuant to 10 CFR 20.1003, member of the public means any individual except when that individual is receiving an occupational dose, and occupational dose means the dose received by an individual in the course of employment in which the individuals' assigned duties involve exposure to radiation or to radioactive material. Contrary to the above, from 1996 and through 1998, the licensee failed to conduct operations so that the total effective dose equivalent to individual members of the public from licensed operations did not exceed 0.1 rem in a year. Specifically, licensee employees, with no assigned duties involving exposure to radiation or to radioactive material, occupied office space in close proximity to stored nuclear gauges at the licensee's Anchorage, Alaska facility. As a direct result, three such employees received total effective dose equivalents in excess of 0.1 rem per year: Subject B in the years 1996, 1997 and 1998; Subject C in the year 1997; and Subject G in the year 1997.

B.

10 CFR 20.1302(a) requires, in part, that the licensee shall make or cause to be made, as appropriate, surveys of radiation levels in unrestricted and controlled areas to demonstrate compliance with the dose limits for individual members of the public in 10 CFR 20.1301. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation. When appropriate, such an evaluation includes a physical survey of the location of radioactive material and measurements or calculations of levels of radiation, or concentrations or quantities of radioactive material present. Pursuant to 10 CFR 20.1003, member of the public means any individual except when that individual is receiving an occupational dose, and occupational dose means the dose received by an individual in the course of employment in which the individuals' assigned duties involve exposure to radiation or to radioactive material. Contrary to the above, the licensee failed to make or cause to be made, as appropriate, surveys of radiation levels in unrestricted and controlled areas to demonstrate compliance with the dose limits for individual members of the public in 10 CFR 20.1301. (1) Specifically, between 1994 and 2000, at least 9 licensee employees with no assigned duties involving exposure to radiation or to radioactive material began occupying office space in close proximity to a nuclear gauge storage area. Before the individuals began occupying the affected office space, the licensee did not measure the levels of radiation which those individuals would experience or calculate their likely dose from the stored gauges (2) Specifically, between 1994 and May 2000, at least 9 licensee employees with no assigned duties involving exposure to radiation or to radioactive material occupied office space in close proximity to a nuclear gauge storage area. The licensee did not commence evaluating the radiation dose received by the individuals until after February 2000, soon after one individual ceased occupying the affected office space, and until March 2003 for the eight other individuals.

Violations A and B represent a Severity Level II problem (Supplement IV).
Civil Penalty - $15,000

C.

10 CFR 20.2205 requires, in part, that when a licensee is required, pursuant to the provisions of 10 CFR 20.2203, to report to the Commission an exposure, to radiation or radioactive material, of an identified member of the public, the licensee shall also provide a copy of the report submitted to the Commission to the individual. This report must be transmitted at a time no later than the transmittal to the Commission. 10 CFR 20.1003 provides in part that member of the public means any individual except when that individual is receiving an occupational dose, and that occupational dose means the dose received by an individual in the course of employment in which the individuals' assigned duties involve exposure to radiation or to radioactive material. Contrary to the above, the licensee failed to provide copies of reports submitted to the Commission pursuant to the provisions of 10 CFR 20.2203, to six identified members of the public at a time no later than transmittal of the reports to the Commission. Specifically, on August 6, 2003, and August 11, 2003, NRC received two different reports submitted by the licensee pursuant to the provisions of 10 CFR 20.2203. Each report evaluated the radiation exposures to eight employees with no assigned duties involving exposure to radiation or to radioactive material, and concluded that some of them had received radiation exposures in excess of NRC's regulatory limit for members of the public. However, the licensee did not provide copies of the two reports to the affected individuals until September 5, 2003.

This is a Severity Level III violation (Supplement IV).
Civil Penalty - $6,000

Pursuant to the provisions of 10 CFR 2.201, the State of Alaska Department of Transportation & Public Facilities (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 Penalties (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation: EA-03-190" 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. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalties 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, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalties 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 the time specified, an order imposing the civil penalties will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalties, 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(s) 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 penalties should not be imposed. In addition to protesting the civil penalties, in whole or in part, such answer may request remission or mitigation of the penalties.

In requesting mitigation of the proposed penalties, 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 civil penalties.

Upon failure to pay any civil penalties due which subsequently have been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalties, 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 responses noted above (Reply to Notice of Violation, statement as to payment of civil penalties, and Answer to a Notice of Violation) should be addressed to: Mr. 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 76011.

Because your response will be made available electronically for public inspection in the NRC Public Document Room or from the 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 2.390(b) to support a request for withholding confidential commercial or financial information).

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

Dated this 15^th day of March 2004

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1. For the purpose of considering civil penalties, ADOT is considered to fall into the "small materials user" in Category "e" of Table 1A of the Enforcement Policy.