EA-03-226 - CTI Consultants, Inc.

March 3, 2004

EA-03-226
NMED No. 030892

Mr. Stephen L. Ripplinger
Corporate Radiation Safety Officer
CTI Consultants, Inc.
14221-B Willard Road
Chantilly, VA 20151

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $3,000 (NRC Inspection Report No. 45-23031-01/2003-001)

Dear Mr. Ripplinger:

This refers to the NRC inspection conducted on November 19, 2003, at your facility located in Chesapeake, Virginia, and at a temporary job site located in the Chesapeake, Virginia area, to review the circumstances associated with the temporary loss of a portable moisture density gauge containing an 11 millicurie cesium-137 source and a 40 millicurie americium-241 source. You reported this loss to the NRC by telephone on November 3, 2003, and you followed up that verbal report with a letter dated November 4, 2003, wherein you described the event and corrective actions taken to prevent recurrence. As described in the NRC inspection report sent to you on January 9, 2004, two apparent violations of NRC requirements were identified during the NRC inspection.

In our January 9, 2004 letter forwarding the inspection report, you were provided the opportunity to request a predecisional enforcement conference or to respond to the apparent violations in written correspondence to the NRC. On January 22, 2004, you spoke via telephone with Mr. Thomas Decker of the NRC Region I staff, indicating that CTI declined the opportunity to attend a predecisional enforcement conference, but would respond in writing regarding the apparent violations. In your response, dated February 6, 2004, you stated that CTI agreed that the violations occurred as stated in the referenced inspection report. In addition, you provided the additional corrective actions that have been implemented to prevent recurrence of the violations. You also provided an estimated cost of disposal for the gauge ($500).

Based on the information developed during the inspection, and the information provided in your response, the NRC has determined that two violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The first violation involved the failure to maintain control of the gauge containing the cesium-137 and americium-241 radioactive sources, which resulted in the temporary loss of the gauge. This violation occurred when the gauge user left the gauge unsecured in the bed of his pick-up truck, while he drove the truck to a temporary job site. As the gauge user drove down a public highway, the gauge fell out of the back of the truck. The gauge user realized that he had lost the gauge about 15 minutes later, and reported the loss to the Radiation Safety Officer for CTI Consultants. The gauge was found by the local police soon after the loss and the undamaged gauge was returned to CTI Consultants. Although the source was in the shielded condition at the time it was lost and there was a relatively short length of time that the source was lost, this violation is of concern to the NRC because (1) the failure to control the gauge resulted in the temporary loss of radioactive material in the public domain; and (2) such sources can result in substantial unintended radiation dose to an individual if the source is removed from the shielded position. Therefore, this violation is 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 a Severity Level III violation involving the loss of control of radioactive material with this level of radioactivity. Because your facility has been the subject of an escalated enforcement action within the last two inspections⁽¹⁾, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Credit for identification is warranted because you identified and reported the loss to the NRC. Credit for corrective action is warranted because your corrective actions were considered prompt and comprehensive. These corrective actions included, but were not limited to: (1) re-instructing all gauge users emphasizing compliance with all NRC and CTI requirements; and (2) implementing a policy that requires the Radiation Safety Officers to conduct spot checks on gauge users to verify that they are conducting business safely.

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 the normal 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). 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 base amount of $3,000 for the Severity Level III violation. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Based on the results of this inspection, the NRC has also determined that one additional Severity Level IV violation of NRC requirements occurred. This violation involved the failure to block and brace a portable gauge containing radioactive materials during transportation conditions as required by DOT regulations. This violation is fully described in the subject inspection report and is also cited in the attached Notice.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you may reference any previous correspondence that is applicable to this case to avoid repetitive submissions. 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 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. 03020195
License No. 45-23031-01

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

cc w/encl:
Commonwealth of Virginia

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ENCLOSURE

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

CTI Consultants, Inc. Chantilly, Virginia

Docket No. 03020195 License No. 45-23031-01 EA-03-226 NMED No. 030892

During an NRC inspection conducted on November 19, 2003, two 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 NRC proposes 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 violations and associated civil penalty are set forth below:

I.	VIOLATION ASSESSED A CIVIL PENALTY 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. Contrary to the above, on November 3, 2003, the licensee failed to control and maintain constant surveillance of a portable gauge containing 11 millicuries of cesium-137 and 40 millicuries of americium-241 in a controlled or restricted area. Specifically, the licensee failed to secure the gauge during transport on that date and the gauge fell off the transport vehicle and was lost on a public highway, which is an unrestricted area. This is a Severity Level III violation (Supplement VI). Civil Penalty – $3,000
II.	VIOLATION NOT ASSESSED A CIVIL PENALTY 10 CFR 71.5(a) requires, in part, that a licensee who transports licensed material outside of the site of usage, on public highways, 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 177.842(d) requires that packages containing radioactive material must be so blocked and braced that they cannot change position during conditions normally incident to transport. Contrary to the above, on November 3, 2003, the licensee transported on a public highway in Virginia, a portable gauge containing 11 millicuries of cesium-137 and 40 millicuries of americium-241, which was not blocked and braced. Specifically, the gauge was placed in the bed of a licensee truck without being secured to, or in any other way affixed to, the truck, and the gauge fell off the truck and was lost on a public highway. This is a Severity Level IV violation (Supplement V).

Pursuant to the provisions of 10 CFR 2.201, CTI Consultants, Inc. (the Licensee) is 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 Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation, EA-03-226" 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 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.

Within the same time as provided for the response required above under 10 CFR 2.201, 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, 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, EA-03-226" and may: (1) deny the violations 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 234c 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: F. 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 I.

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 or proprietary 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 2.790(b) to support a request for withholding confidential commercial or financial information).

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

Dated this 3rd day of March 2004.

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¹ A Severity Level III violation and a $3,000 civil penalty were issued on July 23, 2002 (EA-02-080), for the failure to maintain surveillance of a gauge that resulted in damage to the gauge.