EA-04-092 - Imaging Subsurface, Inc.

August 17, 2004

EA-04-092

Dr. Rakesh Sarman, President
Imaging Subsurface, Inc.
P.O. Box 1019
Novi, MI 48376-1019

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $3,000 [NRC Inspection Report No. 03034616/2004001(DNMS)]

Dear Dr. Sarman:

This refers to the inspection conducted on April 20 and 21, 2004, at your facility in Detroit, Michigan, to follow up on a Severity Level III violation issued by the U.S. Nuclear Regulatory Commission (NRC) to Imaging Subsurface, Inc. (Licensee) on February 6, 2004 (EA-03-223). That violation concerned the failure on October 17, 2003, to secure NRC-licensed materials at your facility from unauthorized removal or access. Several apparent violations were identified during the inspection on April 20 and 21, 2004, including the apparent failures to secure NRC-licensed materials from unauthorized removal or access while en route to and at temporary job sites, to lock a portable moisture density gauge containing licensed materials, and to have shipping papers readily available when transporting licensed materials. A copy of the report from the April 2004 inspection was provided to you on May 19, 2004, and an open predecisional enforcement conference was held with you in the Region III office, Lisle, Illinois, to discuss the apparent violations described in the inspection report, the significance and root causes of the violations, and your corrective actions.

Based on the information developed during the inspection and the information that you provided during the predecisional enforcement conference, the NRC has determined that three violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in NRC Inspection Report No. 03034616/2004001(DNMS). Violation A concerns the security of NRC-licensed materials consisting of approximately 8 millicuries of cesium-137 and 40 millicuries of americium-241 in a Troxler Model No. 3440 gauge, Serial No. 30985. In summary, an employee of Subsurface Inspection, Inc., transported the Troxler gauge outside of your facility in Detroit, Michigan, to temporary job sites on several occasions from February 18 through February 23, 2004. The vehicle used by the employee to transport the gauge was not equipped to secure the gauge from unauthorized removal or access. Also, the employee did not control or maintain constant surveillance of the licensed materials while unattended at temporary job sites or at stops en route to the sites.

The failure to secure or maintain surveillance over NRC-licensed material in any aggregate quantity greater than 1,000 times the quantity specified in Appendix C to 10 CFR Part 20 is categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III violation. The quantity specified in Appendix C to 10 CFR Part 20 for americium-241 is 0.001 microcuries. The Troxler gauge, Model No. 3440 (Serial No. 30985) contained nominally 40 millicuries of americium-241 which is an amount in excess of 1,000 times the quantity of americium-241 specified in the regulation. Therefore, the failure to secure NRC-licensed materials from unauthorized removal or access is categorized in accordance with the Enforcement Policy as a Severity Level III violation (Violation A).

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III violation. Because your facility has been the subject of an escalated enforcement action within the last 2 years,⁽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 was not warranted for the Identification factor because Violation A was identified by the NRC. Credit was given for the Corrective Action factor. Corrective actions included modifying the truck to secure a gauge containing NRC-licensed materials from unauthorized removal, creating a program of quarterly audits of field operations and posting the results of the field audits, training employees on the changes to policies and procedures, and establishing a disciplinary policy for employees.

Therefore, to emphasize the importance of management oversight, attention to detail, prompt identification of violations, and the need for effective corrective actions, 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 problem. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

The NRC inspectors also identified that on several occasions from February 18 through February 23, 2004, the shipping papers for licensed materials were placed inside the gauge transportation case at the rear of the vehicle while in transit on public highways. Therefore, the shipping papers were not in the immediate vicinity of the vehicle operator or readily available and recognizable by authorities in the event of an accident or inspection (Violation B). Additionally, the NRC inspectors identified on April 20, 2004, that another Troxler Model No. 3440 gauge (Serial No. 24577), also containing nominally 8 millicuries of cesium-137 and 40 millicuries of americium-241, was unlocked while in storage at the facility in Detroit, Michigan. The lid of the outer container for the unlocked gauge was closed with a steel cable and crimp. However, the lid could be easily opened by hand, allowing access to NRC-licensed materials (Violation C). Violations B and C are each categorized in accordance with the Enforcement Policy at Severity Level IV. Corrective actions included instructing gauge users to carry shipping papers in the driver's compartment of the vehicle when transporting licensed materials and installing a lock on the exterior case for the gauge in storage.

During a previous NRC inspection on October 17, 2003, the NRC inspectors identified that two, unlocked Troxler gauges were unsecured and unattended in an unlocked store room at your facility in Detroit, Michigan. The inspectors also found that as of October 17, 2003, the shipping papers for licensed materials were not readily available in the driver's compartment of the vehicle while the materials were being transported; rather, the shipping papers were kept inside the gauge transportation case. These violations were cited in Notices dated December 12, 2003, and February 6, 2004.

To have allowed similar violations to occur within approximately four months indicates inadequate corrective action for the original violations and a lack of management involvement in the implementation of the overall radiation safety program. While the corrective actions and improvements in the oversight of your NRC-licensed program that you described at the predecisional enforcement conference appear to be sufficiently broad, the NRC remains concerned with the long-term implementation of your proposed management oversight program. Therefore, in addition to the response required by the enclosed Notice, you are requested to address the additional controls you have implemented or plan in the future to enhance management oversight of your NRC-licensed program. You 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 2.390 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. 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. 030-34616
License No. 21-32050-01

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

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Imaging Subsurface, Inc. 15733 James Couzens St. Detroit, Michigan 48238-1050

Docket No. 030-34616 License No. 21-32050-01 EA-04-092

During an NRC inspection conducted on April 20 and 21, 2004, 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 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 particular violations and associated civil penalty are set forth below:

Violation Assessed a Civil Penalty

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. Contrary to the above, on several occasions from February 18 through February 23, 2004, a licensee employee did not secure from unauthorized removal, limit access to, or maintain constant surveillance of a moisture density gauge containing NRC-licensed materials consisting of approximately 8.0 millicuries of cesium-137 and 40.0 millicuries of americium-241 in a Troxler Model No. 3440 gauge (Serial No. 30985). Specifically the licensed materials were transported in an open bed truck that was not equipped to secure the materials from unauthorized removal and the licensee employee did not control and maintain constant surveillance of the licensed materials while the materials were en route to or on the truck at temporary job sites. This is a Severity Level III violation (Supplement IV). Civil Penalty – $3,000. (EA-04-092)

Violations Not Assessed a Civil Penalty

B.

Condition No. 19 of Materials License No. 21-32050-01, 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 April 20, 2004, the licensee failed to lock the outer container of the Troxler gauge, Model No. 3440 (Serial No. 24577) while the gauge was in storage. Specifically, the gauge was unlocked and the outer container lid was kept closed with a steel cable equipped with a crimp which was easily opened by hand. Therefore, the cable did not prevent unauthorized or accidental removal of the sealed source from its shielded position. This is a Severity Level IV violation (Supplement VI).

C.

10 CFR 71.5(a) requires, in part, that a licensee who transports licensed material outside the site of usage, as specified in the NRC license, or where transport is on public highways, comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation in 49 CFR 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 shall be: (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; (ii) when the driver is not at the vehicle's controls, the shipping paper shall be: (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 several occasions from February 18 through February 23, 2004, the licensee transported a Troxler Model No. 3440 gauge (Serial No. 30985) containing radioactive material consisting of approximately 8 millicuries of cesium-137 and 40 millicuries of americium-241 outside the site of usage, as specified on the NRC license, 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, the shipping paper was placed inside the locked gauge transportation case at the rear of the vehicle. This is a Severity Level IV violation (Supplement V).

Pursuant to the provisions of 10 CFR 2.201, Imaging Subsurface, Inc. (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 Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation: EA-04-092" 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 penalty proposed above 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 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 the time specified, 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-04-092" 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: Frank J. Congel, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with copies to the Regional Administrator and the Enforcement Officer, U.S. Nuclear Regulatory Commission, Region III.

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. which 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 may be required to post this Notice within two working days.

Dated this 17^th day of August 2004.

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¹ A Severity Level III violation without civil penalty was issued on February 6, 2004, for the failure on October 17, 2003, to secure NRC-licensed materials from unauthorized access or removal in two unlocked and unattended Troxler Model No. 3440 portable moisture density gauges (Serial Nos. 24577 and 30985). Each Troxler gauge contained licensed materials consisting of nominally 8 millicuries of cesium-137 and 40 millicuries of americium-241(EA-03-223).