EA-04-099 - TES Consultants, P.C.

September 1, 2004

EA-04-099
NMED No. 040320

Lami A. Taweel, P.E., President
TES Consultants, P.C.
23943 Industrial Park Drive
Farmington Hills, MI 48335

SUBJECT:

NOTICE OF VIOLATION [NRC INSPECTION REPORT NO. 030-34920/2004-001(DNMS)]

Dear Mr. Taweel:

This refers to the special inspection conducted on May 5 and May 6, 2004, at your facility in Farmington Hills, Michigan, and at a temporary job site located in Ann Arbor, Michigan, to review the circumstances related to a moisture density gauge containing NRC-licensed materials that was damaged at a temporary site in Waterford, Michigan, on May 4, 2004. One apparent violation was identified during the inspection and the inspection report was provided to you on July 2, 2004.

In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violation identified in the report by either attending a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. You provided the required written report of the event to the NRC in a letter dated May 17, 2004. You responded to the apparent violation in letters dated July 15 and July 27, 2004.

Based on the information developed during the inspection and the information you provided in letters dated May 17, July 15, and July 27, 2004, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it are described in detail in the subject inspection report. On May 4, 2004, a technician employed by TES Consultants, P.C., was at a construction site in Waterford, Michigan, to conduct soil density measurements using a Troxler Model 3430 density gauge (Serial No. 30162) containing NRC-licensed materials (nominally 8 millicuries of cesium-137 and 40 millicuries of americium-241). The technician left the gauge unattended, during the course of one measurement, to speak with a construction foreman about 100 feet away from the gauge, and the technician did not maintain direct observation of the Troxler gauge containing licensed materials. While the technician was away from the gauge, the gauge was struck and damaged by excavation equipment.

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. On May 4, 2004, Troxler Model No. 3430 gauge (Serial No. 30162) 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.

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 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 was warranted for the Corrective Action factor. Corrective actions included retraining the technician involved, planning annual refresher training to assure all authorized users are familiar with operating procedures and Federal regulations, and having the Radiation Safety Officer conduct field audits of authorized users to assure technicians are complying with all requirements.

Therefore, to encourage prompt comprehensive correction of violations and in recognition of the absence of previous escalated enforcement action, 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 escalated enforcement action, that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in letters from TES Consultants, P.C., dated May 17, July 15, and July 27, 2004. 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.

Our July 2, 2004, letter also forwarded a Notice of Violation describing two additional violations of NRC requirements. Each of these violations was individually categorized in accordance with the Enforcement Policy at Severity Level IV. One violation concerned the failure to perform a survey on May 4, 2004, following the incident at the construction site in Waterford, Michigan. The purpose of the survey is to evaluate radiation levels, concentrations or quantities of radioactive materials, and potential radiological hazards before the damaged gauge, containing licensed materials, was removed from the construction site to ensure that no contamination remained at the site or was spread while the gauge was being returned to your facility. The other violation pertained to several of the specific requirements listed within Condition No. 19 of your NRC Materials License, including the failure to: (1) possess a radiation survey instrument for use during emergency situations; (2) provide each gauge user with a copy of your operating and emergency procedures; (3) conduct an annual audit of your radiation safety program; and (4) provide annual refresher training to all authorized gauge users. Corrective actions included: (1) purchasing a radiation survey instrument; (2) providing copies of the operating and emergency procedures to each gauge user; (3) conducting an annual audit of the radiation safety program; and (4) conducting an annual field audit of the gauge technicians. Other corrective actions included developing a portable gauge safety manual and providing refresher training to all employees. You provided your written response to these violations in your July 15, 2004, letter and no additional response is required from you on these issues.

In accordance with 10 CFR 2.390 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response (should you choose to respond) 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/ Geoffrey E. Grant for
		James L. Caldwell Regional Administrator

Docket No. 030-34920
License No. 21-32150-01

Enclosure: Notice of Violation

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NOTICE OF VIOLATION

TES Consultants, P.C. Farmington Hills, Michigan

Docket No. 030-34920 License No. 21-32150-01 EA-04-099

During an NRC inspection conducted on May 5 and May 6, 2004 a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

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 materials that are in a controlled or unrestricted area and that are 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 May 4, 2004, the licensee failed to secure from unauthorized removal, limit access to, or maintain constant surveillance of a Troxler Model 3430 (Serial No. 30162) moisture density gauge containing licensed materials (approximately 8.0 millicuries of cesium-137 and 40.0 millicuries of americium-241), at a temporary job site, an unrestricted area, in Waterford, Michigan, and the gauge was struck and damaged by excavating equipment.

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

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in letters from TES Consultants, P.C., dated May 17, July 15 and July 27, 2004. 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, EA-04-099," 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, 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, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. 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 1^st day of September 2004.