EA-04-117 - PMK Group, Inc.

August 23, 2004

EA-04-117

Mr. Gerald Perricone
Principal
PMK Group, Inc.
65 Jackson Avenue
Cranford, NJ 07015

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $7,500 (NRC Inspection Report No. 03029217/2004001 and NRC Office of Investigations Report No. 1-2004-008)

Dear Mr. Perricone:

The enclosed Notice of Violation enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) is being issued to PMK Group, Inc. (PMK) based, in part, on willful violations of NRC and License requirements. Specifically, a PMK employee left a moisture density gauge, containing 11 millicuries of cesium-137 and 44 millicuries of americium-241, unattended at a temporary work site in East Orange, New Jersey, on February 9, 2004. While the gauge was unattended, it was damaged by moving heavy equipment and the radioactive sources were lost. Despite extensive searches by your employees, the sources have not yet been recovered. Because your employee failed to maintain security of the gauge and it was left unattended, the violations occurred. These violations were identified during an NRC inspection conducted on February 10 through 20, 2004, and during a subsequent investigation by the NRC Office of Investigations (OI). The violations are cited in the enclosed Notice and the circumstances surrounding them are described in detail in the subject inspection report.

The inspection report was forwarded to you on July 7, 2004, and the factual summary of the OI investigation was forwarded to you on July 12, 2004. The findings were discussed during a predecisional enforcement conference held with you on July 29, 2004. The discussion included the violations, their causes, and your corrective actions taken to prevent recurrence of the violations. At the conference, you acknowledged that the violations had occurred, but you stated that the violations for the failure to maintain control of the gauge were the result of negligence and not willful actions by your employee. A summary of the conference is enclosed.

Notwithstanding your statement, the NRC has concluded that the violations involving the failure to control a moisture density gauge were willful. In reaching this conclusion, the NRC considered the facts that: (1) the individual stated that he was responsible for leaving the gauge unattended and that his action had contributed to the destruction of the gauge; and (2) the individual had attended training that stated gauge operators must maintain control of gauges in the field at all times and the gauges must never be left unattended. Given the individual's admission to the OI investigator and level of education and experience, the NRC concluded that the individual's actions were taken with careless disregard of the requirements. Willful violations are a serious concern because the NRC's regulatory program relies, in part, on the honesty and integrity of licensees and their employees. As such, willful violations cannot be tolerated.

The NRC recognizes that the radioactive material is contained in robust, tightly welded containers, and a release of radioactive contamination is not likely. Furthermore, the amount of material and resulting radiation levels are not large and will not cause harm to an individual unless one of the radioactive sources is in direct contact with the skin for an extended period of time. Nonetheless, the violations were also of concern because the loss of the sources from the gauge created the potential for individuals to be unnecessarily exposed to the radioactive material.

Therefore, violations I.A and I.B. in the enclosed Notice are classified as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. In accordance with the current version of the Enforcement Policy, a base civil penalty in the amount of $7,500 is considered for a Severity Level III problem involving the loss of control of radioactive material with this level of radioactivity. Because the violations were willful in nature, 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 your staff promptly notified the NRC regarding the potentially damaged source. Credit for corrective actions is also warranted because your corrective actions at the time of the enforcement conference, were considered comprehensive. These actions included, but were not limited to: (1) reprimanding the individual who failed to monitor the gauge and prohibiting the individual from gauge use for 1 year; (2) preparing new procedures for gauge users; (3) providing training to all gauge users to emphasize the users' responsibilities for ensuring security of licensed materials; and (4) implementing a quality assurance program which includes periodic audits of the radiation protection program and gauge users' compliance with the requirements.

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 violations and to emphasize the importance of maintaining control of licensed material (see section VII.A.1(g) of the Enforcement Policy). Therefore, to emphasize the importance of maintaining control of sealed sources and devices, 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 in the base amount of $7,500 for this willful Severity Level III problem. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Three other violations were also identified during the inspection and are described in Section II of the enclosed Notice. Those other violations are each classified at Severity Level IV.

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.The NRC also includes Issued Significant Enforcement Actions on its Web site.

Questions concerning this Notice may be addressed to John Kinneman of my staff. Mr. Kinneman can be reached at telephone number (610) 337-5252.

		Sincerely,
		/RA by James Wiggins Acting For/
		Samuel J. Collins Regional Administrator

Docket No. 030-29217
License No. 29-27828-01

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

cc w/encl:
State of New Jersey

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ENCLOSURE

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

PMK Group, Inc Cranford, NJ

License No. 29-27828-01 Docket No. 030-29217 EA 04-117

During an NRC inspection conducted at PMK Group, Inc. (PMK) on February 10 through 20, 2004, and a subsequent investigation by the NRC Office of Investigations (OI), the report of which was issued on May 14, 2004, 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 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:

I.	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 February 9, 2004, the licensee did not secure from unauthorized removal or access a portable moisture density gauge (containing approximately 11 millicuries of cesium-137 and 44 millicuries of americium-241) located at a temporary work site in East Orange, New Jersey, which is an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, on that date, the gauge was left unattended by the gauge user and the gauge was damaged and lost.
	B.	Condition 21 of the above license requires, in part, that at job sites, a gauge user not walk away from the gauge when it is left on the ground at a temporary job site, and protect the gauge from moving heavy equipment. Contrary to the above, a gauge user walked away from the gauge when it was left on the ground at a temporary job site, and did not protect the gauge from moving heavy equipment. As a result, on February 9, 2004, a portable moisture density gauge (containing approximately 11 millicuries of cesium-137 and 44 millicuries of americium-241) was crushed by moving heavy equipment, and the licensed material contained in the gauge was lost.
	This is a Severity Level III problem (Supplement VI) Civil Penalty - $7,500
II.	VIOLATIONS NOT ASSESSED A CIVIL PENALTY
	A.	10 CFR 71.5(a) requires, in part, 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, 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(a) requires that a carrier not transport a hazardous material unless it is accompanied by a shipping paper prepared in accordance with 49 CFR 172.200-203. Pursuant to 49 CFR 172.101, radioactive material is classified as hazardous material. Contrary to the above, on several occasions, the licensee transported nuclear gauges containing radioactive material (cesium-137 and americium-241) outside the confines of its permanent storage location and the radioactive material was not accompanied by a shipping paper. Specifically, on February 9, 10 and 20, 2004, the licensee transported nuclear gauges containing the licensed radioactive material to its temporary job sites without the required shipping papers prepared in accordance with the applicable DOT requirements. This is a Severity Level IV violation (Supplement V).
	B.	Condition 21 of NRC License No. 29-27828-01 requires, in part, that the licensee conduct its program in accordance with the procedures contained in its application dated October 18, 2001.
		1.	Item 10 (Operating and Emergency Procedures) of the application requires, in part, that the licensee implement and maintain the operating and emergency procedures in Appendix H of NUREG 1556, Volume 1, dated May 1997, and provide copies of these procedures to all gauge users and at each job site. Contrary to the above, the licensee did not provide copies of these procedures to all gauge users and at each job site on several occasions. Specifically, on February 9, 10, and 20, 2004, the licensee used nuclear gauges at its temporary job sites and the operators were not provided copies of the licensee's operating and emergency procedures.
		This is a Severity Level IV violation (Supplement VI).
		2.	The Operating Procedures described in Appendix H of the NUREG require, in part, that a gauge be signed out in a log book, and the record include the date(s) of use, name(s) of the authorized users who will be responsible for the gauge, and the temporary job site(s) where the gauge will be used; the procedures also require that a gauge user not walk away from the gauge when it is left on the ground. Contrary to the above, a nuclear gauge was in use at a temporary job site and the licensee did not have records indicating the dates it was used, the name of the authorized user who was responsible for the gauge, and the location of the temporary job site where it was in use. Specifically, on February 10, 2004, a Humboldt Model 5001 gauge was in use at a temporary job site and the licensee did not have records indicating the date it was signed out, the name of the authorized user who was using the gauge, or the location of the temporary job site where it was in use.
		This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, PMK Group, Inc. 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 04-117" 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 03-036" 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 2.390(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 23^rd day of August 2004