EA-95-276 - Bemis Construction, Inc.

March 19, 1996

EA 95-276

Bemis Construction, Inc.
ATTN: George Bemis, President
P.O. Box 978
Great Bend, Kansas 67530

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $2,500 (NRC INSPECTION REPORT 999-90004/95-04 AND OFFICE OF INVESTIGATIONS REPORT NO. 4-95-039)

Dear Mr. Bemis:

This refers to the inspection conducted from August 17, 1995, through January 3, 1996, by the NRC Region IV office, of activities conducted by Bemis Construction, Inc. in the state of Oklahoma, and to the NRC Office of Investigations subsequent review of those activities. The inspection was focused on your use of a portable moisture/density gauge containing byproduct material at temporary jobsites and storage of the gauge at a field office established by you in the state of Oklahoma, a state under NRC jurisdiction, from December 1990 through July 1995. The issues and two apparent violations were documented in the subject inspection report dated January 11, 1996. You responded to the apparent violations by letter dated January 22, 1996.

Based on the information developed during the inspection and investigation, and the information that you provided in your response to the inspection report, the NRC has determined that 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 the subject inspection report. One of the violations involved a failure to obtain an NRC license or to file an NRC Form 241, "Report of Proposed Activities in Non-Agreement States," prior to conducting licensed activities in Oklahoma, an area where the NRC maintains jurisdiction for regulating the use of byproduct material, from December 1990 through July 1995. Although you stated that you believed that your Agreement State license, issued by the state of Kansas, authorized you to use portable moisture/density gauges in Oklahoma for short periods of time, you were aware that the NRC has jurisdiction in Oklahoma and you did not inquire of the NRC or make any effort to verify that your understanding was correct. Therefore, the NRC has concluded that this violation was the result of, at least, careless disregard for the involved requirements.

The NRC considers the failure to obtain authorization to use byproduct material in areas under its jurisdiction, by either obtaining an NRC license or filing an NRC Form 241, to be a matter of significant regulatory concern because the failure to obtain NRC authorization for such activities denies NRC the opportunity to assure that the activities are conducted in compliance with all NRC radiation safety requirements. Furthermore, your failure resulted in your not paying fees in each of the years that you were in violation. Therefore, this violation has been classified in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, at Severity Level III. As the violations continued after the effective date of this revised Enforcement Policy, the revised Policy has been applied in this matter.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,500 is normally considered for a Severity Level III violation. The NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Since NRC identified the violation, we have determined that no credit for Identification was warranted. The NRC also considered your corrective actions, as described in your January 22, 1996 letter, and determined that credit was warranted for Corrective Action based on your actions of removing the gauge from NRC's jurisdiction, obtaining the appropriate forms for future out of state use of the gauge, and stating that the form will be completed and approved prior to moving the gauge to a non-Agreement State. The assessment of these factors resulted in a determination that the base penalty should be assessed.

Therefore, to emphasize the importance of complying with NRC requirements, 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 amount of $2,500 for this Severity Level III violation. While the violations commenced before March 1991, the period prior to March 1991 is not being cited in accordance with the Statute of Limitations.

The enclosed Notice also describes a second violation involving your failure to use shipping papers during transport of the gauge on public highways, and a third violation involving your failure to leak-test the gauge as required by your state license. The latter violation, while not described in the inspection report, was discussed with you during OI's investigation. Neither of these additional violations is being assessed a civil penalty.

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 should document the specific actions taken and any additional actions you plan to prevent recurrence. Your response should include a description of any actions you have taken and will take to ensure that you are familiar with all applicable NRC requirements should you choose to work in non-Agreement States in the future. You may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

Sincerely, /s/Samuel J. Collins L. J. Callan Regional Administrator

Docket No. 999-90004
License No. KS 22-B274-01

Enclosure: Notice of Violation and
Proposed Imposition of Civil Penalty

cc:w/Enclosure:
Kansas Radiation Control Program Oklahoma Radiation Control Program

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Bemis Construction, Inc. Great Bend, Kansas

Docket No. 999-90004 License No. KS 22-B274-01 EA 95-276

During an NRC inspection and investigation conducted from August 1, 1995, through January 3, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission 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

10 CFR 30.3 requires in relevant part, that no person shall possess or use byproduct material except as authorized by a specific or general license issued by the NRC.

10 CFR 150.20(a) provides in part that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in non-Agreement States subject to the provisions of 10 CFR 150.20(b).

10 CFR 150.20(b)(1) requires, in part, that any person engaging in activities in non-Agreement States shall, at least 3 days before engaging in each such activity, file 4 copies of NRC Form-241, "Report of Proposed Activities in Non-Agreement States," with the Regional Administrator of the appropriate NRC regional office.

Contrary to the above,

A. From March 1991 through August 1992, Bemis Construction, Inc. a licensee of Kansas, used cesium-137 and americium-241 sealed sources in Oklahoma, a non-Agreement State, without a specific license issued by the NRC and without filing Form-241 with the NRC.

B. From March 1991 through July 1995, Bemis Construction, Inc. a licensee of Kansas, stored cesium-137 and americium-241 sealed sources in Oklahoma, a non-Agreement State, without a specific license issued by the NRC and without filing Form-241 with the NRC. (01013)

This is a Severity Level III violation (Supplement VI).
Civil Penalty – $2,500

II. Violations Not Assessed a Civil Penalty

A. 10 CFR 71.5(a) requires that a licensee who transports licensed material outside of the confines of its plant or other place of use, or who delivers licensed material to a carrier for transport, 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 numerous occasions from December 1990 through July 1995, the licensee transported cesium-137 and americium-241 sealed sources on public highways and did not include with the shipment a shipping paper describing the material. (02014)

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

B. 10 CFR 150.20(b)(4) provides that persons who hold a specific license from an Agreement State are granted a NRC general license to conduct the same activity in a Non-agreement state provided a general licensee complies with the provisions of a specific license issued by the Agreement State.

Condition 13 of the State of Kansas License No. 22-B274-01 requires that sealed sources or devices containing licensed materials be tested for leakage and/or contamination at intervals not to exceed six (6) months.

Contrary to the above, a Troxler 3400 series nuclear density gauge containing approximately 9 millicuries of cesium-137 and 44 millicuries of americium-241 had been used approximately 20 times between March 19, 1991 and August 23, 1992, and had not been tested for contamination or leakage. (02024)

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

Pursuant to the provisions of 10 CFR 2.201, Bemis Construction, 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" 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. 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, Bemis Construction, Inc. may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 Bemis Construction, Inc. fail to answer within the time specified, an order imposing the civil penalty will be issued. Should Bemis Construction, Inc. 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" and may: (1) deny the violation 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.B.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. Your attention 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, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. James Lieberman, 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, ATTN: Enforcement Officer, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011-8064.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Arlington, Texas
this 19th day of March 1996