EA-96-245 - U.S. Engineering Labs, Inc.

August 5, 1996

EA 96-245

Mr. Martin B. Lowenthal, President
U.S. Engineering Labs, Incorporated
903 East Hazelwood Avenue
Rahway, New Jersey 07065

Dear Mr. Lowenthal:

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 030-33387/96-001)

This letter refers to the NRC inspection conducted on June 28, 1996, at your facility in Rahway, New Jersey. The purpose of this inspection was to determine whether activities authorized by the license were conducted safely and in accordance with NRC requirements, and to review the circumstances surrounding damage to a soil moisture/density gauge containing licensed radioactive material. At the conclusion of the inspection, the findings were discussed with you and Mr. C. O'Malley, your Radiation Safety Officer. During the inspection three apparent violations of NRC requirements were identified, as described in the NRC inspection report, a copy of which was sent to you on July 10, 1996. On July 24, 1996, a predecisional enforcement conference was conducted with you and Mr. O'Malley to discuss the apparent violations, their causes, and your corrective actions. A copy of the Enforcement Conference Report is enclosed.

Based on the information developed during the inspection, and information provided during the conference, two violations of NRC requirements are being cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. The violations described in the enclosed Notice include the following: (1) failure to maintain control of licensed material not in storage; and (2) the use of licensed material by unauthorized users. A third apparent violation described in the inspection report, involving the failure to maintain training records, constitutes a violation of minor safety significance and is being treated as a Non-Cited Violation, consistent with Section IV. of the NRC Enforcement Policy and is not being cited in the enclosed Notice.

On June 27, 1996, you informed the NRC Region I staff that a portable soil moisture/density gauge containing licensed materials (sealed sources of 8 millicuries of cesium-137 and 40 millicuries of americium-241) had been damaged when a truck ran over it at a temporary job site in Jersey City, New Jersey. During the NRC inspection, we determined that the technician had left the gauge unattended in order to inform the foreman, who was approximately 100 feet away, that two compaction tests had failed. After speaking with the foreman, the technician left the general area to speak with the superintendent of the site, who was located in a trailer on site, apparently believing that the foreman was providing security of the area where the gauge was located. When the technician returned, approximately 3 minutes later, to the area where the gauge was located, he found that it had been damaged.

The NRC recognizes that the technician subsequently took appropriate action in cordoning off the area, and notifying the RSO, who took appropriate action to package and transport the damaged gauge back to your Rahway facility. Nonetheless, the failure to maintain security or constant surveillance of licensed material, particularly at temporary jobsites, represents a significant failure to meet those responsibilities, and constitutes a significant regulatory concern. This failure takes on even greater significance because it resulted in damage to the gauge. Therefore, the 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 $2,500 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement in the past two years, the NRC considered whether credit was warranted for corrective action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit was warranted because your corrective actions were considered both prompt and comprehensive in response to the discovery of the damaged gauge. Your corrective actions, which were described in your presentation during the conference, included: (1) meeting with the responsible individual in order to review what had occurred, and cover the required procedures which should have been followed; (2) immediately contacting all of your gauge users by telephone to inform them of the event; (3) issuing a memorandum, within four days of the event, to all users describing required procedures to be followed; and (4) providing training in one-on-one meetings with all users concerning the procedures for security and control of the gauges, as well as the procedure to follow if a gauge is damaged.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action at your facility, I have been authorized not to propose a civil penalty in this case. However, any similar violations in the future could result in more significant escalated enforcement action, including issuance of a civil penalty.

The other violation being cited is described in the enclosed Notice and is classified at Severity Level IV. This violation has been classified at Severity Level IV because you were not in compliance with your license but you demonstrated during the conference that the individuals were qualified to use the gauges based on their educational background, and that they also had received training from your radiation safety officer prior to using the gauges.

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. 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 or proprietary information so that it can be placed in the PDR without redaction.

The responses directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Pub. L. No. 96-511.

Sincerely,

Hubert J. Miller Regional Administrator

Docket No. 030-33387
License No. 29-30107-01

Enclosures:

1. Notice of Violation
2. Enforcement Conference Report

cc w/encls:
State of New Jersey

---

NOTICE OF VIOLATION

U.S. Engineering Labs, Inc. Rahway, New Jersey

Docket No. 030-33387 License No. 29-30107-01 EA 96-245

During an NRC inspection conducted on June 28, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A. 10 CFR 20.1801 requires, in part, that the licensee secure from unauthorized removal or access licensed materials that are stored in an unrestricted area. 10 CFR 20.1802 requires, in part, that the licensee control and maintain constant surveillance of licensed material that is in an unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, an unrestricted area means an area access to which is neither limited nor controlled by the licensee.

Contrary to the above, on June 27, 1996, the licensee did not secure from unauthorized removal or limit access to a Troxler moisture/density gauge containing an 8 millicurie cesium-137 sealed source and a 40 millicurie americium-241 sealed source located at a temporary jobsite in Jersey City, New Jersey, an unrestricted area. The licensee did not control and maintain constant surveillance of this licensed material in that the gauge was left unattended at the jobsite for approximately three minutes.

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

B. Condition 11.A. of License No. 29-30107-01, requires that licensed material be used by, or under the supervision and in the physical presence of, Christopher O'Malley or individuals who have received the training described in an application dated November 19, 1993, and have been designated in writing by the Radiation Safety Officer. The application, in the attachment under "Training", requires that operators (individuals who use or supervise the use of gauges) must complete the manufacturer's operator's training course.

Contrary to the above, as of June 28, 1996, licensed material was used by individuals who had not completed the manufacturer's operator's training course nor were the operators supervised by individuals who had completed the manufacturer's operator's training course. Specifically, one individual, who had not completed the manufacturer's training course and was not supervised, used gauges between May 14 and June 28, 1996, and a second individual, who had not completed the manufacturer's training course and was not supervised, used the gauges between May 20 and June 25, 1996.

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

Pursuant to the provisions of 10 CFR 2.201, U.S. Engineering Labs, Inc., is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555, with a copy to the Regional Administrator, Region I, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) 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 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. Where good cause is shown, consideration will be given to extending the response time.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible it should not include any personal privacy or proprietary 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 King of Prussia, Pennsylvania
this 2nd day of August 1996