EA-96-298 - Niblock Excavating, Inc.

September 25, 1996

EA 96-298

Gary Niblock
President
Niblock Excavating, Inc.
906 Maple Street
P.O. Box 211
Bristol, IN 46507

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-31686/96001(DNMS)) CLOSURE OF CONFIRMATORY ACTION LETTER NO. RIII-96-007

Dear Mr. Niblock:

This refers to the routine safety inspection conducted at Niblock Excavating, Inc. from June 19, 1996 to August 15, 1996, during which several violations of NRC requirements were identified. A copy of the inspection report was sent to Niblock Excavating, Inc. on August 22, 1996, and a predecisional enforcement conference was held by telephone on September 17, 1996.

Based on the information developed during the inspection and the information that you and the Radiation Protection Officer (RPO) provided during the conference, the NRC has determined that significant violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The root cause of these violations stems from the apparent lack of knowledge and oversight of the radiation safety program by licensee management.

Incumbent upon each entity licensed by the NRC to use byproduct material in a commercial enterprise is the responsibility to protect public health and safety, by ensuring that the rules, regulations and license conditions that have been developed to control radioactive materials are followed at all times. This has not been the case at Niblock Excavating, Inc. Five apparent violations pertaining to the use and control of licensed materials were identified during this inspection. Of particular concern was the use of nuclear gauges by City of Goshen employees without adequate supervision and oversight by Niblock management or Radiation Protection Officer. A Confirmatory Action Letter was issued on June 25, 1996, to confirm your immediate actions for addressing the issues of control and use of licensed material as well as training and instruction for management and authorized users regarding the program requirements. Collectively the apparent violations are indicative of a breakdown in the control and oversight of licensed activities and represent a potentially significant lack of attention or carelessness toward licensed responsibilities. Therefore, these violations are classified in the aggregate in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2500 is considered for a Severity Level III problem. Because your facility has not been the subject of escalated enforcement actions, 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 for the following corrective actions: management received instruction regarding program requirements; a new RPO was appointed and approved by the NRC; the RPO designated specific individuals as authorized users and provided them with extensive instruction of the program requirements; the RPO will conduct periodic field audits to assure that the licensed material is being used in accordance with the license; and leak tests and inventories have been performed and procedures are in place to assure that they will continue to be performed in the future.

Therefore, to encourage prompt and comprehensive correction of violations and in recognition of the absence of previous escalated enforcement action, I have decided 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.

You are required to respond to this letter and 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.

We acknowledge your letters dated July 22, 1996 and August 14, 1996, in response to the Confirmatory Action Letter (CAL) dated June 25, 1996. Your response indicates that you have completed all actions described in the CAL. We will evaluate the effectiveness of your corrective actions during a future inspection.

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).

Sincerely,

/s/ W. L. Axelson (for) A. Bill Beac Regional Administrator

Docket No. 030-31686
License No. 13-26181-01

Enclosure: Notice of Violation

---

NOTICE OF VIOLATION

Niblock Excavating, Inc. Bristol, Indiana

Docket No. 030-31686 License No. 13-26181-01 EA 96-298

During an NRC inspection conducted at Niblock Excavating, Inc. from June 19, 1996 to August 15, 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. Condition 10 of License No. 1326181-01 requires, in part, that licensed materials shall be used only at the licensee's facilities located at 806 Maple Street, Bristol, Indiana.

Contrary to the above, as of January 1995, Troxler moisture/density gauges containing NRC licensed material (nominally 8 millicuries (0.30 GBq) of cesium-137 and 40 millicuries (1.5 GBq) of americium-241) have been used at the licensee's facilities located at 906 Maple Street, Bristol, Indiana. (01013)

B. Condition 11. A. of License No. 13-26181-01 requires that licensed material shall be used by, or under the supervision and in the physical presence of, individuals who have successfully completed the device manufacturer's training program for gauge users and have been designated by the licensee's Radiation Protection Officer. The licensee shall maintain records of the individuals who have been designated as authorized users.

Contrary to the above, between December 1995 and June 19, 1996, a Troxler moisture/density gauge containing NRC licensed material (nominally 8 millicuries (0.30 GBq) of cesium-137 and 40 millicuries (1.5 GBq) of americium-241) was used by individuals not designated by the licensee's Radiation Protection Officer. Specifically, licensed materials were used by employees of the City of Goshen who were not designated by the licensee's RPO. (01023)

C. Condition 12 of License No. 13-26181-01 requires, in part, that sources specified in Items 7.A., 7.B., and 7.C. shall be tested for leakage and/or contamination at intervals not to exceed 6 months. Any source in storage and not being used need not be tested. When the source is removed from storage for use or transfer to another person, it shall be tested before use or transfer.

Contrary to the above, on two occasions in December 1995 and June 1996, a moisture/density gauge containing nominally 8 millicuries (0.30 GBq) of cesium-137 and 40 millicuries (1.5 GBq) of americium-241 was removed from storage and used or transferred to another person without being tested for leakage and/or contamination. (01033)

D. Condition 15 of License No. 13-26181-01 requires that the licensee shall conduct a physical inventory every six months to account for all sealed sources received and possessed under the license.

Contrary to the above, since January 1995, physical inventories were not conducted every six months to account for all sealed sources received and possessed under the license. (01043)

E. 10 CFR 71.5(a) requires 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 June 6, 1996, the licensee transported a gauge containing nominally 8 millicuries (0.30 GBq) of cesium-137 and 40 millicuries (1.5 GBq) of americium-241 outside the confines of its plant without a shipping paper. (01053)

This is a Severity Level III problem (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Niblock Excavating, 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 III, 801 Warrenville Road, Lisle, Illinois 60532-4351 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 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. 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, proprietary, or safeguards information so that it can be placed in the PDR 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 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at Lisle, Illinois,
this 25th day of September 1996