EA-96-308 - Nelson Excavating, Inc.

January 27, 1997

EA 96-308

Nelson Excavating, Inc.
ATTN: Mr. James C. Nelson, Owner
Euclid Avenue Addition
Thomas, West Virginia 26292

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $5,000 (NRC Inspection Report No. 47-24923-02/96-01 and 96-02)

Dear Mr. Nelson:

This letter transmits a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and terminates your Nuclear Regulatory Commission (NRC) License No. 47-24923-02 for a Troxler Electronic Model 3400 series portable moisture density gauge (gauge), containing nominally 11 millicuries (mCi) of Cesium-137 and 44 mCi Americium-241. These actions are based upon NRC inspections conducted during the period March 19 through April 1, 1996, and August 14 through 15, 1996, at your Thomas, West Virginia facility. The inspections included a review of your compliance with an October 24, 1995, Order Suspending License (Effective Immediately), with respect to your use of by-product material that you possessed under NRC License No. 47-24923-02. The results of these inspections were sent to you by letters dated June 11, 1996, and September 25, 1996. Our June 11, 1996 correspondence to you also transmitted a Demand for Information (DFI), that required you to respond to several specific questions regarding various aspects of your licensed activities. After NRC prompting and a visit to your facility, you provided a written response to the DFI on August 15, 1996.

In our September 25, 1996 letter, you were requested to attend a predecisional enforcement conference to discuss the apparent violations, their root causes, and the corrective actions to preclude recurrence. As of the date of this letter, NRC has not received any response from you, despite numerous attempts to contact you. Contact with your Office Manager revealed that due to non-business related problems you do not intend to respond. Consequently, we have decided to proceed and subsequently determined the appropriate enforcement action in this matter based on the information currently available to us.

Based on the information developed during the inspections and the information you provided in your August 15, 1996, response to the DFI, the NRC has determined that violations of NRC requirements occurred. The violations described in Part I of the Notice directly resulted from your deliberate misconduct, as owner and operator of Nelson Excavating, Inc. Specifically, Violation I.A involved your deliberate failure to provide complete and accurate information to the NRC. In a September 17, 1992, written statement to the NRC, you misrepresented the identity of the Radiation Protection Officer (RPO). The individual named as RPO had not been employed at Nelson Excavating, Inc. since September 1987, and another individual not named in the license had been performing this function, in violation of Condition 11 of your NRC License. Although not cited in the enclosed Notice, you also made oral statements to NRC Region II management on May 15, 1996, that the gauge had not been used under your license since the October 24, 1995 Order Suspending License, when in fact, it had. Violation I.B. involved your conducting licensed activities since September 1987, with an RPO other than the individual authorized by your NRC license. Violation I.C, involved your actual use of licensed material, i.e., your gauge, on thirteen occasions after your license was suspended. Ten utilizations of the gauge were subsequent to the May 15, 1996, aforementioned discussions with the NRC.

In the response to the DFI, you admitted to use of the gauge during the prohibited period. As an explanation, you stated that you had reading and comprehension difficulties, and following your March 19, 1996 payment of backfees and receipt of a March 1, 1996 notice from NRC extending your license until September 30, 2002, you believed you could use the gauge. In addition, as the owner and operator of Nelson Excavating, Inc., you stated that you paid for it [the gauge], you owned it, and would use it accordingly. This is in contrast to what you had told the NRC in the May 15, 1996, conversation, i.e., that you understood that the material could not be used.

Nelson Excavating, Inc.'s failure to comply with an NRC Order and deliberately providing inaccurate information to the NRC is of very significant regulatory concern to the NRC. In addition, the NRC has had to twice visit your facility in West Virginia in order to obtain a response to the October 24, 1995 Order and the June 11, 1996 DFI. It is essential that the NRC be able to maintain the highest trust and confidence that individuals working with licensed material will comply with regulatory requirements, act with integrity, and communicate with candor on regulatory issues. Your lack of responsiveness, your use of licensed material even after being told that use was in violation of an NRC Order, and your failure to use the RPO designated in your license, all clearly indicate disregard for NRC requirements and bring into question your commitment to conduct licensed activities safely and in accordance with regulatory requirements. Therefore, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, the violations have been categorized collectively as a Severity Level I problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $5,000 is considered for a Severity Level I problem. In accordance with the civil penalty assessment process described in Section VI.B.2 of the Enforcement Policy, the NRC considered whether credit was warranted for Identification and Corrective Action. In this case, the NRC concluded that credit was not warranted for Identification because the NRC identified the violations. Regarding Corrective Action, on August 15, 1996, you transferred your licensed material to an authorized recipient and discontinued licensed activities. In addition, on August 15, 1996, you submitted a formal request to terminate your license. Notwithstanding these actions, NRC intervention was required to focus your attention on this matter and your deliberate actions continued even after NRC discussions with you on May 15, 1996. We have therefore determined that credit is not warranted for Corrective Action. This assessment results in a civil penalty twice the base amount. However, under the circumstances of this case including the enclosed termination of license, a base civil penalty is warranted.

Therefore, to emphasize the importance of compliance with all regulatory requirements associated with your license and to make clear to you that deliberate failures to comply with NRC regulations cannot be tolerated, I have been authorized, after consultation with the Commission, to exercise enforcement discretion and to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of $5,000 for the Severity Level I problem.

The violation described in Part II of the enclosed Notice has been categorized at Severity Level IV and involves the failure to test your licensed materials for leakage and/or contamination at the required frequency. In your response to the DFI, you provided no explanation for this failure; however, detailed corrective actions regarding the particular violation are not necessary due to your recent disposition of the licensed material.

Your deliberate actions as the owner of Nelson Excavating, Inc., directly contributed to the violations. Therefore, the NRC, by separate correspondence is issuing an Order to you prohibiting you from engaging in, or overseeing, NRC-licensed activities for a period of five years.

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 consider your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements. It is not necessary for you to respond with the actions to correct the violations since you have transferred any material under this license to another licensee, and have requested to have your license terminated. In accordance with that request, NRC has enclosed a notice terminating your license.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and any response you may provide will be placed in the NRC Public Document Room (PDR).

Sincerely,

Original Signed by L. A. Reyes Luis A. Reyes Regional Administrator

Docket No. 030-32882
License No. 47-24923-02

Enclosures:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. License Termination

cc w/encls:
State of West Virginia

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Nelson Excavating, Inc. Thomas, West Virginia

Docket No. 030-32882 License No. 47-24923-02 EA 96-308

As the result of inspections conducted on March 19 through April 1, 1996, and August 14 through 15, 1996, violations of Nuclear Regulatory Commission (NRC) requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," 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. Violations Assessed a Civil Penalty

A. 10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee be complete and accurate in all material respects.

10 CFR 30.10(a)(2) prohibits a licensee or any employee of a licensee from deliberately submitting to the NRC information that the person knows to be incomplete or inaccurate in some respect material to the NRC.

Contrary to the above, the licensee provided inaccurate information to the Commission in that by letter dated September 17, 1992, the licensee informed the Commission that "Frederick Shobe is still and will remain the Radiation Safety Officer for Nelson Excavating." In fact, Mr. Shobe had not been in the employment of the licensee since September 1987, and was not acting in the capacity of Radiation Protection Officer. This information was material to the NRC in that Mr. Shobe, as Radiation Protection Officer, was approved by NRC and relied upon to oversee the safe conduct of licensed activities by the licensee. (01011)

B. License Condition 11 states that the Radiation Protection Officer (RPO) for this license is Frederick Shobe.

Contrary to the above, from approximately September 1987 through March 1996, Mr. Shobe was not employed by the licensee and did not serve as the RPO for the licensee. (01021)

C. 10 CFR 30.34(a) states, in part, that each license issued pursuant to 10 CFR Part 30 is subject to all the provisions of the Atomic Energy Act and to all valid rules, regulations, and orders of the Commission.

The Order Suspending License (Effective Immediately) issued on October 24, 1995 stated, in part, that the Nelson Excavating, Inc.'s license was suspended with respect to use of licensed materials.

Contrary to the above, the licensee deliberately used a portable moisture density gauge containing nominally 11 millicuries (mCi) of Cesium-137 and 44 mCi of Americium-241 on November 6, 1995, and January 4; April 22; July 12; July 16; July 17; July 18; July 19; July 22; July 24; July 25; July 26; and August 8, 1996, during the time that the Order Suspending License was effective. (01031)

This is a Severity Level I Problem (Supplement VII).
Civil Penalty - $5,000

II. Violation not Assessed a Civil Penalty

License Condition 14 of License No. 47-24923-02 requires, in part, that licensed materials be tested for leakage and/or contamination at intervals not exceeding 6 months.

Contrary to the above, from February 20, 1995 to April 22, 1996, a period exceeding 6 months, no test for leakage and/or contamination was performed on licensed materials, specifically Cesium-137 and Americium-241 sources in a portable moisture density gauge. (02014)

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

Pursuant to the provisions of 10 CFR 2.201, the Nelson Excavating, Inc. (Licensee) 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; and (2) the reasons for the violation if admitted, and if denied, the reasons why. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued. 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, the Licensee 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 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 the time specified, 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" 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.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. 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, letter with payment of civil penalties, 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, U.S. Nuclear Regulatory Commission, Region II.

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 Atlanta, Georgia
this 27th day of January 1997