EA-96-480 - Roberts Construction Company

January 17, 1997

EA 96-480

Roberts Construction Company
ATTN:Mr. David H. Roberts
Radiation Safety Officer
P. O. Box 610
Louisa, KY 41230

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 16-24818-02/96-01)

Dear Mr. Roberts:

This refers to the inspection conducted during the period November 5 through 7, 1996, at your Prichard, West Virginia facility. The inspection was conducted to determine whether you utilized licensed material (a portable nuclear gauge) after the expiration of your Nuclear Regulatory Commission (NRC) Materials License No. 16-24818-02 on January 31, 1996; and to determine why you were unresponsive to the NRC concerning the status of your licensed material. The results of this inspection were also discussed with you on November 14, 1996, and were formally transmitted to you by letter dated December 3, 1996. A closed, transcribed predecisional enforcement conference was conducted in the Region II office on January 13, 1997, with you to discuss the apparent violations, the root causes, and corrective actions to preclude recurrence. A list of conference attendees, a copy of the documentation you presented at the conference, and NRC conference materials provided to you are enclosed.

Based on the information developed during the inspection and the information that you provided during the conference, the NRC has determined that violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. Violation A involved your failure to properly secure your licensed material against unauthorized removal or access while it was located at a temporary job site. Specifically, on November 6, 1996, the gauge was observed by an NRC inspector to be unsecured in an unlocked tool trailer located at a temporary job site in War, West Virginia. This fact was brought to the attention of your site foreman; however, upon the inspector's return to the War job site on November 7, 1996, the gauge was again observed to be unsecured in a manner similar to that observed on November 6, 1996.

At the conference, you stated that at the time, you believed the gauge was properly safeguarded from unauthorized access in that (1) at the conclusion of work each day, the tool trailer was locked and the access further secured by placement of heavy equipment in front of the access doors and (2) during the work day, individuals in your employ were present at the job site and would observe any unauthorized individuals in the tool trailer and would protect the gauge from theft.

NRC determined that the gauge was secured against unauthorized removal or access at night; however, the circumstances observed by the NRC and that you described at the conference did not meet the NRC's requirements for security of the gauge during the day. Although workers were present at the job location, these individuals had not been specifically instructed in the need for constant surveillance of the gauge or the requirements for its security and control. The workers also were not physically positioned (e.g., workers in excavation pit and the crane operator across the street) to surveil for or prevent unauthorized individuals from accessing the gauge. This failure to control access or lack of security was made more significant by the fact that the tool trailer containing the gauge was located along a state road travelled by members of the public.

Based on these circumstances, the NRC concluded that on November 6 and 7, 1996, you failed to follow NRC requirements for controlling access to the gauge by unauthorized personnel. This failure is significant due to the potential for access by the public and potential for radiation exposure or loss of radioactive material. Therefore, this violation is classified in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III violation.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,500 is considered for a Severity Level III violation occurring prior to November 12, 1996. Because your facility has not been the subject of escalated enforcement action within the last two inspections the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process described in Section VI.B.2 of the Enforcement Policy. On November 7, 1996, upon being personally informed of the inadequately secured gauge, you promptly took control of the gauge. At the conference, you stated that this storage of the gauge was unusual and an isolated case in that normally the gauge is under surveillance or locked at your base facility or your vehicle. You also indicated that you now understand the requirements for securing the gauge and will implement them properly in the future. Based the above, the NRC concluded that your corrective actions were prompt and appropriate and credit was warranted for the factor of Corrective Action.

Although the failure to control and properly secure licensed material is of significant regulatory concern, to emphasize the importance of prompt corrective action for violations, I have been authorized, after consultation with the Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty.

Violations B and C in the enclosed Notice have been categorized as Severity Level IV violations and involved your failure to leak test and inventory your sealed sources at the required six-month frequency. Specifically, since the last inspection in January 1992, your gauge was only leak tested once when it was sent to the manufacturer for calibration in May of 1994. At the conference, you stated that your corrective actions for these violations included: (1) purchase of a kit from the manufacturer to accomplish four leak tests in a two-year period; (2) establishment of separate files and/or logs for leak tests, inventories, and the annual program audit; and (3) establishment of a system to track when requirements are completed.

In addition, Inspection Report No. 16-24818-02/96-01 also identified an apparent violation regarding your apparent use of your portable gauge after your NRC material license expired on January 31, 1996. After considering your statements denying its use as well as subsequent discussions with the West Virginia Highway Department on January 14, 1997, we have concluded that you did not use you licensed material in violation of 10 CFR 30.36(a), and the apparent violation is therefore withdrawn.

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.

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

Sincerely,

Original signed by Jon R. Johnson for Luis A. Reyes Regional Administrator

Docket No. 030-31981
License No. 16-24818-02

Enclosures:
1. Notice of Violation
2. Conference Attendees (Not to be Published in NUREG-0940)
3. Licensee Documentation (Not to be Published in NUREG-0940)
4. NRC Presentation Materials (Not to be Published in NUREG-0940)

cc w/encls:
State of West Virginia

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NOTICE OF VIOLATION

Roberts Construction Company Prichard, West Virginia

Docket No. 030-31981 License No. 16-24818-02 EA 96-480

During an NRC inspection conducted during the period November 5 through 14, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A. 10 CFR 20.1801 requires the licensee to secure from authorized removal or access licensed materials that are stored in a controlled or unrestricted areas.

Condition 18 of Materials License No. 16-24818-02 requires the licensee to conduct its program in accordance with the statements, representations, and procedures contained in the Application dated November 29, 1990.

Item 10.B.6 of the Application states "Maintain security of the instrument at all times. Do not at any time leave gauge unattended....When stored, the area should be locked." Item 10.C.3 of the Application states "Storage containers shall be physically secured to prevent tampering or removal by unauthorized personnel. All gauges while on temporary job sites will be secured in such a manner as to safeguard against unauthorized access."

Contrary to the above, on November 6 and 7, 1996, the licensee failed to secure from unauthorized removal or access a portable density gauge containing nominally 8 millicuries of Cesium-137 and 40 millicuries of Americium-241 located in a tool trailer at a temporary job site in War, West Virginia, which is an unrestricted area.

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

B. Condition 14.A (1) of Material License No. 16-24818-02 requires, in part, that each sealed source containing licensed material, other than Hydrogen-3, with a half-life greater than thirty days and in any form other than gas shall be tested for leakage and/or contamination at intervals not to exceed six months.

Contrary to the above, from January 1992 to May 26, 1994, and from December 1994 to November 25, 1996, the licensee failed to test its Cesium-137 and Americium-241 sealed sources contained in a portable density gauge for leakage and/or contamination at six month intervals. (02014)

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

C. Condition 15 of Material License No. 16-24818-02 requires, in part, the licensee to conduct a physical inventory every six months to account for all sealed sources received and possessed under the license.

Contrary to the above, from January 1992 to May 26, 1994, and from December 1994 to November 7, 1996 (the end date of the inspection), the licensee failed to inventory Cesium-137 and Americium-241 sealed sources contained in a portable density gauge every six months. (03014)

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

Pursuant to the provisions of 10 CFR 2.201, Roberts Construction Company 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 II, 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 previously 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. 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 Atlanta, Georgia
this 17th day of January 1997