EA-97-037 – Construction Testing & Engineering, Inc.

March 17, 1997

EA 97-037

Mr. Rodney D. Ballard, Vice President
Construction Testing & Engineering, Inc.
2414 Vineyard Avenue, Suite G
Escondido, California 92029

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 150-00004/96-17)

Dear Mr. Ballard:

This refers to the predecisional enforcement conference conducted on February 26, 1997, in the NRC's Walnut Creek Field Office, Walnut Creek, California. The conference was conducted to discuss two apparent violations of NRC requirements identified during an inspection ending on January 27, 1997, and described in NRC Inspection Report No. 150-00004/96-17, issued on February 11, 1997. This also refers to your letter to the NRC dated February 25, 1997, in which Construction Testing & Engineering, Inc. (CTE) provided a written response to the apparent violations.

Based on the information developed during the inspection, and the information that you provided during the conference and 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 (Notice) and involved: using portable moisture/density gauges in areas of exclusive federal jurisdiction without NRC authorization; and providing the NRC information that was not complete in all material respects. The circumstances surrounding these violations were described in the inspection report.

The conduct of activities in NRC's jurisdiction without an NRC license is a matter the NRC considers important because it denies the NRC the opportunity to assure that such activities are being conducted by appropriately trained personnel and in accordance with all safety requirements. In this case, the violation is more significant because it is a recurrence of a similar violation that occurred in 1993 and which resulted in CTE being assessed a $500 civil penalty (EA 93-292). Thus, this violation has been classified at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600.

This violation was discovered and corrected by CTE in May 1996 during a review conducted to determine compliance with regulatory requirements. CTE promptly came into compliance, by filing an NRC Form 241 and paying the associated fee, and in

December 1996 applied for and was granted a specific NRC license to conduct activities at temporary job sites anywhere NRC maintains jurisdiction. In its February 25 letter, CTE committed to have its radiation safety officer visit branch offices of CTE and conduct reviews to assure compliance with all NRC requirements.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. Because your facility has been the subject of escalated enforcement action within the last 2 inspections, as discussed above, 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. Based on the circumstances described above, CTE is being given credit for both, resulting in no civil penalty being assessed in this case.

Accordingly, to encourage the self-identification and prompt and comprehensive correction of violations, I have been authorized not to propose a civil penalty in this case. However, significant violations in the future, particularly violations of a similar nature, could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action which may subject you to more frequent inspection by NRC.

The remaining violation in the Notice involves CTE providing the NRC incomplete listings of locations in NRC jurisdiction at which CTE had used portable gauges from January to May 1996, prior to CTE's filing an NRC Form 241. This information had been requested by the NRC to determine whether CTE had been in violation of NRC requirements during this period. Based on the extenuating circumstances described in CTE's February 25 letter, and the fact that CTE had acknowledged, prior to providing NRC this information, that CTE most likely had operated in noncompliance, this violation is classified at Severity Level IV. CTE is reminded nonetheless of the importance of assuring that information provided to the NRC is complete and accurate.

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.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response if you choose to submit one, will be placed in the NRC Public Document Room (PDR). Should you have any questions concerning this letter, please contact Linda Howell at (817) 860-8213.

Sincerely,

org signed by J. E. Dyer for Ellis W. Merschoff Regional Administrator

Docket No. 030-34317
License No. 04-29106-01

Enclosure: Notice of Violation

cc w/Enclosure: State of California

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NOTICE OF VIOLATION

Construction Testing & Engineering, Inc. Escondido, California

Docket No. 030-34317 License No. 04-29106-01 EA 97-037

During an NRC inspection completed January 27, 1997, 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 30.3 requires, in part, that except for persons exempted, no person shall possess or use byproduct material except as authorized by a specific or general license issued pursuant to Title 10, Chapter 1, Code of Federal Regulations.

Contrary to the above, from January 2 to May 31, 1996, Construction Testing & Engineering, Inc. (CTE) possessed and used byproduct material in areas under exclusive federal jurisdiction within an Agreement State without a valid NRC license and was not exempted from the requirement for a license. (01013)

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

B. 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.

Contrary to the above, the licensee provided information to the Commission that was not complete and accurate in all material respects. Specifically, on October 16, 1997 and December 12, 1997, CTE provided information that was incomplete regarding CTE's activities involving use of byproduct materials in areas of exclusive federal jurisdiction without a valid NRC license. This information was material because it involved use of byproduct material requiring an NRC license. (02014)

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

Pursuant to the provisions of 10 CFR 2.201, Construction Testing & Engineering, 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, 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 violations, 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 Arlington, Texas
this 17th day of March 1997