EA-97-126 - Pennsylvania Testing Laboratories

June 13, 1997

EA 97-126

Mr. Robert F. Brannon
Radiation Safety Officer
Pennsylvania Testing Laboratories
330 Franklin Street
West Pittston, Pennsylvania 18643

SUBJECT:

NOTICE OF VIOLATION, CLOSURE OF CONFIRMATORY ACTION LETTER, AND TERMINATION OF LICENSE (NRC Inspection No. 030-31040/97-001)

Dear Mr. Brannon:

Enclosed is a Notice of Violation (Notice) and License Amendment No. 3 which terminates NRC License 37-28356-01. The license is terminated based on the fact that you no longer possess licensed radioactive material, having recently transferred the two gauges that Pennsylvania Testing Laboratories possessed, and the submittal of an NRC Form 314 (Certificate of Disposition) signed by Mr. John Heller, on June 11, 1997, confirming the transfers have occurred.

You and Mr. John Heller, partners/co-owners of Pennsylvania Testing Laboratories (PTL) ceased working together some time in 1995. Since splitting up, both of you have kept a gauge at your residences, rather than at the location listed on the license. Accordingly, neither of you were authorized to possess the gauges at those locations. In addition, the gauges could not be used because the NRC issued you a Order Suspending License on January 28, 1997, for nonpayment of fees. This possession at an unauthorized location constitutes a violation of NRC requirements, and this violation, and others, are described in the enclosed Notice.

A predecisional enforcement conference was held on April 16, 1997, to discuss the violation. Your partner attended the conference but you did not. After the conference, the NRC issued a Confirmatory Action Letter (CAL) to you and your partner on April 17, 1997. The CAL specified that the gauge be transferred by April 28, 1997. Your partner transferred the gauge in his possession to Midlantic Testing on April 21, 1997, as confirmed by our discussions with the recipient of the gauge on April 24, 1997. You also transferred the gauge in your possession to Pasonick Testing on May 30, 1997, as confirmed by a facsimile sent by the recipient on May 30, 1997.

The NRC has found that the commitments listed in the CAL have been met and no further response is required regarding the CAL. However, the NRC is disappointed that you failed to transfer the gauge to an authorized recipient by April 28, 1997 as specified in the CAL. In fact, it took repeated prompting by the NRC to assure that the transfer of the gauge in your possession occurred.

The violations described in the enclosed Notice represent a breakdown in control of activities under your license. This was discussed with Mr. Heller at the enforcement conference. The violations cited in the Notice and the circumstances surrounding them were described in detail in the inspection report issued on April 1, 1997. The violations have been categorized in the aggregate as a Severity Level III problem in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. If the NRC had not terminated this license, a civil penalty would have been considered. However, since you decided to terminate licensed activities, we have suspended any further consideration of enforcement activities.

A response to this letter is not required. However, you will be required to respond to each violation listed in the Notice in accordance with 10 CFR 2.201 and describe why the NRC should have confidence that you would comply with all applicable requirements, should you apply for a license in the future. This applies to both you and Mr. Heller.

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

Questions concerning these actions should be addressed to Ms. Jenny Johansen at (610) 337-5304.

Sincerely,

Hubert J. Miller Regional Administrator

Docket No. 030-31040
License No. 37-28356-01

Enclosures:
1. Notice of Violation
2. License Amendment

cc w/encls:
Mr. John Heller, Pennsylvania Testing Laboratories
Commonwealth of Pennsylvania

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NOTICE OF VIOLATION

Pennsylvania Testing Laboratories Pittston, Pennsylvania

Docket No. 030-31040 License No. 37-28356-01 EA 97-126

During an NRC inspection conducted on March 11, 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 30.34(c) requires, in part, that each licensee confine his possession and use of byproduct materials to the locations and purposes authorized by the license.

Condition 10 of License No. 37-28356-01 limits the storage of licensed materials to Brook and Elm Streets, Moosic, Pennsylvania.

Contrary to the above, as of March 11, 1997, the licensee stored portable moisture density gauges (containing cesium-137 and americium-241), at locations not authorized by the license. Specifically, one gauge was stored at 74 Hancock Street, Wilkes Barre, Pennsylvania, and one gauge was stored at 330 Franklin Street, West Pittston, Pennsylvania. Both gauges were stored at these unauthorized locations for a period in excess of one year. (01013)

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, on September 26, 1996, the licensee provided to the Commission information that was not complete and accurate in all material respects. Specially, a letter signed by the Radiation Safety Officer, dated September 26, 1996, requests a change of address for the storage location of the density gauge. The diagram of the storage area does not accurately reflect the actual storage location at a 330 Franklin Street in West Pittston, in that, the storage area is not separated by a concrete dividing wall with a locking door with a radiation sign on it. (01023)

C. Condition No. 12 of License No. 37-28356-01 requires, in part, that sealed sources and detector cells containing licensed material shall be tested for leakage and/or contamination at intervals not to exceed six months or at such other intervals as are specified by the certificate of registration referred to in 10 CFR 32.210, not to exceed three years.

Contrary to the above, as of March 11, 1997, a sealed source (containing 10 millicuries of cesium-137 and 50 millicuries of americium-241) had not been tested for contamination or leakage at the intervals specified by the certificate of registration referred to in 10 CFR 32.210. Specifically, a Campbell Pacific Nuclear Corporation portable nuclear density gauge that had been used by the licensee had not been tested for contamination or leakage since 1994, and the Certificate of Registration requires that the source should be tested annually. This specific gauge had been used by the licensee two times within the past six months. (01033)

D. Condition No. 19 of License No. 37-28356-01 requires that the licensee shall conduct its program in accordance with the statements, representations, and procedures contained in its application, dated March 28, 1994, and a letter dated August 18, 1994.

1. Item 10.1.1. of the application dated March 28, 1994, requires, in part, that the Radiation Safety Officer will assume the certain duties and responsibilities, including ensuring that the gauge is used in accordance with all relevant regulations, including the wearing of a suitable radiation film badge. Item 1 of letter dated April 18, 1994 requires that whole body badges be exchanged monthly.

Contrary to the above, as of March 11, 1997, the Radiation Safety Officer did not ensure that the gauge was used in accordance with all relevant regulations. Specifically, the Radiation Safety Officer did not wear a suitable radiation film badge when using a portable moisture density gauge. The film badge worn by the Radiation Safety Officer when using the portable gauge had been issued in 1995 and had not been exchanged monthly. (01043)

2. Item 10.1.4 of the application dated March 28, 1994, requires, in part, that the Radiation Safety Officer will maintain the records required by the license and regulations. The application specifies that the records shall include personnel exposure, leak test records, and training certificates for all users.

Contrary to the above, as of March 11, 1997, the Radiation Safety Officer did not maintain records of personnel exposure, leak tests records, and training certificates for all users. (01053)

3. Item 10.2.B.3. requires, in part, that when the gauge is not being used for field measurements, the gauge shall have its source mechanism locked and will be locked in its transportation case.

Contrary to the above, on March 11, 1997, the gauge stored at 330 Franklin Street, West Pittston, Pennsylvania, which was not being used for field measurements, was not locked in its transportation case. (01063)

These violations have been classified in the aggregate as a Severity Level III problem (Supplement VI).

No response to this Notice of Violation is required since you have requested termination of your license; however, pursuant to the provisions of 10 CFR 2.201, if John Heller or Robert F. Brannon, were to seek an NRC license, the individual seeking such a license is required at that time, 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. The 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. The response may reference or include previous docketed correspondence, if the correspondence adequately addresses the required response.

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

Because any 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 King of Prussia, Pennsylvania
this 13th day of June 1997