EA-97-209 - Hurt & Proffitt, Inc.

June 24, 1997

EA 97-209

Hurt & Proffitt, Inc.
ATTN: Mr. Charles F. Hurt, President
2524 Langhorne Road
Lynchburg, Virginia 24501-1602

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 45-15226-01/97-01)

Dear Mr. Hurt:

This letter refers to the routine inspection conducted on March 20, 1997, by the Nuclear Regulatory Commission (NRC) at your materials testing laboratory in Lynchburg, Virginia. The purpose of the inspection was to review the implementation of your radiation safety program with respect to regulatory requirements and the conditions of your byproduct materials License issued by the NRC. The results of the inspection were discussed with you on March 20 and April 9, 1997, and were formally transmitted to you by letter dated May 9, 1997. That letter also provided you the opportunity to respond to the apparent violations in writing or request a predecisional enforcement conference. Subsequently, you declined a conference, and by letter dated

May 29, 1997, you submitted additional information to us regarding the apparent violations, the root causes, and your corrective actions to preclude recurrence, as requested in our letter dated May 9, 1997. We have reviewed the inspection results and the additional information you provided and have concluded that sufficient information is available to determine the appropriate enforcement action in this matter.

Based on the information developed during the inspection and the information that was provided in your May 29, 1997, letter, 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 involves multiple failures to conduct leak testing of the sealed sources contained in your portable nuclear gauges at the required six-month frequency. During the period January 1, 1993, through March 20, 1997, you failed to conduct timely leak testing on eleven occasions. Seven of nine licensed portable gauges were affected by the violation; however, at the time of the inspection, only one of the gauges had exceeded its current leak testing interval.

Although the actual and potential safety consequences of Violation A were minimal, the failure to conduct required leak testing is of significant regulatory concern due to your repetitive failure to implement lasting and effective corrective actions. Specifically, violations related to leak testing of your portable nuclear gauges have been identified in each of the last three NRC inspections at your facility. NRC Inspection Report No. 45-15126-01/87-01 issued on August 27, 1987, identified one instance where you failed to comply with leak testing requirements. NRC Inspection Report No. 45-15126-01/91-01, issued on November 7, 1991, identified nine instances where you again failed to leak test licensed material. In response to these Notices of Violation, you instituted various corrective actions including affixing labels to the gauges indicating the last leak test date and synchronizing the test dates for the gauges in your possession to more easily track testing due dates. Based on the findings of the recent inspection, it appears the corrective actions were effective for several years; however, the actions were not lasting and did not preclude recurrence of the violation. In fact, your conduct of leak testing has degraded even further as indicated by the increase in the number of failures.

Based on the overall safety significance, Violation A described in the enclosed Notice normally would be categorized as a Severity Level IV violation in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. However, as provided in Section IV.B of the Enforcement Policy, the severity level of a Severity Level IV violation may be increased to Severity Level III, if the violation can be considered a repetitive violation. In consideration of your continued poor performance in this area, the NRC has concluded that the current violation is appropriately categorized at a Severity Level III. The primary basis for this determination is the NRC's expectation that licensees implement programs which are effective in ensuring that regulatory requirements are met and that corrective actions for identified deficiencies are comprehensive and lasting.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2250 is considered for a Severity Level III violation occurring after November 12, 1996, (61 Federal Register 53554). Because your Lynchburg, Virginia 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. In your May 29, 1997, letter, you stated that your corrective actions for Violation A included the following: (1) conduct of leak testing of all your nuclear gauges with no leakage identified; (2) discussion of the violations with the testing laboratory manager and technicians; (3) implementation of a computerized system for tracking leak test requirements and notifying the Radiation Safety Officer, the laboratory manager, and technicians when each gauge is to be tested; and (4) increase in the frequency of leak testing from every six months to quarterly. Although previous corrective actions were ineffective, based on the above, the NRC determined that the corrective actions for the current violation appear comprehensive and that credit was warranted for the factor of Corrective Action.

Therefore, to encourage prompt and comprehensive corrective action for violations, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty.

The remainder of the violations cited in the enclosed Notice have each been categorized at Severity Level IV. These violations include: (1) the failure to lock gauges or their containers when in storage; (2) the failure to conduct hazmat training for individuals who use and transport your licensed gauges; and (3) the failure to include all required information on gauge shipping papers (e.g., an emergency telephone number and the "RQ" designation). Your May 29, 1997, letter also described corrective actions for these violations.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance will be achieved are already adequately addressed on the docket in your letter to the NRC dated May 29, 1997. Therefore, no response to this letter is required unless the description therein or described above does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

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

Sincerely,

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

Docket No. 030-08609
License No. 45-15126-01

Enclosure: Notice of Violation

cc w/encl:
Commonwealth of Virginia

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NOTICE OF VIOLATION

Hurt & Proffitt, Inc. Lynchburg, Virginia

Docket No. 030-08609 License No. 45-15126-01 EA 97-209

During a routine Nuclear Regulatory Commission inspection conducted on March 20, 1997, 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. License Condition No. 14 requires, in part, that sealed sources be tested for leakage and/or contamination at intervals not to exceed six months.

Contrary to the above, on at least 11 occasions during the period January 1, 1993 through March 20, 1997, the licensee failed to test seven of its nine portable nuclear gauges, containing up to 10 millicuries (mCi) of cesium-137 and/or 50 mCi americium-241, for leakage and/or contamination at the required six-month intervals. (01013)

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

B. License Condition No. 19 requires that each portable nuclear gauge have a lock or outer locked container designed to prevent unauthorized or accidental removal of the sealed source from its shielded position. The gauge or its container must be locked when in transport, storage, or when not under the direct surveillance of an authorized user.

Contrary to the above, on March 20, 1997, the licensee failed to lock six portable nuclear gauges or their containers when they were in storage. (02014)

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

C. License Condition No. 15 states that the licensee may transport licensed material in accordance with the provisions of 10 CFR Part 71, "Packaging and Transportation of Radioactive Material."

10 CFR 71.5(a) requires each licensee who transports licensed material outside the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers licensed material to a carrier for transport, to comply with the applicable requirements of the Department of Transportation regulations in 49 CFR Parts 170 through 189.

1. 49 CFR 172.201(d) requires that a shipping paper must contain an emergency telephone number, as prescribed in subpart G of 49 CFR Part 172.

Contrary to the above, during the period March 3 - 20, 1997, the licensee transported portable nuclear gauges containing licensed material with shipping papers that did not contain an emergency telephone number. (03014)

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

2. 49 CFR 172.203(c)(2) requires that the letters "RQ" be entered on the shipping paper either before or after the basic description required by 49 CFR 172.202 for each hazardous substance.

Contrary to the above, during the period March 3 - 20, 1997, the licensee transported portable nuclear gauges containing licensed material with shipping papers that did not contain the letters "RQ" entered on them. (04014)

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

3. 49 CFR 172.702(a) requires a hazmat employer to ensure that each of its hazmat employees is trained in accordance with the requirements prescribed in 172.702 and 172.704.

Contrary to the above, as of March 20, 1997, three of the licensee's (hazmat employer's) authorized users (hazmat employees) who routinely use and transport portable nuclear gauges had not received any hazmat training as prescribed in 172.702 and 172.704. (05014)

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

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance will be achieved are already adequately addressed on the docket in your letter to the NRC dated May 29, 1997. However, Hurt & Proffitt, Inc. is required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to Notice of Violation," and send it 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).

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

If you choose to provide a response, it will be placed in the NRC Public Document Room (PDR), and 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.

Dated at Atlanta, Georgia
this 24th day of June 1997