EA-97-508 - Michigan, State of

December 5, 1997

EA 97-508

James DeSana, Director
Michigan Department of Transportation
State Transportation Building
425 Ottawa Street
Lansing, MI 48909

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report 030-04813/97001(DNMS))

Dear Mr. DeSana:

This refers to the NRC inspection conducted on October 7, 1997, at job sites located in Warren and Wayne, Michigan. The inspection included a review of two reported incidents involving damage to portable moisture/density gauges. During the inspection, apparent violations of NRC requirements were identified, as described in the NRC inspection report transmitted with our letter dated November 7, 1997. On November 21, 1997, a predecisional enforcement conference was held with Mr. C. T. Maki and others of your staff to discuss the violations, their causes, and your corrective actions.

Based on the information developed during the inspection and the information provided during the conference, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The most significant violation (Violation A in the enclosed Notice), involves the failure to control and maintain constant surveillance of gauges containing licensed material. In one case, the gauge operator placed a gauge in front of his vehicle, forgot it was there and proceeded to run it over causing damage. In another case, a gauge was damaged when it was run over by construction equipment while the operator was otherwise occupied and did not maintain constant surveillance over licensed material.

The root cause appears to be inattention to detail by the gauge operators due in part to insufficient oversight by experienced personnel. Incumbent upon each NRC licensee is the responsibility to provide the necessary oversight and control over activities for which they are authorized, especially when those activities include work at temporary jobsites. Furthermore, we are concerned that the Michigan Department of Transportation has experienced four damaged gauges while they were being used at temporary job sites since July 1997. In three of those cases, the operators responsible for the gauges ran over their own gauges, including the incident that occurred in Warren, Michigan, on September 25, 1997. The violation represents a significant regulatory concern because failure to adequately secure and control licensed material could result in a hazard to public health and safety. In addition, the NRC expects licensees to take comprehensive actions to preclude the possibility of repetitive incidents that require implementation of emergency procedures. Violation A of the enclosed Notice is classified at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

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 not been the subject of escalated enforcement actions within the last two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit for corrective actions is warranted because your corrective actions were both prompt and comprehensive. These actions included: discontinuing the use of co-ops as gauge operators until the training program has been reviewed and revised to assure that co-ops receive the oversight necessary to improve the safety of their operations; revision of the training program to include new hires as well as co-ops; increased oversight for first year gauge users; and institution of a formal management audit program.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action, that may subject you to increased inspection effort.

Violation B of the Notice, failure to perform program audits as required, is considered a Severity Level IV violation in accordance with the Enforcement Policy.

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 will be placed in the NRC Public Document Room.

Sincerely,

Original signed by J. Caldwell for A. Bill Beach Regional Administrator

Docket No. 030-04813
License No. 21-03039-01

Enclosure: Notice of Violation

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NOTICE OF VIOLATION

Michigan Department of Transportation Lansing, Michigan

Docket No. 030-04813 License No. 21-03039-01 EA 97-508

During an NRC inspection conducted on October 7, 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 20.1801 requires that the licensee secure from unauthorized removal licensed materials that are stored in an unrestricted area. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in an unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, an unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on September 25, 1997, and on October 2, 1997, the licensee did not secure from unauthorized removal or limit access to licensed material at temporary job sites in Wayne and Warren, Michigan, unrestricted areas, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, on September 25, 1997, a moisture density gauge containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 was damaged when it was run over by the operator's vehicle. On October 2, 1997, a similar device was damaged when it was run over by construction equipment at a temporary job site. (01013)

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

B. Condition 21.B. of License No. 21-03039-01 requires the licensee to conduct its program in accordance with the statements, representations, and procedures contained in a letter dated October 21, 1994, and other referenced documents.

Item 10 of the October 21, 1994 letter states, in part, that once a year a report from the Radiation Safety Officer will be presented to management and all others responsible for compliance with the licensed activities. The report shall identify deficiencies found during the ongoing audit along with corrective actions taken. Recommended changes to correct any ongoing problems will be included in the report for management to implement as soon as possible.

Contrary to the above, between November 21, 1994 and October 6, 1997, annual program audit reports were not provided to management and all others responsible for compliance with the licensed activities. (01014)

This is a Severity Level IV (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, the Michigan Department of Transportation 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 III, 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 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.

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 Lisle, Illinois
this 5th day of December 1997