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EA-99-037 - Materials Testing Laboratory, Inc.

June 17, 1999

EA 99-037

Mr. Kevin M. Cosgrove, President
Materials Testing Laboratory, Inc.
1529 Jericho Turnpike
New Hyde Park, New York 11040


SUBJECT:   NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,750
                     (NRC Investigation Report No.1-98-034)

Dear Mr. Cosgrove:

This refers to an investigation conducted by the NRC Office of Investigations (OI) which was initiated in July 1998. Based on the OI investigation, the NRC found that a former Vice President of your company, on at least one occasion, deliberately allowed a field inspector technician to operate a nuclear gauge without proper training certification, and without the dosimetry required by the license. A copy of the synopsis of the OI investigation was forwarded to you on April 9, 1999. In that letter, the NRC informed you of the apparent violations identified as a result of the investigation, and also informed you that it might not be necessary to conduct a predecisional enforcement conference in order to enable the NRC to make an enforcement decision. Rather, the NRC provided you an opportunity to either (1) respond to the apparent violations in writing, or (2) request a predecisional enforcement conference. You provided a response in a letter dated May 20, 1999.

Based on the information developed during the investigation, and the information provided in your response, two violations of NRC requirements are being cited. The violations, which are described in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), involve at least one individual operating a nuclear gauge at a field site without (1) being properly certified, and (2) without appropriate dosimetry. In your May 20, 1999 letter, you admit the violations, and you indicate that the violations were caused by the former Vice President not following proper procedures. However, you also indicated, based on your review, that while the former Vice President exercised poor judgement in his actions, you contend that he was not malicious nor was there a pattern of circumvention of the conditions of the license.

Notwithstanding your contention, the NRC maintains that the violations were deliberate in that the former Vice President was aware of the regulatory requirements, as he admitted in an interview with OI, and he allowed the regulatory requirements to be violated. Therefore, given their willful nature, the violations have been classified as a Severity Level III problem in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, Revision 1.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation or problem. Because these violations were willful, 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. Credit for identification is not warranted since the violations were identified by the NRC. Credit for corrective actions is warranted because your corrective actions were considered prompt and comprehensive. These corrective actions, which were described in your May 20, 1999, letter to the NRC included, but were not limited to:  (1) demotion of the Vice President, as well as removal of him from any involvement in overseeing the radioactive materials program; (2) review by the Radiation Safety Officer (RSO) of the certifications for all technicians; and (3) reviews of all dosimetry reports.

Therefore, I have decided, after consultation with the Director, Office of Enforcement, to issue a Notice of Violation and Proposed Imposition of a Civil Penalty in the amount of $2,750. If not for your corrective actions, the civil penalty amount would have been higher.

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 is already adequately addressed in your letter dated May 20, 1999. Therefore, you are not required to submit a written statement or explanation to the questions contained in 10 CFR 2.201 unless the description in your letter 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 of Violation and Proposed Imposition of Civil Penalty.

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

  Sincerely,
 
ORIGINAL SIGNED BY
JAMES T. WIGGINS
 
FOR Hubert J. Miller
Regional Administrator
 

Docket No. 030-17801
License No. 31-19502-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:

State of New York
State of Connecticut

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

 
     
Materials Testing Laboratory, Inc.
New Hyde Park, New York		   License No. 31-19502-01
Docket No. 030-17801
EA 99-037
 

During an NRC investigation conducted by the NRC Office of Investigations at Materials Testing Laboratory, Inc., violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the NRC proposes a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282 and 10 CFR 2.205. The violations and associated civil penalty are set forth below:

 
A.   Condition 11.A. of License No. 31-19502-01 requires that licensed material be used by, or under the supervision of and in the presence of, the corporate RSO or individuals who had successfully completed the manufacturer's training program for gauge users and who had been designated by the Radiation Safety Officer.

Contrary to the above, in or about June 1996, licensed material (nuclear gauge) was used at temporary job sites in Connecticut by at least one individual who was not under the supervision of nor in the presence of the corporate RSO or an individual who had successfully completed the manufacturer's training program, and the individual had not completed the manufacturer's training program for gauge users. (01013)
 
B.   Condition 18 of License No. 31-19502-01 requires, in part, that the licensee shall conduct its program in accordance with statements, representations, and procedures contained in the letter dated February 26, 1991. Item 4 of the February 26, 1991 letter, Handling Procedures, requires that film badges or other dosimetry devices be worn when transporting or using the instrument.

Contrary to the above, in or about June 1996, licensed material was used at temporary job sites in Connecticut by at least one individual who did not wear a film badge or other dosimetry. (01023)
 

These violations, given their deliberate nature, represent a Severity Level III problem (Supplement VI).

Civil Penalty - $2,750.

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 was achieved is already adequately addressed on the docket in your letter dated May 20, 1999. However, you are 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 a Notice of Violation," and send it to the U.S. Nuclear Regulatory Commission, ATTN:  Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, Region I, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

Within 30 days of the date of this Notice, you may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. Should you fail to answer within the time specified, an order imposing the civil penalty will be issued. Should you elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violations listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Your attention is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

If you choose to respond, your response will be placed in the NRC Public Document Room (PDR). Therefore, to the extent possible, the response 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).

Dated this 17th day of June 1999

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