EA-99-097 - Testing Engineers & Consultants, Inc.

July 8, 1999

EAs 99-097 & 99-169


Ms. Katherine Banicki, President
Testing Engineers & Consultants, Inc.
1333 Rochester Road
Troy, MI 48099

SUBJECT: NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES – $ 5,500
               (NRC INSPECTION REPORT 030-14016/98001(DNMS) AND OFFICE OF INVESTIGATION REPORT 3-1998-034)

Dear Ms. Banicki:

This refers to the NRC inspection and the investigation conducted by the Office of Investigations (OI) between July 28, 1998 and March 23, 1999, of Testing Engineers & Consultants, Inc. (TEC) at Troy, Lansing, Saginaw, and Pontiac, Michigan, locations. The purpose of the inspection was to review licensed activities and the OI investigation was conducted to follow up on actions and statements made by a TEC employee during the inspection. As a result, apparent violations of NRC requirements were identified and considered for escalated enforcement as discussed in our letter to you dated April 29, 1999. In that letter you were provided an opportunity to either discuss this case and the apparent violations at a predecisional enforcement conference or address the apparent violations in writing. You elected to provide a written response.

Based on the information developed during the inspection, the investigation, and the information provided in your letter dated May 26, 1999, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalties and the circumstances surrounding them are described in our letter dated April 29, 1999.

Violation A of the Notice involves the failure to control and maintain constant surveillance of licensed material in an unrestricted area at a temporary jobsite. Violation B involves the failure of a TEC employee to provide to NRC inspectors during the inspection complete and accurate information about where he stored a gauge during off-duty hours. Both of these violations were found to be deliberate in nature during the OI investigation. Although there were no actual safety consequences as a result of these violations, willful failures to comply with NRC requirements are of significant concern to NRC. It is essential that the NRC be able to maintain the highest trust and confidence that licensees and their employees will act with integrity and abide by requirements designed to protect public health and safety. Therefore, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, Revision 1, violations A and B have each been categorized as Severity Level III violations.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. In accordance with the civil penalty assessment process described in Section VI.B.2 of the Enforcement Policy, the NRC considered whether credit was warranted for Identification and Corrective Action. In this case, the NRC concluded that credit was not warranted for Identification because NRC staff identified the violations. Credit for Corrective Action is warranted based on the promptness and comprehensiveness of the actions taken. These corrective actions included: (1) retraining of the gauge operator was conducted by TEC management in the importance of securing the device and providing accurate and complete information; (2) circulating a memorandum to all employees reminding them not to leave gauges unattended; (3) conducting refresher training with Troy and Ann Arbor employees which included discussions on security of gauges, license procedures, audit findings, etc.; and (4) planning (by the President) to ensure all employees were reminded of the license requirements through publication in the company newsletter. This results in the assessment of a civil penalty at the base value (i.e., $2,750) for each violation.

Therefore, to emphasize the importance of compliance with all regulatory requirements including the provision of complete and accurate information to the NRC, and the unacceptability of deliberate violations, I have been authorized, after consultation with the Director of the Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the total amount of $5,500 for two Severity Level III violations. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC is corresponding directly with the gauge operator concerning these matters. You will receive a copy of that correspondence under separate cover.

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 (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

		Sincerely,
		Original Signed By James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 030-14016
License No. 21-18668-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalties

---

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTIES

 

Testing Engineers & Consultants, Inc. Troy, Michigan

Docket No. 030-14016 License No. 21-18668-01 EA 99-097 & 99-169

During an NRC inspection and OI investigation conducted between July 28, 1998 and March 23, 1999, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, Revision 1, the NRC proposes to impose civil penalties 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 particular violations and associated civil penalties are set forth below:

A.	10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in unrestricted areas. 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, unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Contrary to the above, on July 28, 1998, the licensee did not secure from unauthorized removal or limit access to a moisture density gauge containing eight millicuries (0.30 gigabecquerels) of cesium-137 and 40 millicuries (1.48 gigabecquerels) of americium-241, located at a temporary jobsite in Saginaw, Michigan, which is an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. (01013)
This is a Severity Level III violation (Supplement IV). Civil Penalty - $2,750.
B.	10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the licensee shall be complete and accurate in all material respects.   Contrary to the above, on July 28, 1998 and August 12, 1998, information provided by a licensee's engineer during a routine inspection was not complete and accurate in all material respects. Specifically, the engineer told NRC inspectors that between July 8 and 27, 1998, he returned a moisture density gauge to the office at the end of each day when in fact at the end of each work day he stored the gauge at his residence. This information is material because it had the potential to influence the NRC as to whether a violation of NRC requirements had occurred. (01023)
This is a Severity Level III violation (Supplement VII). Civil Penalty - $2,750.

Pursuant to the provisions of 10 CFR 2.201, Testing Engineers & Consultants, Inc. (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalties (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. Your response may reference or include previous docketed correspondence. 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 why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalties proposed above or the cumulative amount of the civil penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalties in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalties will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalties, 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 penalties should not be imposed. In addition to protesting the civil penalties in whole or in part, such answer may request remission or mitigation of the penalties.

In requesting mitigation of the proposed penalties, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalties.

Upon failure to pay any civil penalties 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 penalties, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil penalties, and Answer to a Notice of Violation) should be addressed to: James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region III.

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.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 8^th day of July 1999