EA-99-168 - Envirocare of Utah, Inc.

August 16, 1999

EA 99-168

Charles A. Judd, President
Envirocare of Utah, Inc.
American Towers Commercial
46 West Broadway, Suite 240
Salt Lake City, Utah 84101

SUBJECT:  NRC INSPECTION REPORT 40-8989/99-02 AND NOTICE OF VIOLATION

Dear Mr. Judd:

This refers to the routine inspection conducted on May 11-13, 1999, at the South Clive disposal facility. This inspection consisted of a review of management organization and controls, site operations, radiation protection, and environmental monitoring. A preliminary exit briefing was conducted onsite on May 13, 1999, a followup telephonic exit briefing was conducted on July 2, 1999, and a final telephonic exit briefing was conducted on August 4, 1999 with members of your staff. The enclosed report presents the results of that inspection.

During the inspection, the NRC reviewed the circumstances associated with Envirocare's January 20, 1999, telephonic notification to the NRC that doses in certain unrestricted areas might have exceeded the 100 mrem per year limit specified in 10 CFR 20.1301(a)(1). In accordance with 10 CFR 20.2203(a)(2), Envirocare submitted a written report on this issue by letter dated February 19, 1999. The NRC requested further information on April 7, 1999, to which you responded on May 7, 1999.

During the July 2 exit briefing, we informed Envirocare that the NRC was considering a violation for escalated enforcement action in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, and offered Envirocare an opportunity to request a conference or to respond to the apparent violation in writing. The violation involved a failure to perform adequate surveys in accordance with 10 CFR 20.1501 in order to demonstrate compliance with 10 CFR 20.1301(a)(1). We informed Envirocare that, based on our review of the inspection findings and Envirocare's letters of February 19 and May 7, 1999, the NRC believed that it had sufficient information to make an enforcement decision. In addition, we noted that since your staff identified the violation and based on our understanding of your corrective action, a civil penalty may not be warranted in accordance with Section VI.B.2 of the Enforcement Policy. However, we stressed that a final decision had not yet been made. Your staff agreed that Envirocare had no more substantive information to provide, and did not see any benefit to discussing the issue further. As such, the NRC is making its final enforcement decisions.

Based on the information obtained during the inspection and Envirocare's letters dated February 19 and May 7, 1999, the NRC has concluded that a violation of 10 CFR 20.1501 occurred. Although no member of the public was actually overexposed, we note that one of your employees (who is not a radiation worker) received approximately 82 mrem for calendar year 1998. (Employees who are not radiation workers are considered members of the public.) The significance of the violation rests with the potential that a member of the public realistically could have received an exposure in excess of the 100 mrem per year limit. Our conclusion about the realistic potential for an overexposure is based on the fact that Envirocare was not controlling either the source term or the exposure time. The source term could realistically have been greater, resulting in an overexposure, and exposure time could have been longer, also resulting in an overexposure. As a result, this violation is classified at Severity Level III in accordance with the Enforcement Policy.

In accordance with the Enforcement Policy, a civil penalty in the base amount of $5500 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement actions within the last 2 years, 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. The corrective actions were described in your February 19, 1999 letter, and included items such as performing a detailed dose rate survey of the restricted area boundary, relocating items in order to reduce the radiation levels in unrestricted areas, notifying regulatory agencies, conducting additional training, and revising appropriate procedures. As a result of your corrective actions, the NRC has determined that Envirocare is deserving of Corrective Action credit.

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.

The NRC has concluded that information regarding the reason for this violation, the corrective actions taken and planned to correct this violation and prevent recurrence and the date when full compliance was achieved is already adequately addressed on the docket in the attached inspection report and in the letters from Envirocare dated February 19 and May 7, 1999. Therefore, you are not required to respond to this violation unless the description therein 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.

During this inspection, the NRC identified two additional violations as cited in the attached Notice of Violation both of which have been classified as Severity Level IV violations. One of these violations involved a failure to submit to the NRC a consolidated groundwater sampling report that summarizes the quarterly groundwater data and analyses as part of the annual reporting requirement specified in License Condition 12.2. License Condition 12.6 requires, in part, that annual reports be submitted by March 31 of the following year. This violation is of concern because of the importance NRC places on the accuracy and timeliness of reporting required information. The final violation involved a failure to comply with the requirements of Criterion 7A, 10 CFR Part 40, Appendix A for effectively implementing a ground-water detection monitoring program. This violation is of concern because it indicates that your groundwater monitoring program was not capable of detecting levels of certain constituents requiring action on your part as required by your license.

With respect to your response to this final violation, we also request that you provide information concerning original data provided with your license application to support site specific license limits. Specifically, as discussed in Section 4.1 of the report, you now question whether your analytical laboratories can provide detection limits lower than the license limits. However, we note that the license limits were based on analytical results originally submitted with your license application which met lower limits of detection. Therefore, we request that you discuss the reliability of the original data provided in support of the license and why the lower limits of detection could be met at the time of license application but not now.

You are required to respond to these Severity Level IV violations and should follow the instructions specified in the enclosed Notice when preparing your response. For your consideration and convenience, NRC Information Notice 96-28, "SUGGESTED GUIDANCE RELATING TO DEVELOPMENT AND IMPLEMENTATION OF CORRECTIVE ACTION," is enclosed. 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 enclosures, and your response should you choose to provide one will be placed in the NRC Public Document Room.

Should you have any questions concerning this inspection, please contact Mr. Douglas Simpkins at (817) 860-8220 or Dr. D. Blair Spitzberg at (817) 860-8191.

		Sincerely,
		/s/
		Ellis W. Merschoff Regional Administrator

Docket No.: 40-8989
License No.: SMC-1559

Enclosure:. Notice of Violation

cc w/Enclosures:
Mr. K. Alkema
Envirocare of Utah, Inc.
46 Broadway, Ste. 240
Salt Lake City, Utah 84101


Mr. Pat Mackin, Assistant Director
Systems Engineering & Integration
Center for Nuclear Waste Regulatory Analyses
6220 Culebra Road
San Antonio, Texas 78238-5166

Utah Radiation Control Program Director

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ENCLOSURE 1 NOTICE OF VIOLATION
Envirocare of Utah, Inc. Clive, Utah		Docket No.: 40-8989 License No.: SMC-1559 EA 99-168

During an NRC inspection conducted from May 11 through August 4, 1999, three 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 20.1501 requires that each licensee make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation. Contrary to the above, for calendar year 1998, the licensee did not make adequate surveys to assure compliance with 10 CFR 20.1301(a)(1), which limits the total effective dose equivalent from licensed operation to individual members of the public to 0.1 rem in a year. Specifically, the licensee had not been monitoring certain locations at the restricted area boundary, and found certain locations in the unrestricted area that exceeded the 0.1 rem in a year limit. Adequate surveys were not performed in these areas, which are accessible to members of the public and realistically could have resulted in doses in excess of 10 CFR 20.1301(a)(1). (01013) This is a Severity Level III violation (Supplement IV).
B.	License Condition 12.2 states, in part, the licensee shall submit to the NRC a consolidated groundwater sampling report that summarizes the quarterly groundwater data and analyses as part of the licensee's annual reporting requirement. License Condition 12.6 requires, in part, that annual reports be submitted by March 31 of the following year. Contrary to the above, as of the date of this inspection, the licensee had not submitted a consolidated sampling report that summarizes the quarterly groundwater data and analyses as part of the licensee's annual reporting requirement. (02014) This is a Severity Level IV violation (Supplement VI).
C.	License Condition 11.1states, in part, that the licensee shall implement groundwater monitoring programs throughout the duration of the license, to include a) that the licensee shall conduct detection monitoring, compliance monitoring, corrective action monitoring, and post-closure monitoring in accordance with Criteria 5 and 7 of 10 CFR Part 40, Appendix A. Criterion 7A states, in part, the initial purpose of the [detection monitoring] program is to detect leakage of hazardous constituents from the disposal area so that the need to set ground-water protection standards is monitored. (03014) Contrary to the above, a detailed review of the licensee's groundwater monitoring program found that from the third quarter of 1997 to the time of the inspection, the licensee's groundwater monitoring program was not conducted in a manner such that it was capable of detecting leakage of hazardous constituents as required by 10 CFR Part 40, Appendix A. During that period, various laboratory analytical results reported by the licensee did not have sufficient lower limits of detection to detect exceedance above limits specified in the NRC license. Specifically, during this period the licensee's lower limits of detection exceeded the site specific license limits for beryllium, molybdenum, selenium, thorium-230, and thorium-232. This is a Severity Level IV violation (Supplement VI).

For Violation A, the NRC has concluded that information regarding the reasons for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence and the date when full compliance will be achieved is already adequately addressed on the docket in this inspection report and in the letters from Envirocare dated February 19 and May 7, 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, within 30 days of the date of the letter transmitting this Notice of Violation.

For Violations B and C, pursuant to the provisions of 10 CFR 2.201, Envirocare of Utah, Inc., is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, 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 or severity level, (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.

If you contest any of these violations, you should also provide a copy of your response, with the basis for your denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001. Under the authority of Section 182 of the Atomic Energy Act, 42 U.S.C. 2232, any such response shall be submitted under oath or affirmation.

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).

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

Dated this 16^th day of August 1999