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EA-99-253 - Material Testing Consultants, Inc.

November 22, 1999

EA 99-253

Mr. Steven M. Elliot, P.E., President
Material Testing Consultants, Inc.
693 Plymouth NE
Grand Rapids, MI 49505

SUBJECT: NOTICE OF VIOLATION
(NRC Inspection Report 030-13918/99002(DNMS)

Dear Mr. Elliot:

This refers to the inspection conducted on September 10 through October 5, 1999, at Materials Testing Consultants, Inc. in Grand Rapids, Michigan. The purpose of the inspection was to review an incident involving damage to a moisture-density gauge on July 13, 1999. As a result, two apparent violations of NRC requirements were identified and considered for escalated enforcement as discussed in our letter to you dated October 13, 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 and the information provided in your letter dated November 10, 1999, 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.

One violation involves the failure to control licensed material in an unrestricted area. As a result of this failure, a density gauge containing a nominal 8 millicuries of cesium-137 and 40 millicuries of americium-241 was struck and damaged on July 13, 1999. Specifically, while at a temporary jobsite in Grand Rapids, Michigan, the gauge operator removed the device from his vehicle and placed it on the ground. He then got into his truck and moved it approximately 100 feet away from the gauge. In the meantime, a front-end loader ran over the device causing damage to the source rod and to the internal electronics. The second violation occurred when the operator failed to follow the emergency procedures, in that he left the device in its damaged condition unattended to telephone the Radiation Safety Officer.

Incumbent upon each NRC licensee is the responsibility to protect public health and safety by ensuring that radioactive materials are controlled at all times. The NRC recognizes that radiation surveys revealed no excessive radiation or contamination levels from the damaged moisture/density gauge. Nevertheless, the failure to maintain security or constant surveillance of licensed material and to fully follow emergency procedures, represents a significant failure to meet license commitments and responsibilities and is of concern to the NRC. Therefore, these violations are classified in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III problem. Because your facility has been the subject of escalated enforcement actions within the last two inspections, 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. Since the violations were identified by the Licensee, the NRC has determined that credit for identification is warranted. The NRC has also determined that credit is warranted for corrective actions based on the following: (1) a safety review meeting was held with all authorized gauge users to discuss the incident and to review security and control at temporary jobsites; (2) the operator was suspended for three days and placed on probationary work status for three months; and (3) management increased its supervision of licensed activities to emphasize the importance of maintaining control of licensed material.

Therefore, to encourage prompt and comprehensive corrective actions, 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. 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 reasons for the violation, and the corrective actions taken and planned to correct the violation and prevent recurrence are already adequately addressed in your letter dated November 10, 1999. Therefore, you are not required to respond to this letter 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.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, the enclosed Notice, and your response if you choose to respond, will be placed in the NRC Public Document Room.

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

Docket No. 030-13918
License No. 21-15281-02

Enclosure: Notice of Violation

NOTICE OF VIOLATION

Material Testing Consultants, Inc.
Grand Rapids, Michigan		   Docket No. 030-13918
License No. 21-15281-02
EA 99-25

During an NRC inspection conducted on September 10 through October 5, 1999, 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:


1.   10 CFR 20.1801 requires, in part, that the licensee secure from unauthorized removal or access licensed materials that are stored in unrestricted areas. 10 CFR 20.1802 requires, in part, 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 13, 1999, the licensee did not secure from unauthorized removal, limit access to, nor control and maintain constant surveillance of licensed material in an unrestricted area. Specifically, a Troxler moisture density gauge containing a nominal 8 millicuries (0.3 GBq) of cesium-137 and 40 millicuries (1.48 GBq) of americium-241 was left unattended and was damaged while at a temporary jobsite. (01013)
2.   Condition 19 of License Number 21-15281-02 requires that licensed material be possessed and used in accordance with statements, representations and procedures contained in the application dated October 28, 1994.

Item VII of the application dated October 28, 1994, requires, in part, in the section entitled, "Emergency Procedures," that in the event of an accident causing damage to the gauge, the authorized user shall maintain control of the gauge and the surrounding area and enlist the help of others at the scene to call the Radiation Safety Officer (RSO).

Contrary to the above, on July 13, 1999, an accident causing damage to a moisture density gauge containing licensed material occurred at a temporary jobsite and the authorized user did not maintain control of the device or the surrounding area and did not enlist the help of others to contact the RSO. Specifically, the authorized user left the device unattended to call the RSO. (01023)

These violations represent a Severity Level III problem (Supplement VI).

The NRC has concluded that information regarding the reasons for the violation, and the corrective actions taken and planned to correct the violation and prevent recurrence is already adequately addressed in a letter from Material Testing Consultants, Inc. dated November 10, 1999. However, you are required to respond to the provisions of 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, D.C. 20555, with a copy to the Regional Administrator, Region III, 801 Warrenville Road, Lisle, Illinois 60532-4351, within 30 days of the date of the letter transmitting this Notice of Violation.

If you contest this enforcement action, 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 Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

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.

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

Dated this 22nd day of November 1999

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