EA-99-262 - Western Soil, Inc.

November 24, 1999

EA 99-262

Western Soil, Inc.
ATTN: Mr. Max R. Laracuente, P.E.
Owner/Radiation Safety Officer
P.O. Box 345
Mayagüez, Puerto Rico 00681

SUBJECT:

NRC NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $2,750 (NRC INSPECTION REPORT NO. 52-21368-01/99-01)

Dear Mr. Laracuente:

This refers to the inspection conducted on September 28-29, 1999, at your Mayagüez, Puerto Rico facility. The purpose of the inspection was to determine whether activities authorized by your license were conducted safely and in accordance with Nuclear Regulatory Commission (NRC) requirements. The inspection also reviewed the circumstances surrounding the June 4, 1999 theft of a portable moisture/density gauge from a construction site located in Aguada, Puerto Rico. The results of the inspection, including three apparent violations, were discussed with members of your staff on September 29, 1999, and formally transmitted to you by letter dated October 19, 1999. An open, predecisional enforcement conference was conducted at the Holiday Inn in Ponce, Puerto Rico, on November 9, 1999, to discuss the apparent violations, the root causes, and your corrective actions. A copy of the NRC's presentation materials and listing of conference attendees is enclosed.

Based on the information developed during the inspection and the information that you provided during the conference, 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 Penalty (Notice) and the circumstances surrounding them were described in detail in the subject inspection report. The violation in Part I of the enclosed Notice involves the failure to secure from unauthorized removal or limit access to licensed material, and the failure to control and maintain constant surveillance of licensed material stored in the bed of a pick-up truck at a temporary job site, as required by 10 CFR 20.1801. As a result of this failure, on June 4, 1999, one of your gauges was stolen and remained in the public domain until June 7, 1999. At the conference, you admitted that the violation occurred as a result of the failure of a technician to secure the gauge and its container to the vehicle.

Although the moisture/density gauge was returned with the source rod locked and in an apparent untampered condition, the potential existed for members of the public to become exposed to radiation because of your failure to adequately secure the gauge. In this case, the gauge was not only inadequately secured and left unattended at a temporary job site, the key to the gauge also was left in a paper envelope inside the transport case. This could have facilitated direct access to the gauge by a member of the public and resulted in radiological exposure. The gauge was recovered within three days of the theft and the gauge's untampered condition indicated the unlikely possibility of radiation exposures to the public. However, based on the potential safety significance of this issue, as described in the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), 64 Federal Register, 61142, issued on November 9, 1999, the violation in Part I of the Notice has been categorized as Severity Level III.

In addition to the specific regulatory violation, the NRC is concerned with your failure to sustain performance under the corrective actions and lessons learned from a previous event. Specifically, a similar violation involving uncontrolled licensed material was identified during a March 24, 1994 NRC inspection. At that time, the license was under the ownership and control of another entity. However, in June 1997, when Western Soil assumed responsibility for the license, you committed to continuing the programs, including corrective actions for previous violations, of the prior owner. Western Soil failed to maintain the corrective actions for the prior, similar violation, although you stated at the conference that at the time of the license transfer, you had verified that adequate security measures had been implemented.

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 activities under the license have been the subject of escalated enforcement action 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.⁽¹⁾ Credit for the factor of Identification was determined to be unwarranted because the violation was identified as a result of the gauge being stolen. Western Soil's corrective actions for the violation included: (1) immediately notifying local authorities to initiate gauge recovery; (2) implementing disciplinary action against the individual involved in leaving the gauge unattended; (3) providing training for staff emphasizing the need to utilize adequate security (e.g., chains and padlocks); (4) implementing internal audits; and (5) acquiring additional locking equipment. Based on the actions of Western Soil following the theft of the device, the NRC concluded that the response was prompt and comprehensive, and that credit was warranted for Corrective Action.

Therefore, to emphasize the importance of identification of violations and in recognition of the previous escalated enforcement action, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the base amount of $2,750 for the Severity Level III violation. In addition, the issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The remaining violations being cited are described in Part II of the enclosed Notice and are classified separately at Severity Level IV. The violations include the failure to report the stolen material immediately to the NRC Operations Center as required by 10 CFR 20.1101(a)(1)(i) and the failure to transport licensed material in a package that incorporated a seal that was not readily breakable as required by 10 CFR 71.5(a) and 49 CFR 173.412(a).

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 enclosures, and your response will be placed in the Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can placed in the PDR with redaction.

If you have any questions regarding this letter, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety at (404) 562-4700.

		Sincerely,
		original signed by LAR 11/24/99
		Luis A. Reyes Regional Administrator

Enclosures:
Notice of Violation
Conference Attendees

Docket No. : 030-20563
License No.: 52-21368-01

cc w/encls:
Commonwealth of Puerto Rico

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NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY
Western Soil, Inc. Mayagüez, Puerto Rico		Docket No. 030-20563 License No. 52-21368-01 EA 99-262

During an NRC inspection conducted on September 28 and 29, 1999, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," 64 Federal Register 61142, issued on November 9, 1999, the NRC proposes to impose 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 particular violations and associated civil penalty are set forth below:

I.     Violation Assessed a Civil Penalty

10 CFR 20.1801 requires the licensee to secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. 10 CFR 20.1802 requires the licensee to control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, outside of a restricted area but inside the site boundary, access to which can be limited by the licensee for any reason; unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on June 4, 1999, the licensee failed to secure from unauthorized removal or limit access to a moisture/density portable nuclear gauge containing approximately 10 millicuries of Cesium-137 and 50 millicuries of Americium-241 located in a vehicle while at a temporary job site, which is an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. As a result, the gauge was stolen. (01013)

This is a Severity Level III violation (Supplement IV).
Civil Penalty - $2,750

II.  Violations Not Assessed a Civil Penalty

A.

10 CFR 20.2201(a)(1)(i) requires, in part, that the licensee make a telephone report to the NRC Operations Center, immediately after its occurrence becomes known to the licensee that any lost, stolen or missing licensed material in an aggregate quantity equal to or greater than 1000 times the quantity specified in Appendix C to Part 20, under such circumstances that it appears to the licensee that an exposure could result to persons in unrestricted areas. Contrary to the above, on June 4, 1999, the licensee became aware that a moisture/density portable gauge containing two sealed sources of approximately 50 millicuries of americium-241 and 10 millicuries of cesium-137, quantities equal to or greater than1000 times the quantity specified in Appendix C to Part 20 (0.001 microcuries and 10 microcuries, respectively) was stolen, and did not immediately report the occurrence to the NRC Operations Center after the theft was known. The report of the theft was made to the NRC on June 7, 1999. (02014)

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

B.

10 CFR 71.5(a) requires a licensee who transports licensed material outside of the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers licensed material to a carrier for transport, to comply with the applicable requirements of the Department of Transportation (DOT) regulations contained in 49 CFR Parts 170 through 189, appropriate to the mode of transport. 49 CFR 173.412(a) requires, in part, that the outside of a Type A package incorporate a feature, such as a seal, that is not readily breakable, and that, while intact, is evidence that the package has not been opened. Contrary to the above, on September 29, 1999, the licensee transported a moisture/density gauge containing approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241 in a Type A package that did not incorporate a feature, such as a seal that was not readily breakable, and that, while intact, would evidence that the package had not been opened. (03024)

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

Pursuant to the provisions of 10 CFR 2.201, Western Soil, Inc. 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 II, 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 the violations: (1) the reasons for the violations, or, if contested, the basis for disputing each 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 previously 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.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty proposed above or the cumulative amount of the civil penalty 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 penalty 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 penalty will be issued. Should the Licensee 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 violation 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 penalties.

In requesting mitigation of the proposed penalty, 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 penalty.

Upon failure to pay any civil penalty due which subsequently have 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.

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. Robert William Borchardt, 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 II.

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 after receipt.

Dated at Atlanta, Georgia
this 24th day of November 1999

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LIST OF ATTENDEES

Nuclear Regulatory Commission:
L. Reyes, Regional Administrator
A. Boland, Enforcement Officer
M. Lesser, Chief, Materials Licensing/Inspection Branch 2, DNMS
J. Díaz-Vélez, Health Physicist

Western Soil, Inc.
Max R. Laracuente Bernat, Owner/Radiation Safety Officer

Members of the Public
Four members of the media were present
Five members from the Commonwealth of Puerto Rico, Department of Health were present

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^1. A Severity Level III violation and $750 civil penalty were issued on June 14, 1994, (EA 94-063) for a similar violation of regulatory requirements.