EA-99-269 - Victor E. Rivera Associates Geotechnical Engineers

November 23, 1999

EA 99-269

Víctor E. Rivera Associates
   Geotechnical Engineers
ATTN: Mr. Víctor E. Rivera Roldan, P.E., MBA
President
P.O. Box 198
Ponce, Puerto Rico 00732

SUBJECT:

NOTICE OF VIOLATION AND EXERCISE OF ENFORCEMENT DISCRETION (NRC INSPECTION REPORT NO. 52-19885-01/99-02)

Dear Mr. Rivera:

This refers to the inspection conducted on September 29, 1999, at your Ponce, 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 results of the inspection, including five apparent violations, were discussed with Mr. Jose R. Rivera Nazario of your staff on September 29, 1999, and formally transmitted to you by letter dated October 22, 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. By letter dated November 8, 1999, you provided additional information regarding your corrective actions. A copy of your November 8, 1999 letter, a listing of conference attendees, and a copy of NRC presentation materials are 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. The violations are cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding them were described in detail in the subject inspection report. The violations involve (1) two examples of the failure to secure licensed materials (e.g., moisture/density gauges containing approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241) from unauthorized removal or access; (2) failure to limit the radiation dose in an unrestricted area to levels below two millirem in any one hour; (3) failure to post a radiation area; (4) failure to label containers of licensed material; and (5) failure to check packages for physical condition prior to shipment. At the conference, you admitted the violations; although you expressed concern regarding our conclusions relating to the potential for exposure to members of the public.

Regarding Violation A in the enclosed Notice, the failure to secure licensed materials from unauthorized removal or access in this case did not result in any of the gauges becoming lost or otherwise unaccounted for. However, the failure to adequately secure and limit access to licensed material is a significant safety issue. Implementation of adequate security measures for licensed materials is intended to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. The NRC is also concerned that you failed to correct violations of NRC regulatory requirements, including the requirement to adequately secure licensed material, following identification by your health physics consultant. The health physics consultant reported these findings to your Radiation Safety Officer (RSO), an official of your company. However, the RSO failed to take immediate corrective actions. Although the NRC recognizes your initiative both in obtaining the services of a health physics consultant to ensure compliance with regulatory requirements and in constructing a storage room for securing the gauges, your failure to implement immediate corrective actions indicates a lack of management attention and involvement in ensuring adherence to regulatory requirements. Therefore, based on the potential safety significance of this issue, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), 64 Federal Register 61142, issued on November 9, 1999, Violation A described in the Notice has been categorized at Severity Level III.

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 you have not been the subject of escalated enforcement action within the last two inspections, 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. At the conference, you stated that your corrective actions included: (1) completion of a storage facility appropriately labeled and equipped with locking devices and radiation postings; (2) locks on the gauge cases and handles; (3) appropriate security of restricted areas from unauthorized access; and (4) training of your employees on security and other license requirements. We note that your health physics consultant identified the failure to implement adequate security measures in October 1998 and in April 1999, yet you failed to implement corrective actions to restore compliance until after the NRC inspection conducted on September 29, 1999. Based on this, the NRC determined that your initial actions were not prompt and comprehensive and credit was not warranted for the factor of Corrective Action.

Based on this assessment of Corrective Action, under the Enforcement Policy a base civil penalty of $2,750 for the Severity Level III violation would normally be proposed. However, after review of this violation with the Director, Office of Enforcement, the NRC has concluded that while a violation did occur, enforcement discretion is warranted, and the issuance of a civil penalty is not appropriate in this case. Discretion is being exercised pursuant to Section VII.B.6 of the Enforcement Policy because once the NRC put you on notice of the regulatory violation and its significance, you implemented immediate and effective actions, and Victor E. Rivera Associates, Geotechnical Engineers is a small entity pursuant to the Small Business Regulatory Enforcement Fairness Act. 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 remaining violations being cited are described in the enclosed Notice and are classified separately at Severity IV, as discussed above. In addition to the corrective action described above, you also purchased new transport cases for the portable nuclear gauges with legible plates for appropriate labeling.

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,
		Luis A. Reyes Regional Administrator

Enclosures:
1.  Notice of Violation
2.  Conference Attendees

Docket No.: 030-30301
License No.: 52-19885-02

cc w/encls:
Commonwealth of Puerto Rico

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NOTICE OF VIOLATION

Víctor E. Rivera Associates Geotechnical Engineers

Docket No. 030-30301 License No. 52-19885-02 EA 99-269

During an NRC inspection conducted on September 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 violations are listed below:

A.	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 that the licensee 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; an unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Condition 19 of NRC License No. 52-19885-02, requires, in part, that gauges or their containers be locked when in storage. Contrary to the above, on September 29, 1999:
	1.	The licensee failed to secure from unauthorized removal or limit access to five Campbell Pacific Nuclear moisture/density portable gauges, containing approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241 each, located on a storage rack, within the geotechnical laboratory, an unrestricted area, and failed to control and maintain constant surveillance of this licensed material.
	2.	Four moisture/density gauges were stored in the geotechnical laboratory and neither the gauges nor their respective containers were locked. (01013)
This is a Severity Level III violation (Supplement IV).
B.	10 CFR 20.1902(a) requires that the licensee post each radiation area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, RADIATION AREA." 10 CFR 20.1003 defines radiation area, as an area accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.005 rem (0.05 mSv) in 1 hour at 30 centimeters from the radiation source or from any surface that the radiation penetrates. Contrary to the above, on September 29, 1999, the hallway in front of the storage rack for the portable moisture/density gauges, an area accessible to individuals, had radiation levels of approximately 6.7 millirem in one hour at 30 centimeters, such that an individual could receive a dose equivalent in excess of 0.005 rem (0.05 mSv) in 1 hour at 30 centimeters, yet this area was not posted with any signs bearing the words "CAUTION RADIATION AREA". (02014)
This is a Severity Level IV violation (Supplement IV).
C.	10 CFR 20.1301(a)(2) requires that the licensee conduct its operations so that the dose in any unrestricted area from external sources does not exceed 2 millirem in any one hour. Contrary to the above, on September 29, 1999, the licensee conducted operations which resulted in a dose, from external sources, of 6.7 millirem in one hour in the hallway in front of the storage rack for its portable gauges, within the geotechnical laboratory, an unrestricted area. (03014)
This is a Severity Level IV violation (Supplement IV).
D.	10 CFR 20.1904(a) requires the licensee to ensure that each container of licensed material bears a durable, clearly visible label bearing the words "CAUTION, RADIOACTIVE MATERIAL," or "DANGER, RADIOACTIVE MATERIAL." The label must also provide sufficient information (such as the radionuclide(s) present, an estimate of the quantity of radioactivity, the date for which the activity is estimated, etc.) to permit individuals handling or using the containers, or working in the vicinity of the containers, to take precautions to avoid or minimize exposures. Contrary to the above, on September 29, 1999, a container bearing a Campbell Pacific Nuclear portable moisture/density gauge, containing approximately 10 millicuries of cesium-137 and 50 millicuries of americium-241, did not have a clearly visible label bearing the words "CAUTION, RADIOACTIVE MATERIAL," or "DANGER, RADIOACTIVE MATERIAL", nor did this container or one other container bearing a moisture/density gauge, identify the radionuclides present, the quantity of radioactivity, or other sufficient information to permit individuals handling or using the container, or working in the vicinity of the containers, to take precautions to avoid or minimize exposure. (04014)
This is a Severity Level IV violation (Supplement IV).
E.	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) in 49 CFR Parts 170 through 189, appropriate to the mode of transport. 49 CFR 173.475(b) requires, in part, that before each shipment of any Class 7 (radioactive) materials package, the offeror (licensee) must insure by examination or appropriate tests, that the packaging is in an unimpaired physical condition, except for superficial marks. Contrary to the above, on September 29, 1999, the licensee transported Class 7 (Radioactive) materials in two packages which were cracked (non-superficial marks) and otherwise failed to insure by examination or appropriate tests, that the packaging was in an unimpaired physical condition. (05014)
This is a Severity Level IV violation (Supplement V).

Pursuant to the provisions of 10 CFR 2.201, Víctor Rivera Associates is required to submit a written statement of explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, Region II, within 30 days from 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, (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.

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.

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. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

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

Dated this November 23^rd day of November 1999