IR 015000041/1995001
| ML20012H572 | |
| Person / Time | |
|---|---|
| Site: | 15000041, 015000041 |
| Issue date: | 09/11/1995 |
| From: | Hosey C, Mumper J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | |
| Shared Package | |
| ML20012H571 | List: |
| References | |
| 15000041-95-01, 15000041-95-1, NUDOCS 9509220172 | |
| Download: ML20012H572 (7) | |
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a na46 UNITED STATES
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~ NUCLEAR REGULATORY COMMISSION iR'
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' REGION f fi -
o 101 MARIETTA STREET. A.W., SUITE 2900
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ATLANTA, GEORGIA 30323-0199
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bas e* $
- Report No.:
150-00041/95-01
Licensee:
Energy Technologies, Inc.
Knoxville, Tennessee l
r-Docket No.:
150-00041 License No.: ' General License
Inspection Conducted: August 28 :1995
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Inspecto'r:
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Jef rey A. Mumper, adiatipn Specialist Date Signed
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Approved by:
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///9 Charles M. Hofsff Chief f Date Signed
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Nuclear Materials Insput.on Section
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Nuclear Materials Safety and Safeguards Branch
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Division of Radiation Safety and Safeguards SUMMARY Scope:
'This announced inspection was performed tn review the circumstances
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surrounding the apparent installation of fixed gauges containing byproduct
material in areas under NRC jurisdiction by Energy Technologies, Inc. (ETI)
without possessing an NRC specific or general license.
Results:
Within the scope of this inspection, the following apparent violation was 16ntified:
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.Use of byproduct material within NRC jurisdiction without possessing an NRC specific or general license (Paragraph 3.).
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i ENCLOSURE 1 9509220172 950911[
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REPO?.i DETAILS 1.
Persons. Contacted Licensee Personnel
+ David ~ Swindell, President Mitch Ivey, En'gineer f
' U. S. Nulear Regulatory Commission
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I Hector Bermudez, Region II Senior Radiation Specialist hvid Collins, Region II Radiation Specialist
+ Attended exit meeting Program Scope
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L Energy Technologies, Inc (ETI) is licensed by the State t,f Tennessee, licensa no. R-4714P-J99 dated October 5, 1994, to manufacture,.
distribute, install and service fP
,auging devices containing not L
more than 250, 10 and 10 millict... each of Americium-241, Barium-133 l
or: Cesium-137, respectively. The gauging devices are erad for grading coal and have been installed and serviced in various an ament Ltates j
and within NRC jurisdita lon. The business had previouse; been owned by j
SAIC uatil it had been bought by the current owners who had L_en SAIC i
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employees. SAIC had been licensed by the NRC until August 25, 1993 when
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SAIC moved operations to the present location and obtained a 2 ate of-I l
l Tennessee license.
ETI employees 6 people r.ad perfor..s approximately 1
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to 2 gauge insta'lations per month.
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Licensed Materials Program (87100)
10 CFR 30.3 requires that, except for persons exeaipt as provided in this part and part 150 of this chapter, no person shall manufacturer, produce, tr.nsfer, receive, acquire, own, possess or use byproduct material except as authe zed by a specific or general license issued pursuant to the regulatior.> in this chapter.
1 10 CFR 150.20(b)(1) requires, in part, when engaging in activities in federal jurisdiction under the provisions of the general license granted by 10 CFR 150.20(a), four copies of NRC Form 241 (revised) and four i
copies of the Agreement State soecific license be filed with the Regional Administrator of the appropriate NRC Regicnal office at least
.three days prior to engaging in such activity.
During license application review for Falcon Energies, it was noted that ETI would perform the gauge installation in West Virginia, a i area of l
NRC jtvisdiction, and they did not possess an NRC license nor had they filed for recipretity by submitting the required documents to the NRC.
' nc inspector discussed the circumstances with the license reviewer who i
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stated that he made a follow up telephone call to ETI on August 4, 1995 i
j and discussed reciprocity with an individual who worker for ETI. The license reviewer stated that he discussed reciprocity with the
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individual and advised him that ETI should not install the gauge at Falcon Energy until ETI had filed the NRC Form 241 with Region II. The license reviewer went on to state that the president of ETI returned his call on August 7, 1995, and reciprocity was again discussed. The
a president of ETI was transferred to a second license reviewer who coordinates reciprocity activities in Region II who stated that he also
explained reciprocity to the individuc1 and faxed copies of NRC Form 241, reciprocity regulations and a fees scheduled to ETI.
I On August 22, 1995, an NRC inspector contacted the presider.t of ETI as a follow up to an inspection that had been performed of Select Mining of
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Wharr. cliff, West Virginia. The inspector noted that the gauging device had been installed by ETI and they were not licensed by the NRC and had i
not filed for reciprocity. Documentation of this telephone call l
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indicates that the president of ETI was informed that he was in
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violation of NRC requirements.
An announced NRC inspection was performed on August 28, 1995 at ETI's
office in Knoxville, Tennessee.
The inspector interviewed the president of ETI and examined records pertaining to services performed on nuclear i
i gauges within NRC jurisdiction and the filing of the required forms to i
work under reciprocity.
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The president of ETI stated that he had talked to Region II personnel on
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August 7, 1995 about reciprocity and had received the NRC From 241,
copie, of reciprocity regulations and a fees schedule faxed to him from
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Regica II. The inspector noted that ine faxed copies were date stamped
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i on Augast 7, 1995. The ETI official went on to state that he did not i
i remember discussing the installation of the gauging device at Falcon Energy with the license reviewers on August 7, 1995. The inspector noted that the surveys following installation of the gauging device at i
Falcon Energy were performed on August 8,1995.
When asked why ETI installed a gauging device at Falcon Energy on Aug.st 8, 1995 when he had received information on reciprocity on Augu t 7, 1995 that had not yet been filed; he stated that be was not
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given the impression that NRC Form 241 had to be filed immediately. The l
inspector noted that the cover sheet to the fax dated August 7, 1995
contained a note to contact the NRC Fees Branch. The ; resident of ETI stated that he had been asked to contau this person t3 get the correct amount of reciprocity fees and to submit that amount with his
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reciprocity notification.
Se stated that he tried to contact the individual in the Fees Branch, but was not able to discuss fees with her until August 28, 1995. The licensee also indicated that he thought the i
NRC was awtre of his activities in NRC jurisdiction because he is listed i
on his client's license applicatior, as the contractor who would supply,
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install and service the gauging device.
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V When asked about reciprocity requirements for agreement states, the ETI official indicated that each state has different reciprocity
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requirements.
He stated that he has discussed reciprocity with other
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regulatory agencies and that the only occasion where he has had to pay fees was with the State of Maryland approximately one month ago.
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t The inspector reviewed documentation associated with gauging device
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installation and service in NRC jurisdiction.
The inspector noted that ETI had installed gauging davices in NRC jurisdiction under their State of Tennessee license dated October 5, 1994 on at least three occasions.
The location and dates of installation are: Samples Mine (Catenary Coal), Cabin Creek, West Virginia, April 4,1995; Diamond T. Mine
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(RoxCoal), May 31, 1995; and Gary Mine (Falcon Energy), August 8, 1995.
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The inspector discussed corrective actions with the ETI official who stated that he did not realize that he was in violation of reciprocity
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regulations until his conversation with the Region II inspector on August 22, 1995.
At that time he suspended licensed activities in NRC
jurisdiction until he had filed for reciprocity and paid the required
fees. The inspector noted that, at the tic: of the inspection, ETI had
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ccinpleted the required NRC Form 241 and had obtained the current amount
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of the reciprocity fee to be submitted to Region II but had yet to
submit the required notification to Region II.
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3.
Exit Interview (30703)
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An exit interview was conducted on August 28, 1995, with those persons
denoted in paragraph 1.
The licensee was advised that one apparent
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violation of NRC requirements had been identified during the inspection l
l relating to the apparent use of byproduct material in NRC jurisdiction l
j without possessing an NRC specific or general license, t
The licensee provided the following dissenting comments:
1) He was not given the impression in-the conversations he had with Region II
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personnel on August 4 and 7, 1995 that he needed te immediately file for reciprocity.
The licensee stated that it was not until the conversation f
with a Region II inspector on August 22, 1995 that he understood that he l
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was in violation with NRC regulations and suspended activities in NRC jurisdiction; 2) Even though he received a fax from Region 11 discussing
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reciprocity requirements on August 7, 1995, he was told to contact the fees branch representative te obtain the revised reciprocity fee and submit that with his application. The licensee maintained that he was unable to get that information until August 28, 1995; and 3) He felt that since he is listed as the service representative on his costumer's license application, that constituted informing the regulatory agency
that ETI was working within their jurisdiction.
The licensee was advised that the apparent violation would be considered for escalated enforcement and that he could be requested to attend a predecisional enforcement conference. The licensee indicated that he would not be interested in attending.
No proprietary information is contained in this repo-t.
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i PROPOSED ENFORCEMENT CONFERENCE AGENDA
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U. S. Nuclear Regulatory Commission and
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Energy Technologies, Inc.
i Knoxville, "innessee
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September 25, 1995
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1:00 p.m.
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Introduction and Opening Remarks
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S. D. Ebneter, Regional Administrator
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II.
Discussion of the Enforcement Policy
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B. Uryc, Director i
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Enforcement and Investigation Coordination Staff l
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l III. Overview I
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Mr. Ebneter l
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Presentation of Apparent Violations j
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i B. S. Mallett, Director
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Division of Radiation Safety and Safeguards i
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Licensee Presentation l
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D. K. Swindell, President
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Energy Technologies, Inc.
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VI.
NRC follow-up Questions l
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Dr. Mallett i
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VII. ' Closing i
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Mr. Ebneter j
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u ENCLOSURE 2
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34388 F,deral Retustdar / Vcl. 60. Ns.126 / Friday, Jun) 30. 1905 / N:tices fac: ors in ernving at the oppmpnate is not held, the licennes will normally is a matter of public remrd, such as an severity level will be dependent on the be reques'rt to prcmde a written adjudicatory decision by the circumstances of the violation.
response to an inspection report,if Department of labor. In addition, with However. If a licanese refuses to correct issued, as to the licanese's views on the ine approval of b Executive Director a minor violation within a reasonable apparent violatior.s and their root fcr Operations, conferences will not be time such that it willfully continuns, the causes and a description of planned or open to the public where good cause haa violation should be categorized at least implemented corrective action.
been abown after balancing the benefit at a Severity 1.svolIV.
During the predecisional enforcement of the public observation against the conference, the li-e vendor, or potentialimpact on the agency's D. Violations of Reporting Requirements other persons will be givan an enforcement action in a particular mes.
The NRC expects licensees to provide opponunity to provide information As soon as it is determmed that a
i complete. accurate, and timely consistent with the purpose of the conference will be open to public information and reports. Acx:ordingly.
mnference, including an explanation to observation, the NRC will notify the unless otherwise categcrised in th*
the NRC of the immediate corrective limnsee that the conference will be Supplements, the severity level of a actions (if any) that were taken open to public observation as part of b violation involving the failure to make follow ng identification of the potential agency's trial program. Consistent with a required report to the NRC will be violation or nonconformance and the the agency's policy on open meetings, based upon the significance of and the long-term comprobensive actions that
- ' Staff Meetinga Open to Public."
circumstances sunuunding the matter wm taken or will be taken to prevent published September 20.1994 (59 FR that should have been reported, recunence.1.icensees. vendors, or other 48340), the NRC intends to announce However, b eeverity level of an persons will be told when a meeting is open conferences normally at least 10 untimely report in cxmtrast to no report. a predecisional enforcement conference. working days in advance of conferences may be reduced depending on the A predecisional enforcement throcB (1) notices posted in the Public h
circumstances surrounding the matter.
conference is a meeting between the Document Room. (2) a toll free A licensee will not normally be cited for NRC and the licensee. Conferences are telephone recording at 800 -952-9674, a failure to repon a condition or event normally held in the regional offices and (3) a toll-free electronic bulletin unless the licensee was actually aware and are not normally open to public board at 800-952-9676. In addition, the of the condition or event that it failed
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observation. However, a trial program is NRC will also issue a press release and to report. A licensee will. on the other being conducted to open approximately notify appropriate State liaison offimrs h:nd, normally be cited for a failure to 25 percent of all eligible conferenms for that a predecisional enforcement repon a condition or event if the public observation i.e., every fourth conference has been scheduled and that iicensee knew of the information to b*
eligible conferena involving one of it is open to public observation.
reported, but did not recognize that it _ three categories of licensees (reactor.
The public attending open
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was required to make a report.
hospital, and oth4,r materials licensees)
conferences under the trial program may V. Predecisional Enforcement will be ops
'o the public. Conferences observe but not participate in the
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Conferences will not normally be open to the public conference. It is noted that the purpose Whenever the NRC has learned of the if the enforcement action being of conducting open conferenms under axistence of a potential violation for contemplated.
the trial program is not to maximize gg) would b's taken against an public attendance, but rather to which escalated enforcement action
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appears to be warranted, or recurnng individual, or if the action. though not determine whether providing the public
nonconformance on the part of a taken against an individual, tums on with opponunities to be informed of whether an individual has committed NRC activities is compatible with the
vzndor, the NRC may provide an
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opportunity for a predectssonal wronadoing:
NRC's ability to exercise its regulatory (21 Involves signincant personnel and safety responsibilities. Therefore, enforcement conference with the failums where the NRC has requested members of the public will be allowed licensee. vendor, or other person before that the individual (s) involved be access to the NRC regional offices to taking enforcement action. The purpose present at the conference:
attend open enforament conferenms in of the conference is to obtain (3)1s based on the Endings of an NRC accordance with the ** Standard information that will assist the NRC in Office ofInvesugations report: or Operating Procedures For Providing d;termining the appropriate (4) Involves nfeguards information.
Security Support For NRC Hearings And enforcement action, such as:(1) A Privacy Act information, or information Meetings." published November 1.1991 common understanding of facts. root which could be considered proprietary: (56 FR 56251). These procedures causes and missed opportunities In addition, conferences will not provide that visitors may be subject to essociated with the apparent violations, normally be open to the public if:
personnel screening. that signs. banners.
(2) a common understanding of (5) The conference involves medical posters, etc., not larger than 18" be cormctive action taken or planned, and misadministrations or averexposures permitted, and that disruptive persons (3)a common understanding of the and the conference canno be conducted may be removed.
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significance ofissues at.d the need for without disclosing the exposeo Members of the public attending open lasting comprehensive corrective action. individual's name: or conferences will be reminded that (1)
If the NRC concludes that it has (6) The conference will be conducitd the apparent violations discussed at sufficient information to make an by telephone or the conference will be predecisional enforcement conferenme informed enforcement decision. a conducted at a relatively small are subject to further mview and may be conference will not normally be held licensee's facility, subject to change prior to any resulting unless the licensee requests it. However.
Notwithstandmg meeting any of these enforcement action and (2) the an opportunity for a conference will criteria. a conference may still be open statements of views or expressions of normally be provided before issuing an if the conference involves issues reisted opinion made by NRC employees at order based on a violation of the rule on te an ongoing adjudicatory proceeding predecisional enforcement conferenms.
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Deliberate Misconduct or a civil perelty with one or more intervenors or where or the lack thereof, are not intended to to an unlicensed person.lf a conference the evidentiary basis for the conference represent I' mal determinations or beliefa.
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ENCLOSURE 2
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Federal Registu / Vcl f 0. Nr.126 / Friday, Juni 30,1..
/ Notices 34387 Persons attending open conferences will to be under oath.Normally, ruponses management involvement in li-d be provided an opportunity to submit under oath will be required only in activities and a d6 crease in protection of written comments conomrning the tnal connection with Seventy level 1.11 or the public health and safety.
program anonymously to the regional la violation = or orders..
cHice.Tbene comments will be The NRC uses the Notice of Violation 1. Base Qvil Penalty subsequently forwarded to the Director as the usual method for formalizing the
- Re NRC imposes different levels of ci the Office of Enforcement for review existenm of a violation. lsauance of a penalties for different severity level cad consideration.
Notice of Violation is normally the only violations and different classes of When needed to pmtect the public er.formment action taken, except in licensees, vendors, and other persona.
beelth and safety or mmmon defense cases where the enterir for issuance of Tables 1A and 1B show the base civil and security, escalated enforcement civil penalties and orders, as set forth in penalties for various reactor. fuel cycle.
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action. such as the issuance of an Sections VLB and VI.C. respectively, are materials, and vendor programs. (Ovil immediately effective order, will be met. However, special circumstanms penalties issued to individuals are taken before the conferenm.In these regsrding the violation findings may determined on a case-by. case basis.) The cones. a conference may be held after the warrant discretion being exercised such structure of these tables generally takes escalated enforament action is takan.
that the NRC refrains from issuing a ineo account the grevity of the violation Notim of Violation. (See Section Vll.B.,.)
as a primary consideration and the g g.,g
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Mitigation of Enforcement Sanctions.
ability to pay as a secondary This section describes the in addition. limnsees are not ordinanly consideration. Generally, operations
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enforcement sanctions evallable to the cited for violations resulting from involving greater nuclear material NRC and specifies the conditions,under matters not within their control, such as inven:ones and greater potential which each may be used. The basic equipment failures that were not consequenas to the public and licensee cnforcement sanctions are Notices of avoidable by reasonable limnsee quality employees remive higher civil Violation, civil penalties, and ordere of assurance measures or management penalties. Regarding the secondary vanous types As discussed furtherin controls. Generally, however, licensees factor of ability of vanous claaos of Section VI.D. related admmistrative are held responsible for the, acts of their licansees to pay the civv penalties, itis cctions such as Notices of employees. Accordingly,this policy not the NRC's intention that the Nonconfonnance. Notices of Deviation.
should not be construed to excuse economic impact of a civil penalty be so
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Confirmatory Action Letters,Imten of personnel errors.
severe that it puts a limnsee out o'f Reprimand, and Demands for Informatann are used to supplement the B. CivilPenalty business (orders, rather than civil enforcement program. In selecting the A oval penalty is a monetary penalty P*nalties, are used when the intant is to
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enforcement sanctions or administrative that may be imposed for violation of (1)
suspend or terminate licensed activities)
cctions, the NRC will consider
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certain specified limnsing provirions of or adversely affects a heensee,a ability,
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enforcernent actions taken by other the Atomic Energy Act or to safely conduct hcensed, activities.
Federal o. State regulatory bodies mpplementary NRC rules or orders: (2)
The deterrent effect of oval penalties is best served when the amounts of the having conctnent jurisdiction such as any requirement for which e license in transportation matters. Usually, may be revoked: or (3) repo ung Penalties take m, to account a licename,s
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whenever a violation of NRC requirements under section 206 of the ability to pay,in determining the requirements of more than a minor Energy Reorganization Act. Civil amount of civil penalties for licensees for whom the tables do not reflect the concem is identified. enforcement penalties are designed to deter future cction 5 taken. The nature and extent of violations both by the involved licensee ability to pay or the gravity of the violation. the NRC will conrider as the enforcement action is intended to as well as by other licensees conducting reflect the seriousness of the violatior-similar activities and to emphasize the
"*C"'sary an increase or decrease on a involved. For the vast maionty of need for licensees to identify violations case-by-case basis. Normally,if a limnsee can demonstrate financial violations, a Notice of Violation or a and take prompt comprehensive Notice of Nonconformance is the normal corrective action.
hardship, the NRC will consider cction.
Civil penalties are considered for payments over time, meludmg interoat.
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Severity imval III violations. In addition, rather than reducing the amount of the A. Notice of Violation civil penalties will normally be assessed civil penalty. However, where a 11=-
A Notice of Violation is a written for Seventy level I and II violations and claims financial hardship, the licensee notice setting forth one or more knowing and conscious violations of the will normally be required to address violations of a legally binding reporting requirements of section 206 of why it has sufficient resources to safely requirement.The Notice of Violation the Energy Reorganization Act.
conduct licensed activities and pay normally requires the recipient to Civil penalties are used to ancourage license and inspection fees.
provide a wntten statement describing prompt identification and pmmpt and 2. Civil Penalty Assessment (1) the reasons for the violation or,if comprehensive conection of violations, contested, the basis for disputmg the to emp'asize compliance in a manner in an effort to (1) emphasize the violation:(2) corrective steps that have that deters future violations, and to importance of adherence to been taken and the results achieved: (3)
serve to focus licensees' attention on requirements and (2) reinforce prompt corrective steps that will be taken to violations of significant regulatory self. identification of problems and root prevent recurrence: and (4) the date concem.
causes and prompt and comprehensive when full compliance will be achieved.
Although mansPement involvement, correction of violations, the NRC The NRC may waive all or portions of direct or indirect. in a violation may reviews each proposed civil penalty on a written response to the extent relevant lead to an increase in the civil penalty, its own merits and, after considering all information has already been provided the lack of management involvement relevant orcumstances, may adjust the to the NRC in writing or documented in may not be used to mitigate a civil base civil penalties shown in Table 1A an NRC inspection report.The NRC may penalty. Allowing mitigation in the and IB for Severity Level 1. II, and HI require responses to Notices of Violation latter case could encourage the lack of violations as desenbed below.
NUREG-1600 ENCLOSURE 2