IR 07100202/2030001

Panther Creek Mining, LLC - NRC Inspection Report No. 03033571/2023001

ML23278A136
Person / Time
Site:	07100202, 03033571
Issue date:	11/08/2023
From:	Paul Krohn Decommissioning, ISFSI, and Reactor Health Physics Branch
To:	Ellen Brown Panther Creek Mining
References
EA-23-095 IR 2023001
Download: ML23278A136 (1)

Text

November 8, 2023

SUBJECT:

PANTHER CREEK MINING, LLC - NRC INSPECTION REPORT 03033571/2023001

Dear D. Edward Brown:

On June 28, 2023, with continued in-office review through October 6, 2023, Shawn Seeley of this office conducted a routine inspection of licensed activities of Panther Creek Mining, LLC (PCM). The inspection was an examination of your licensed activities as they relate to radiation safety and to compliance with the Commissions rules and regulations and the conditions in your license. The inspection consisted of observations by the inspector, interviews with personnel, and a selective examination of representative records. The enclosed report presents the results of this inspection. The inspector discussed the preliminary inspection findings with Neil Kennedy, proposed Radiation Safety Officer (RSO), at the conclusion of the on-site portion of the inspection. A final exit briefing was conducted (telephonically) with Neil Kennedy, Kelly Short, and Ron Charles on October 6, 2023.

Based on the results of this inspection, five Apparent Violations (AVs) were identified, one of which is being considered for escalated enforcement action in accordance with the NRC Enforcement Policy. The current Enforcement Policy is included on the NRCs Web site at https://www.nrc.gov/about-nrc/regulatory/enforcement/enforce-pol.html. The AV being considered for escalated enforcement action is related to a failure to maintain a qualified RSO on your NRC license. The AVs not being considered for escalated enforcement action involve failures to: retain records of the radiation protection program, including physical inventories; conduct required leak tests; and perform six-month shutter checks.

Since the NRC has not made a final determination in this matter, a Notice of Violation is not being issued at this time. Please be advised that the number and characterization of the AVs described in the enclosed inspection report may change as a result of further review. You will be advised by separate correspondence of the results of our deliberations on this matter.

Before the NRC makes its enforcement decision regarding the AVs, we request that you provide additional information about your corrective actions. Specifically, the NRC notes that PCM restored compliance after approving a new RSO by submitting an amendment request on August 29, 2023 (ML23251A150), to name the RSO on the license. The amendment was approved and sent to the PCM on October 18, 2023. However, the NRC requires information about the corrective actions PCM has taken and planned to prevent reoccurrence of this violation in the future, should the named RSO vacate or leave the position. In addition, please provide for each of the AVs: (1) the reason for the AVs, or if contested, the basis for disputing the AVs; (2) the corrective steps that have been taken and the results achieved; and (3) the corrective steps that will be taken. You should be aware that the promptness and comprehensiveness of your actions will be considered in assessing any civil penalty for the apparent violation. The guidance in the enclosed excerpt from NRC Information Notice 96-28, Suggested Guidance Relating to Development and Implementation of Corrective Action, may be helpful.

The written response should be sent to the NRC within 30 days of the date of this letter. Your response may reference or include previous docketed correspondence if the correspondence adequately addresses the required response. You should clearly mark the response as a Response to Apparent Violations in NRC Inspection Report No.

03033571/2023001; EA-23-095, and send it to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555-0001 with a copy mailed to Paul G. Krohn, Director, DRSS, Region I, 475 Allendale Road, Suite 102, King of Prussia, PA 19406-1415, within 30 days of the date of this letter. If an adequate written response is not received within the time specified and an extension of time has not been granted by the NRC, the NRC will proceed with its enforcement decision or schedule a pre-decisional enforcement conference (PEC).

In lieu of providing this written response, you may request a PEC to meet the NRC and provide your views in person.

If you choose to request a PEC, the meeting should be held, within 30 days of the date of this letter. The conference will include an opportunity for you to provide your perspective on these matters and any other information that you believe the NRC should take into consideration before making an enforcement decision. The topics discussed during the PEC may include information to determine whether a violation occurred, information to determine the significance of a violation, information related to the identification of a violation, and information related to any corrective actions taken or planned. The PEC would be open for public observation, and the NRC would issue a press release to announce the conference time and date.

Please contact Chris Cahill at 610-337-5108 within 10 days of the date of this letter to notify the NRC which of the above options you choose. If you do not contact the NRC within the time specified, and an extension of time has not been granted by the NRC, the NRC will proceed with its enforcement decision.

In accordance with 10 CFR 2.390 of the NRCs Rules of Practice, a copy of this letter, its enclosures, and your response, if you choose to provide one, will be made available electronically for public inspection in the NRC Public Document Room or from the NRCs Agencywide Documents Access and Management System (ADAMS), accessible from the NRC Web site at http://www.nrc.gov/reading-rm/adams.html. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. If you have any questions concerning this matter, please contact Shawn Seeley of my staff at 610-337-5102.

Sincerely, Digitally signed by Paul G.

Krohn Paul G. Krohn Date: 2023.11.08 14:21:06 -05'00'

Paul G. Krohn, Director Division of Radiological Safety and Security Docket No. 03033571 License No. 47-25301-01

Enclosures:

Inspection Report 03033571/2023001 NRC Information Notice 96-28

REGION I==

INSPECTION REPORT Inspection No. 03033571/2023001 EA No. EA-23-095 Docket No. 03033571 License No. 47-25301-01 Licensee: Panther Creek Mining, LLC Location: Eskdale, WV Inspection Dates: June 28, 2023, with continued in-office review until October 6, 2023 Inspection Exit Date(s): June 28, 2023, onsite debrief October 6, 2023, final exit Digitally signed by Shawn Shawn W. W. Seeley Seeley Date: 2023.11.07 16:52:21 -05'00'

Inspector: _______________________ ______________

Shawn Seeley date Health Physicist Division of Radiological Safety and Security Christopher Digitally signed by Christopher G. Cahill Approved By:

G. Cahill Date: 2023.11.08

_______________________

11:10:21 -05'00'

______________

Chris Cahill, Chief date Commercial, Industrial, R&D, and Academic Branch Division of Radiological Safety and Security Enclosure

EXECUTIVE SUMMARY Panther Creek Mining, LLC NRC Inspection Report No. 03033571/2023001 A routine, unannounced inspection was performed of the Panther Creek Mining, LLC (PCM)

radioactive materials program. The license authorizes possession and use of fixed gauging devices used for continuous level indication for controlling industrial processes. The inspection was conducted with regard to NRC radioactive materials License Number 47-25301-01 and in accordance with NRC inspection procedure 87124, Fixed and Portable Gauge Programs.

The inspection was conducted on June 28, 2023, with continued in-office review until October 6, 2023. The inspection focused on the performance of the licensees program through interviews with licensee workers, independent measurements of radiation conditions at the licensees facilities, and review of selected records. An onsite debrief meeting was held on June 28, 2023, with a final exit meeting on October 6, 2023.

During the inspection, five apparent violations of NRC requirements were identified. The apparent violations involved 1) failure to maintain a qualified Radiation Safety Officer (RSO) on the NRC license, 2) failure to conduct and maintain records of physical inventories, 3) failure to conduct and maintain records of the proper operation of the on-off mechanisms (shutters),

4) failure to perform and maintain records of leak test; and 5) failure to perform an annual review of the radiation program content and implementation. The first of the previously listed apparent violations is being considered for escalated enforcement action in accordance with the NRCs Enforcement Policy. The licensee took immediate corrective actions by completing the annual audit, conducting the required semi-annual leak tests, shutter checks and inventory, and submitting an amendment to change the radiation safety officer.

REPORT DETAILS 1. Organization and Scope of the Program a. Inspection Scope The inspector reviewed the organization and scope of the licensees radioactive materials program. Information was gathered through direct observations, reviews of records, and interviews with licensee staff.

b. Observations and Findings Panther Creek Mining (PCM) is a fixed gauge licensee possessing two coal analyzers, four fixed measuring gauges and a portable gauge. The companys NRC license (issued in March 2016) authorizes the use of: Americium-241 and Cesium-137 radioactive sealed sources in a portable gauge to perform moisture content and density measurements; and Cesium-137 and Californium-252 in fixed gaugesfor elemental analysis and controlling industrial processes.

The inspector determined that the portable gauge has not been used since the previous inspection.

2. Review of Licensed Activities a. Inspection Scope The inspector performed an unannounced routine inspection utilizing NRC Inspection Procedure 87124, Fixed and Portable Gauge Programs to conduct the inspection.

Information was gathered through interviews with cognizant personnel, direct observation of licensed activities, review of records, tours of the facilities, and through the performance of independent radiation surveys.

b. Direct Observations/Interviews The inspector reviewed the use of the gauges and the environmental conditions in which the gauges were being used. The inspector interviewed the RSO to ascertain his level of knowledge of the gauges and radiation safety protocols.

Independent Radiation Measurements The inspector performed independent radiation surveys at the facility using a Ludlum Model 2401-P. The radiological surveys were taken of the accessible areas around the gauges while they were in use and all results were within applicable regulatory limits and licensee postings.

Program Oversight On June 28, 2023, the NRC arrived at the licensees facility and requested to meet with the individual listed on the NRC license as the RSO in order to conduct a routine inspection.

The individual at the gate informed the NRC that the RSO was no longer employed at PCM and to contact another individual who had taken over the duties as RSO. During the inspection, it was determined that PCM had been without an RSO for the NRC license

since January 2020. The licensee thought that an amendment request was submitted to add a new RSO. A search of ADAMS revealed that the licensee did in fact submit a letter, dated April 26, 2022, but had sent the letter to the General License program at HQ rather than the NRC RI office.

The new RSO stated that the individual named as the RSO on the PCM license retired in January 2020. He was asked to become RSO in April 2022, but left the company shortly thereafter. He was rehired in November 2022 when requested by the plant manager. The inspector explained that the NRC requires licensees to continuously maintain the services of a qualified RSO who has been approved by the NRC and listed on the NRC license. Not having an RSO is an apparent violation of License Condition 13 of NRC License Number 47-25301-01.

The inspector reviewed annual audits, authorized user training, leak test, shutter tests, and available physical inventory records. The inspector determined that an annual audit had not been conducted nor had leak tests, shutter checks, and inventories been conducted at the required intervals since the previous inspection in June 2018. Therefore, there were only a few records retrievable for review.

c. Conclusions During this inspection, five apparent violation of NRC requirements were identified. One apparent violation is being considered for escalated enforcement action in accordance with the NRCs Enforcement Policy. The apparent violation being considered for escalated enforcement is as follows:

1. License Condition 13 of NRC License No. 47-25301-01, dated March 14, 2016, authorizes a specific individual to fulfill the duties and responsibilities of the Radiation Safety Officer (RSO) for the license.

Contrary to the above, from January 2020 to April 26, 2022, the individual authorized in Condition 13 of the license did not fulfill the duties and responsibilities of RSO for the license.

Specifically, the RSO named on the license left the employment of the licensee in January 2020, and Panther Creek Mining did not submit an amendment request to name a new RSO until April 26, 2022.

2. 10 CFR 20.1101(c) states, in part, that the licensee shall periodically (at least annually)

review the radiation protection program content and implementation.

Contrary to the above, since 2018, the licensee had not periodically (at least annually)

reviewed the radiation protection program content and implementation.

3. License Condition 14.A. of NRC License No. 47-25301-01, Amendment 14, dated March 4, 2016, requires that sealed sources shall be tested for leakage and/or contamination at intervals not to exceed six months or at the intervals specified in the certificate of registration issued by the U.S. Nuclear Regulatory Commission under 10 CFR 32.210 or under equivalent regulations of an Agreement State.

Contrary to the above, since 2018, the licensee did not test its sealed sources for leakage and/or contamination at intervals not to exceed six months or at the intervals specified in the certificate of registration issued by the U.S. Nuclear Regulatory Commission under 10 CFR 32.210 or under equivalent regulations of an Agreement State.

4. License Condition 16 of License No. NRC License No. 47-25301-01, Amendment 14, dated March 4, 2016, requires the licensee shall conduct a physical inventory every six months, or at other intervals approved by the U.S. Nuclear Regulatory Commission, to account for all sources and/or devices received and possessed under the license.

Contrary to the above, since 2020, the licensee did not conduct physical inventories every six months, or at other intervals approved by the U.S. Nuclear Regulatory Commission, to account for all sources and/or devices received and possessed under the license.

5. License Condition Number 17.A. of NRC License No. 47-25301-01, Amendment 14, dated March 4, 2016, requires, in part, that each fixed gauge shall test the operation of the on-off mechanism (shutter) at intervals not to exceed six months or at such longer intervals specified in the certificate of registration issued by the U.S. Nuclear Regulatory Commission under 10 CFR 32.210 or under equivalent regulations of an Agreement State.

Contrary to the above, the licensee had not conducted their shutter checks at intervals not to exceed six months or at such longer intervals as specified in the certificate of registration issued by the U.S. Nuclear Regulatory Commission under 10 CFR 32.210 or under equivalent regulations of an Agreement State. Specifically, the devices were checked January 2019, January 2020, August 2020, May 2022 and were overdue on the date of the inspection. A time frame greater than six months with no longer period of time approved.

This is a Severity Level III problem. (Enforcement Policy Section 6.3)

Corrective actions taken by the licensee to restore compliance included:

1. Conducting the annual audit immediately following the inspection; 2. Conducting the semi-annual inventory, leak test, and shutter checks on July 10, 2023; and 3. Submitting an amendment request to name a new radiation safety officer on August 29, 2023 (ML23251A150). The amended license was received via email on October 18, 2023.

3. Exit Meeting On June 28, 2023, the inspector conducted an onsite inspection debrief meeting with the licensee. The apparent violations were discussed during the meeting and the licensee acknowledged the inspection findings. A subsequent exit meeting was conducted via telephone on October 6, 2023. The representatives acknowledged the inspection findings.

ATTACHMENT PARTIAL LIST OF PERSONS CONTACTED

• 1. Neil Kennedy, Radiation Safety Officer

1. Kelly Short, Engineering Manager

1. Ron Charles, Plant Manager

• Present at Entrance Meeting and Debrief

1. Present at Entrance and Exit Meetings INSPECTION PROCEDURES USED IP 87124, Fixed and Portable Gauge Programs LIST OF ACRONYMS USED ADAMS Agency wide Documents Access and Management System AV Apparent Violation CFR Code of Federal Regulations EA Enforcement Action PEC Pre-decisional Enforcement Conference PCM Panther Creek Mining, LLC RSO Radiation Safety Officer 6