EA-01-126 - Turabo Corporation

June 20, 2001

EA-01-126

Turabo Corporation
ATTN: Leonidas R. Almonte
President and Radiation Safety Officer
P.O. Box 6705
Caguas, Puerto Rico 00726

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $3,000 (NRC Inspection Report No. 52-25133-01/01)

Dear Mr. Almonte:

This refers to the inspection conducted on April 17, 2001, at your Caguas, Puerto Rico facility and at temporary job sites located outside of Caguas and Ceiba, Puerto Rico. 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 the apparent violations, were discussed with members of your staff on April 17 and May 9, 2001, and formally transmitted to you by letter dated May 18, 2001. Based on the results of the inspection, an open predecisional enforcement conference was conducted at the NRC's Region II office in Atlanta, Georgia, on June 6, 2001, to discuss the apparent violations, their significance, the root causes, and your corrective actions. A listing of conference attendees and the materials presented by the NRC and the Turabo Corporation at the conference 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. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. Violation A in Part I of the Notice involves your failure to maintain control and constant surveillance of licensed material as required by 10 CFR 20.1801 and 1802. Specifically, during the inspection on April 17, 2001, the NRC observed that the storage room which housed the portable gauges was unlocked and was not under constant surveillance. The storage room was accessible to unauthorized personnel through an open garage door, and contained two portable moisture density gauges, each containing about 8 millicuries (mCi) of cesium-137 and 50 mCi of americium-241.

At the conference, Turabo admitted this violation as well as the other violations described below and cited in Part II of the Notice. Turabo stated that the violations were attributable to human performance issues, unclear management expectations, and lack of management oversight and follow-up. In the case of Violation A cited in Part I of the Notice, no radioactive material was lost as a result of the failure to properly secure the gauges; however, the potential existed for access to them by unauthorized individuals. Given that the gauge operating handles and transportation cases were also not locked, unknowing and untrained individuals could have accessed the gauges with the potential for unnecessary radiological exposures. In addition, this violation is of particular concern to the NRC because of your previous experience in March 2000 in which one of your technicians failed to secure and subsequently lost a portable gauge. Although the particular circumstances surrounding the two occurrences are different, they both indicate a lack of sensitivity and diligence in maintaining adequate control over licensed materials. Therefore, Violation A in Part I of the Notice has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions - May 1, 2000" (Enforcement Policy), NUREG-1600, as amended on December 18, 2000, at Severity Level III.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3000 is considered for a Severity Level III violation. Because your facility has been the subject of escalated enforcement actions within the last two years,⁽¹⁾ the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process described in Section VI.C.2 of the Enforcement Policy. Credit was determined to be unwarranted for the factor of Identification in that the violation was observed and identified by the NRC. Regarding the factor of Corrective Action, your immediate action at the time of the inspection was to secure the gauge storage location. At the conference, you stated that the following additional corrective actions had been taken: (1) establishment of a formal Radiation Safety Program/Policy and revision of procedures associated with security of material, dosimetry, and record keeping; (2) replacement of the storage room door to provide greater security, addition of a lock to the gauge storage cabinet, and distribution of a common key to all authorized users; (3) planned upgrade of the door closing mechanism to provide automatic closure of the storage room door; (4) conduct of training for all technicians regarding required dosimetry usage and other license requirements; (5) implementation of a bi-monthly auditing program of technicians and their assigned gauges to verify continued compliance with security, dosimetry, leak testing, inventory and transportation requirements; (6) leak testing of all portable gauge devices; (7) posting of dosimetry and gauge leak testing information visible to technicians removing gauges from storage; and (8) greater management attention to the Radiation Safety Program by reassigning and training an individual to have primary oversight of the program. Based on these actions, the NRC determined that credit was warranted for the factor of Corrective Action, resulting in a proposed base civil penalty.

Therefore, to emphasize the importance of control of licensed material and of prompt identification of violations, and in recognition of your 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 $3,000 for the Severity Level III violation cited in Part I of the Notice. Similar violations in the future could result in further escalated enforcement action and substantial civil penalties. You should also be aware that on February 16, 2001, an amendment to the Enforcement Policy became effective which provides for the consideration of a civil penalty of up to $15,000 for all cases involving lost sources in the quantities and forms you possess. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

As described in Part II of the Notice, four additional violations are being cited. Based on the overall significance and nature of the violations, they have each been categorized at Severity Level IV. These violations involved failures to maintain records of required inventories, to wear required dosimetry devices, to leak test gauges at the required frequency, and to maintain shipping papers readily accessible and current with the correct emergency contact number.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence are already adequately addressed on the docket in this letter and your in June 6, 2001, submittal provided at the conference (Enclosure 4). Therefore, you are not required to respond to the provisions of 10 CFR 2.201 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, Enclosures 1-4, 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 Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site (the Public NRC Library).

		Sincerely,
		/RA/
		Luis A. Reyes Regional Administrator

Docket No. 030-32029
License No. 52-25133-01

Enclosure:   Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:  Commonwealth of Puerto Rico

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Turabo Corporation Caguas, Puerto Rico

Docket No.030-32029 License No. 52-25733-01 EA-01-126

During an NRC inspection conducted on April 17, 2001, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions - May 1, 2000," NUREG-1600, as amended on December 18, 2000, 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.	Violations Assessed a Civil Penalty
A.	10 CFR 20.1801 requires that the licensee 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 by 10 CFR 20.1003, a controlled area means an area, outside of the restricted area but inside the site boundary, access to which can be limited by the licensee for any reason; and an unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Contrary to the above, on April 17, 2001, the licensee failed to secure from unauthorized removal or access two portable moisture-density gauges, each containing approximately eight millicuries (mCi) of cesium-137 and 50 mCi of americium-241 which were located in an unlocked storage area in Caguas, Puerto Rico, an unrestricted area. In addition, the licensee did not maintain constant surveillance over the unlocked portable gauge storage area.
This is a Severity Level III violation (Supplement IV). Civil Penalty - $3,000
II.	Violations not Assessed a Civil Penalty
A.	License Condition 19 states that the licensee shall conduct its program in accordance with the statements, representations, and procedures contained in the documents submitted in the revised application, dated March 8, 1991. The application, dated March 8, 1991, Page 4 states, in part, that a routine duty of the Radiation Protection Officer (RPO) is to check that personnel use and submit their film badges monthly. Contrary to the above, as of April 16, 2001, the RPO failed to assure that all personnel used their film badge. Specifically, on April 16, 2001, a licensee technician did not wear a film badge or other personal dosimeter when making about 20 compaction tests with a portable moisture-density gauge containing licensed materials. The technician discovered and reported the missing dosimeter to the Operations Manager on or about April 9, 2001, and as of the date of the inspection, had not been provided with a replacement dosimeter.
This is a Severity Level IV violation (Supplement VI).
B.	License Condition 14.A(1) requires that sealed sources possessed by the licensee be tested for leakage and/or contamination at intervals not to exceed six months. Contrary to the above, as of April 17, 2001, sealed sources possessed by the licensee were tested for leakage and/or contamination at intervals in excess of six months. Specifically, the licensee leak tested several portable gauges on August 17, 2000, December 2, 1999, and February 24, 1999, a frequency which exceeded six months. In addition, other gauges had not been leak tested since December 6, 1999, a period which exceeded six months.
This is a Severity Level IV violation (Supplement VI).
C.	License Condition 16 requires that the licensee conduct a physical inventory every six months to account for all sources and/or devices received and possessed under the license, and that the records of inventories shall be maintained for two years from the date of each inventory. Contrary to the above, between March 23, 2000 and April 17, 2001, the licensee did not maintain records of physical inventories conducted to account for all sources and/or devices received and possessed under the license.
This is a Severity Level IV violation (Supplement VI).
D.	License Condition 15 states that the licensee may transport licensed material in accordance with the provisions of 10 CFR Part 71, "Packaging and Transportation of Radioactive Material." 10 CFR 71.5 requires that each licensee who transports licensed material outside 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, shall comply with the applicable requirements of the Department of Transportation (DOT) regulations in 49 CFR parts 170-189 appropriate to the mode of transport. 49 CFR 172.201(d) requires that a shipping paper must contain an emergency response telephone number, as prescribed in Subpart G of 49 CFR 172. 49 CFR 177.817(e) further requires that shipping papers must be in the pocket of the left door or readily visible to persons entering the driver's compartment and within arm's reach of the driver. Contrary to the above, on April 17, 2001, the licensee failed to comply with the requirements of License Condition 15, 10 CFR 71.5, and applicable sections of 49 CFR as evidenced by the following:
	(1)	Shipping papers describing radioactive materials which were being transported to and from a temporary job site were not in the pocket of the left door or readily visible to persons entering the driver's compartment and within arm's reach of the driver. Specifically, the shipping papers observed by the inspector were located at the licensee's temporary job site near Caguas, Puerto Rico; and
	(2)	(2). Shipping papers describing radioactive materials being transported to and from temporary job sites listed an incorrect, non-working emergency response telephone number. The papers observed by the inspector were located at the licensee's temporary job sites near Caguas and Cieba, Puerto Rico.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violation and prevent recurrence and the date when full compliance was achieved are already adequately addressed on the docket in the letter transmitting this Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and your June 6, 2001, submittal provided at the conference (Enclosure 4). However, you are required to submit a written statement or explanation pursuant to 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, DC 20555 with a copy to the Regional Administrator, Region II, within 30 days of the date of the letter transmitting this Notice.

Within the same time 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 penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254 by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 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 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty, 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 violations 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 penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.C.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 has 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, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Frank J. Congel , 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 .

If you choose to respond, your response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site (the Public NRC Library). Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

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

Dated this 20 ^th day of June 2001

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^1. A Notice of Violation involving a Severity Level III problem was issued to the Turabo Corporation on June 12, 2000 (EA-00-088).