EA-01-314 - Trap Rock Industries, Inc.

February 27, 2002

EA 01-314

Jerry L. Meyers
Director of Personnel and Safety
Trap Rock Industries, Inc.
P. O. Box 419
Kingston, NJ 08528

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $3,000 (NRC Inspection Report No. 030-19135/2001-001)

Dear Mr. Meyers:

This refers to the NRC inspection conducted on December 6, 2001, at your facility in Kingston, New Jersey, as well as at temporary job sites in Ewing, New Jersey, to review the circumstances associated with the apparent theft of an unattended nuclear gauge containing an 8 millicurie cesium-137 source. You reported this loss to the NRC by telephone on October 25, 2001, and you followed up that verbal report with a letter dated December 14, 2001, wherein you described actions you had taken in your unsuccessful attempts to locate the gauge. As described in the NRC inspection report sent to you on December 21, 2001, two apparent violations of NRC requirements were identified during the NRC inspection.

In the letter transmitting the inspection report, the NRC provided you the opportunity to address the apparent violations identified in the report by either attending a predecisional enforcement conference with the NRC or providing a written response to the NRC before the NRC made a final enforcement decision. You declined the opportunity for an enforcement conference, and instead you provided a response to the apparent violations in a letter dated January 30, 2002. In your response, you did not deny the violations, and you described additional corrective actions you had taken, or planned to take, to prevent recurrence.

Based on the information developed during the inspection, and the information provided in your response, the NRC has determined that two violations of NRC requirements occurred. The 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. The more significant violation involved the failure to maintain control of the gauge containing the cesium-137 radioactive source, which resulted in the apparent theft of the gauge. The violation occurred when the gauge user left the gauge (which he had placed on a portable cart) near a tree at the job site on the evening of October 24, 2001, while he went to the site construction trailer for approximately one half hour. When the gauge user returned to the area, the cart and gauge were both missing.

Although the source was in the shielded condition at the time it was left unattended, this violation is of concern to the NRC because (1) the failure to control radioactive material resulted in the subsequent loss of the source; and (2) such sources can result in substantial unintended radiation dose to an individual if the source is removed from the unshielded position. Therefore, this violation is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $3,000 is considered for a Severity Level III violation involving the loss or improper disposal of radioactive material. Because your facility has not been the subject of an escalated enforcement action within the last two years or two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Credit for corrective actions is warranted because your corrective actions were considered prompt and comprehensive. These corrective actions included, but were not limited to: (1) immediately contacting the State police and conducting a search of the area when the gauge was determined to be missing; (2) advertising the loss of the gauge in the two local newspapers, as well as offering a reward, in an attempt to retrieve the gauge; (3) having the Radiation Safety Officer counsel the responsible gauge user, as well as taking disciplinary action against him; (4) providing training to all gauge users; and (5) providing training to all road paving personnel to ensure they are aware that nuclear gauges may be at job sites and to work safely around the gauges.

Application of the normal civil penalty assessment process would not result in a civil penalty in this case. However, the revised Enforcement Policy published December 18, 2000 (effective February 16, 2001), provides that, notwithstanding the normal civil penalty assessment process, a civil penalty of at least the base amount should normally be proposed in this type of case to reflect the significance of the violation and to emphasize the importance of maintaining control of licensed material (see section VII.A.1(g) of the Enforcement Policy). Therefore, 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 (Notice) in the base amount of $3,000 for the Severity Level III violation. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

The second violation identified during the inspection involved the failure to provide the required written report to the NRC in a timely manner. Specifically, although a verbal report was made to the NRC in a timely manner, a written report was not made within 30 days of making the telephone report.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you may reference any previous correspondence that is applicable to this case to avoid repetitive submissions. 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 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 at the Public NRC Library.

		Sincerely,
		/RA/ James T. Wiggins Acting For
		Hubert J. Miller Regional Administrator

Docket No. 03019135
License No. 29-19707-01

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:  State of New Jersey

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Trap Rock Industries, Inc. Kingston, New Jersey

Docket No. 03019135 License No. 29-19707-01 EA 01-314

During an NRC inspection conducted on December 6, 2001, two violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy), NUREG-1600, the NRC proposes 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 violations and associated civil penalty are set forth below:

I.

VIOLATION ASSESSED A CIVIL PENALTY 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 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; and unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Contrary to the above, on October 24, 2001, the licensee did not secure from unauthorized removal or limit access to a Troxler Model 4640-B density gauge (containing one 8-millicure cesium-137 source) located at a temporary job site on Route 31 in Ewing, New Jersey, which is an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. This is a Severity Level III violation (Supplement VI) Civil Penalty - $3,000

II.

VIOLATION NOT ASSESSED A CIVIL PENALTY 10 CFR 20.2201(b) requires that the licensee shall, within 30 days after making a telephone report of lost, stolen, or missing licensed material, make a written report to the NRC Regional Office. Contrary to the above, on October 25, 2001, the licensee made a telephone report to the NRC indicating that a portable gauge (containing an 8-millicurie cesium-137 sealed source) was stolen on the night of October 24, 2001 from a temporary job site on Route 31 in Ewing, New Jersey, and a written report was not sent to the NRC until December 14, 2001, which is more than 30 days past the time the telephone report was made. This is a Severity Level IV violation (Supplement IV).

Pursuant to the provisions of 10 CFR 2.201, Trap Rock Industries, Inc. is required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. Your response may reference or include previous 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 why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown.

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 penalties 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, 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, 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: F. 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 I.

Because 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), to the extent possible, it should not include any personal privacy or proprietary information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. 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).

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

Dated this 27th day of February 2002