[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31569]


[[Page Unknown]]

[Federal Register: December 23, 1994]


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NUCLEAR REGULATORY COMMISSION
[Docket 70-08]

 

Battelle Memorial Institute, Columbus Operations, Columbus, OH; 
Issuance of Director's Decision Under 10 CFR 2.206

    Notice is hereby given that the Director, Office of Nuclear 
Material Safety and Safeguards, has issued a decision concerning a 
Petition dated December 28, 1993, submitted by the Battelle Permit 
Opposition Committee regarding the Battelle Memorial Institute (BMI), 
Columbus, Ohio facility.
    The NRC Office of Nuclear Material Safety and Safeguards noticed 
the Petition for consideration under 10 CFR 2.206. The Petition 
requested that the U.S. Nuclear Regulatory Commission investigate the 
findings of a July 1992, audit of decontamination and decommissioning 
at BMI and to take appropriate enforcement action.
    The Director of the Office of Nuclear Material Safety and 
Safeguards has determined to grant the Petition. The reasons for this 
Decision are explained in the ``Director's Decision Under 10 CFR 
2.206'' (DD-94-11), which is available for public inspection in the 
Commission's Public Document Room located at 2120 L Street, NW., 
Washington, DC 20555.
    A copy of this Decision will be filed with the Secretary of the 
Commission for the Commission's review in accordance with 10 CFR 2.206. 
As provided by this regulation, the Decision will constitute the final 
action of the Commission 25 days after the date of issuance of the 
Decision unless the Commission, on its own motion, institutes a review 
of the Decision within that time.

    Dated at Rockville, Maryland, this 14th day of December 1994.

    For the Nuclear Regulatory Commission.
Robert M. Bernero,
Director, Office of Nuclear Material Safety and Safeguards.

Appendix A to this document--Director's Decision Under 10 CFR 2.206

I. Introduction

    On December 28, 1993, the Battelle Permit Opposition Committee 
(BPOC) filed a Petition for an investigation\1\ of certain audit 
findings involving Battelle Memorial Institute (BMI) and for 
enforcement action, as appropriate. The referenced audit findings are 
the product of an independent audit commissioned by BMI and performed 
by ATEC Associates, Inc. The Petition states that BMI appears to be a 
facility out of control in its handling of radioactive material, a 
potential threat exists to the neighborhood through BMI's operations, 
and the level of Nuclear Regulatory Commission (NRC) oversight of BMI 
activities is of concern.
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    \1\The NRC interprets ``investigation'' in this context to mean 
a review through inspection as opposed to assessing potential 
wrongdoing.
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    By letter dated March 17, 1994, the NRC acknowledged receipt of the 
request for an investigation and appropriate enforcement action, and 
informed the requester that the letter would be treated as a Petition 
in accordance with the provisions of 10 CFR 2.206 of the Commission's 
regulations and that a decision would be issued within a reasonable 
time.
    I have now completed my evaluation of the matters raised by the 
Petitioner and have determined that, for the reasons stated in this 
Decision, the Petitioner's request for an inspection and appropriate 
enforcement action for the deficiencies identified by the audit is 
granted.

II. Background

    In July 1992, BMI hired ATEC Associates, Inc., a contractor, to 
conduct an independent safety inspection or safety audit of BMI's 
radiation protection program. This audit focused on BMI's research and 
development program. The audit was self-initiated and was designed to 
be critical in nature. The audit evaluated the radiation protection 
program against NRC, Department of Energy (DOE), and Occupational 
Safety and Health Administration (OSHA) requirements, as well as other 
good control practices. Approximately 240 person-hours were devoted by 
the contractor in performing this audit. The audit identified 201 
deficiencies or weaknesses in the program. The results were provided to 
the BPOC.

III. Discussion

    In the Petition, the Petitioner requests the Commission to 
``investigate'' the findings of the audit and to take appropriate 
enforcement action to assure that the BMI's facility is operated in 
compliance with applicable requirements. In response, during the period 
January 31 through March 25, 1994, a special safety team inspection was 
conducted at the BMI's King Avenue, Columbus, Ohio, and West Jefferson, 
Ohio, facilities. Included in the inspection was a review of the three 
concerns cited by the BPOC in the Petition, as described below.

A. Control in Handling of Radioactive Material

    The Petitioner states that BMI appears to be a facility out of 
control in its handling of radioactive material.
    NRC Special Nuclear Materials License SNM-7 allows BMI to receive, 
possess, use, and transfer certain radioactive materials in the conduct 
of research and development, radiography, and decommissioning 
activities.
    Compliance with license-required actions to control handling of 
radioactive material has been confirmed by NRC inspectors during safety 
inspections. This confirmation was achieved through direct observation 
of ongoing activities, interviews with licensee staff, and examination 
of licensee records. Specific areas examined included handling and 
storage of radioactive materials, disposition of waste and maintenance 
of records in support of licensed activities. In one area of research, 
BMI used animals for various studies on the effects of radioactive 
materials. NRC reviewed the disposition of the radioactive carcasses of 
these animals through incineration as general waste. Research records 
were reviewed (typically on a random spot check basis) and calculations 
performed to confirm that the radiation levels of the carcasses were 
below NRC limits and were, therefore, acceptable for incineration as 
general waste. Confirmation was achieved. With regard to the accuracy 
of measurements of radioactive materials handled by BMI, a review of 
the data recorded on the licensee's liquid scintillation verification 
form (used to verify that general waste met 10 CFR 20.2005 levels for 
radioactive materials in unrestricted areas) indicated that the 
licensee is meeting NRC requirements. (Results of these inspections 
were documented in Inspection Reports, including that described in 
special safety Inspection Report 070-00008/94001(DRSS) dated April 26, 
1994.) Regarding storage, inspection tours of the King Avenue site 
(located in Columbus, Ohio) and West Jefferson, Ohio, site, confirmed 
that radioactive and hazardous materials were stored adequately.
    BMI is also decontaminating and decommissioning (D & D) a series of 
buildings at the West Jefferson, Ohio, and King Avenue sites. The D & D 
activities began in 1986 and are scheduled to continue through the year 
2000. The facilities undergoing D & D were toured by NRC inspectors, 
facility workers were interviewed, procedures were reviewed, and 
several radiological surveys were conducted by the inspectors. The NRC 
has concluded that the D & D work is being conducted in accordance with 
BMI's NRC license and applicable NRC regulations.
    The July 1992, ATEC audit of BMI's program did identify four 
potential violations of NRC requirements. The violations were reviewed 
by NRC during the special inspection, and it was determined by the 
inspectors that these potential violations met the criteria for non-
cited violations (as provided in 10 CFR Part 2, Appendix C) in 
accordance with the Commission's Enforcement Policy. Specifically, (1) 
they were corrected in a reasonable time, (2) were not repetitive 
violations, (3) were not willful violations, (4) were identified by the 
licensee, (5) were not violations that could reasonably be expected to 
have been prevented by the licensee' corrective action from a previous 
violation or licensing finding, and (6) were of such a nature that they 
would normally have been classified at Severity Level IV or V, which 
are the least significant severity levels. The violations were related 
to minor reporting, recordkeeping, and posting deficiencies that are 
not indicative of significant programmatic weaknesses. Consequently, 
NRC exercised discretion and considered these as non-cited violations. 
During the special inspection conducted during the period of January 31 
through March 24, 1994, the NRC identified an additional Severity Level 
IV violation which involved a failure to properly secure or maintain 
surveillance over a radioactive source. This violation was in addition 
to those identified by the auditor. As a result of this additional 
finding, a Severity Level IV Notice of Violation (NOV) was issued on 
April 26, 1994, to BMI. A Severity Level IV violation is of relatively 
minor significance, but a potential exists for an adverse impact on 
health and safety. BMI responded with appropriate corrective actions as 
described in correspondence dated May 24, 1994.
    The staff has concluded on the basis of the NRC's inspection and 
evaluation of BMI's radiological control program and ongoing D & D 
activities, that the licensee has implemented and is maintaining a 
radioactive materials handling program and radioactive waste management 
program that is adequate to protect the radiological safety of 
employees and the public. Although the ATEC audit reported 201 
deficiencies and weaknesses, the NRC found that only a few were of 
regulatory significance, and the NRC took appropriate action, including 
enforcement action for the repetitive violation for failure to secure a 
laboratory. In order to identify deficiencies and correct them in a 
timely manner in the future, the staff supports licensees' efforts to 
aggressively perform self assessments such as the ATEC audit.

B. Threat to the Neighborhoods

    The Petitioner states that a potential threat exists to the 
neighborhoods through BMI's operations.
    As stated earlier, BMI uses radioactive materials in the conduct of 
research and development, radiography, tracer studies, and conducts 
decommissioning activities. The research and development activities 
include the use of small amounts of radioactive materials for tracer 
studies and the use of gas chromatographs which contain small amounts 
of radioactive materials. The radiography activities include the use of 
two sealed radioactive sources. An additional sealed source is 
possessed but is kept in storage for future use.
    The decommissioning activities are a result of research work 
conducted as far back as the 1940's. BMI was contracted to perform 
research activities regarding the use of nuclear fuel and other nuclear 
materials. During the conduct of these research activities, small 
amounts of nuclear materials were unintentionally deposited on floors, 
walls, machines, and other items involved in the research. BMI is 
currently in the process of performing D&D on the equipment, work 
areas, and other items. This extensive effort is expected to be ongoing 
for several years.
    With approval from the NRC and the DOE, BMI has developed and 
implemented procedures to safely D&D these items. The D&D activities 
are routinely inspected (average of once per year) by the NRC and DOE 
(through the DOE resident inspector) to ensure the safety of employees 
and the public. The inspections have shown that BMI is performing the 
D&D activities in accordance with its license.
    Environmental monitors are located on the fence line of the BMI 
boundaries at the King Avenue site and West Jefferson site. Results of 
BMI's air monitoring, ground water sampling, sediment sampling, and 
vegetation analysis indicate that they are well within NRC regulations 
in 10 CFR Part 20 for release of radioactive materials. As such, the 
NCR has determined that the effluent releases pose no threat to the 
neighborhoods and are within NRC requirements.
    Based on NRC's evaluation of the radiological safety environmental 
monitoring requirements in BMI's license and confirmation of BMI's 
compliance with those requirements through routine and special 
inspections, NRC staff concludes that BMI's radiological program is 
adequate to protect the radiological safety of employees and the public 
and is being conducted in accordance with applicable requirements.

C. NRC Oversight

    The Petitioner states that because BMI has stated that it passed 
NRC inspections, the audit findings raise a concern over the level of 
oversight that BMI is receiving from the NRC. From the Petitioner's 
point of view, the large number of BMI audit findings calls into 
question the effectiveness of the NRC inspections.
    NRC inspections at BMI over the past seven years have focused 
primarily on activities related to nuclear fuel-related issues and 
decommissioning activities, areas which were considered to be of the 
greatest health and safety significance. Twelve inspections were 
conducted at BMI from May 1986 until July 1993. These inspections 
identified two violations and two areas of concern\2\ which were of 
minor health and safety significance. The items identified were 
evaluated and corrected in a timely manner. Two recent inspections, 
July and November 1993, identified no violations of NRC requirements.
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    \2\May 12 through 16, 1986, One violation, no concerns:
    One violation: 10 CFR 71.5(a), 49 CFR 173.411(b)(1)--greater 
than 200 mR/hr on outside of flatbed hauling radwaste to Barnwell. 
State of South Carolina identified the readings and the readings 
were corrected by BMI. NRC issued a NOV on June 12, 1986, after 
readings were identified by South Carolina and corrected by 
Battelle; therefore, no response to NOV was required because it was 
of minor health and safety significance and was immediately 
corrected once identified.
    January 12 through 16, 1987 One violation, no concerns:
    One violation: A retired reactor facility 10 CFR 50.10(a) 
license expired without a timely renewal. NRC determined that this 
was an administrative issue and of minor health and safety concern. 
A NOV was issued February 10, 1987. The renewal was submitted 
subsequently.
    October 23 through 25, 1991. No violations, two concerns:
    First concern: The bioassay data reviewed by the NCR revealed 
that two individuals had positive uptakes of U-238. BMI showed that 
these levels were below the 10 CFR Part 20 limits; therefore, no 
further action taken.
    Second concern: An exit monitor was removed from a building 
being decontaminated. BMI replaced the monitor with friskers for 
personnel to use before leaving building. A portal monitor was then 
put in place for personnel to walk through prior to leaving the 
building. NRC determined that no further correspondence was 
necessary due to this corrective action.
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    During this seven year period, a limited review was performed by 
the NRC of the other research and development activities and the 
radiography program. These reviews included evaluations of data derived 
from records related to environmental monitoring, personnel exposures, 
environmental protection, waste management, the use of radioactive 
materials in field studies, and tracer studies. These reviews 
identified no additional problems.
    The special inspection performed at BMI during the period January 
31 through March 25, 1994, did not identify any violations of major 
safety significance in any of BMI's licensed activities covered by the 
ATEC audit. However, the special inspection made an additional finding 
of one potential violation due to failure to secure a laboratory that 
was a violation similar to one identified in the ATEC audit findings, 
and which was also of minimal safety significance. A Severity Level IV 
Notice of Violation was issued for this violation on April 26, 1994, as 
previously mentioned.
    The special inspection identified one concern, namely, that the 
structure of BMI's license led to the emphasis by NRC on nuclear fuel-
related and decommissioning activities. NRC has decided that more in-
depth review and inspection of BMI's research and development 
activities and radiography program are appropriate, thus increasing the 
NRC oversight of this licensee. To effectively address these issues it 
was determined that responsibility for BMI's license should be 
transferred from NRC Headquarters to the Region III Office, and the 
license should be divided into three separate licenses, each addressing 
specific license areas. This decision was made when NRC staff concluded 
that previous inspections had been too sharply focussed on the nuclear 
fuel-related and decommissioning activities. Moving licensing 
responsibility to the Region III Office increased and diversified NRC 
inspection activities at the site. Responsibility was transferred on 
March 18, 1994.
    With regard to the implications of previous oversight of BMI's 
licensed program, the NRC evaluated all 201 of the audit findings and 
determined that, as of the date of the special inspection (January 31-
march 25, 1994), BMI adequately addressed all 201 of the ATEC audit 
findings and adequately resolved all but two of them as discussed in 
the following paragraphs. The BMI staff, during their review of the 
ATEC audit findings, found that two of the audit findings had broader 
implications that required further investigation. Specifically, these 
involved failure to secure a laboratory and accounting of radioactive 
sources.
    NRC's review of the ATEC audit documentation determined that the 
description of the audit findings was vague, thus making it difficult 
to determine if some findings were related to NRC regulations or 
license conditions. As a result, the NRC took a conservative approach 
to these findings, and any finding that could be remotely related to 
NRC regulations or license conditions was considered a potential 
violation. These potential violations identified from the ATEC audit 
findings were then grouped into six categories to facilitate a 
determination of whether there were any violations of NRC requirements. 
The potential violations are as follows:
    (A) Failure to inform the NRC on a timely basis of a Radiation 
Safety Officer (RSO) change;
    (B) Failure to provide training to personnel;
    (C) Failure to calibrate a survey instrument at the proper 
frequency;
    (D) Failure to secure laboratories which contained radioactive 
materials;
    (E) Failure to utilize the proper radiation postings; and
    (F) Failure to account for radioactive sources.
    At the time of the special inspection, which was initiated on 
January 31, 1994, Items D and F remained unresolved. Items A, B, C, and 
E are addressed below. In regards to Item D, the inspection determined 
that the failure to secure laboratories containing radioactive material 
had been corrected for those laboratories identified in the audit. 
However, during the special inspection another separate laboratory, not 
identified in the ATEC audit findings, was identified which was not 
properly secured in accordance with 10 CFR 20.1801 (see discussion 
above). This matter is discussed in Inspection Report 070-00008/
94001(DRSS) dated April 26, 1994.
    Item F, the inability to account for several sources, was reviewed 
in detail with the licensee. The BMI personnel contend that the sources 
were either properly disposed of as radioactive waste, transferred to 
an authorized recipient, or remain in storage in the hot cells awaiting 
decommissioning. Through the efforts of both the BMI personnel and the 
NRC, information was gathered demonstrating that this appears to be a 
recordkeeping issue. The information accumulated was based on NRC 
review of BMI documents and interviews with BMI personnel and other NRC 
licensees working in conjunction with BMI in the conduct of research 
activities. Based on our review, NRC is confident that the sources are 
not in the public domain or in an unrestricted area of the facility. 
The NRC will continue to monitor this issue during future inspections.
    The remaining potential violations (Items A, B, C, and E) are being 
treated as non-cited violations and are detailed in the indicated 
sections of Inspection Report 070-00008/94001(DRSS) dated April 26, 
1994, as discussed below:
    Item A--Failure to inform the NRC on a timely basis of an RSO 
change (Section 3). The licensee changed the RSO without prior 
notification to or approval by the NRC, although an amendment request 
was submitted at a later date and approved. The finding was considered 
to be of an administrative nature, an isolated violation, was 
identified by BMI, was not a violation that could reasonably be 
expected to have been prevented by the licensee's corrective actions by 
a previous violation or licensee finding that occurred within the past 
two years of the inspection at issue, or the period within the last two 
inspections; was corrected in a reasonable time, and was not a willful 
violation. Accordingly, the NRC exercised discretion, and the finding 
was considered to be a non-cited violation.
    Item B--Failure to provide training to personnel (Section (7). The 
licensee identified that training was not being provided to personnel 
based upon the ATEC audit. That audit further identified the training 
issue was a recordkeeping problem. For example, training was provided, 
but records were not kept adequately. At least 30 BMI employees 
interviewed indicated that they were provided initial radiation safety 
training but, through administrative error, the training was not 
properly recorded in the BMI records. The finding was considered to be 
of minor health and safety significance, was corrected in a reasonable 
time, was not a violation that could reasonably be expected to have 
been prevented by the licensee's corrective action for a previous 
violation or licensee finding that occurred within the past two years 
of the inspection at issue, or the period within the last two 
inspections; and was not a willful violation. Accordingly, the NRC 
exercised discretion and the finding was considered to be a non-cited 
violation.
    Item C--Failure to calibrate a survey instrument at the proper 
frequency (Section 9). The BMI ATEC audit identified that one survey 
instrument out of approximately 50 possessed by BMI had not been 
calibrated for approximately one year. The licensee inventoried all 
survey instruments and initiated tracking of their calibration dates. 
The NRC reviewed and confirmed the license inventory. The finding was 
considered to be of an administrative nature, was not a violation that 
could reasonably be expected to have been prevented by the licensee's 
corrective action for a previous violation or licensee finding that 
occurred within the past two years of the inspection at issue, or the 
period within the last two inspections; was corrected in a reasonable 
time, and was not a willful violation. Accordingly, the NRC exercised 
discretion, and the finding was considered to be a non-cited violation.
    Item E--Failure to utilize the proper radiation postings (Section 
16). The ATEC audit identified a number of potential NRC-related 
posting deficiencies. Based upon that audit finding the license took an 
aggressive approach to post areas where required. NRC verified that the 
posting deficiencies were corrected. The finding was considered to be 
of minor health and safety significance, was corrected in a reasonable 
time, was not a violation that could reasonably be expected to have 
been prevented by the licensee's corrective action for a previous 
violation or licensee finding within the past two years of the 
inspection at issue, or the period within the last two inspections; and 
was not a willful violation. Accordingly, the NRC exercised discretion, 
and the finding was considered to be a noncited violation.

Remaining Audit Findings

    The remaining audit findings were related to Battelle's research 
and development safety program. These findings involved questionable 
laboratory practices and portions of the radiation safety program where 
OSHA, not NRC, requirements applied. The NRC referred the findings 
concerning questionable laboratory practices and relevant radiation 
safety issues to OSHA for resolution. The ATEC auditor, in some cases, 
also did not have additional relevant information that would have 
mitigated some audit findings. BMI identified corrective actions for 
the audit findings by conducting reviews of the laboratory facilities; 
interviews with BMI employees; and a review of records and documents 
that were associated with the general health and safety of BMI 
employees and the public.
    A copy of NRC Inspection Report 070-00008/94001(DRSS) dated April 
26, 1994, was provided to the Petitioner on June 7, 1994. There will be 
no further action regarding this matter, since the NRC considers the 
concerns resolved. Future NRC inspections will be directed to specific 
program areas, consistent with the restructured license, to focus 
inspections by the type of nuclear material and activity involved, 
i.e., special nuclear material, byproduct material, and broad scope 
license activities such as radiography and tracer studies. NRC will 
continue to support efforts by licensees, including BMI, to implement 
effective self assessments and implement timely corrective actions when 
deficiencies and weaknesses are identified.
    The Petitioner's concern regarding NRC oversight was substantiated. 
As described above, action has been taken to enhance NRC oversight of 
BMI's licensed program.

IV. Conclusion

    The Staff has carefully considered the request of the Petitioner. 
In addition, the Staff has evaluated the bases for the Petitioner's 
request. For the reasons discussed above, I conclude that the 
Petitioner has raised valid issues related to BMI's compliance with NRC 
requirements and the NRC's licensing and oversight of the BMI facility. 
Accordingly, the Petitioner's request for an investigation and 
enforcement action pursuant to 10 CFR Sec. 2.206 is granted as 
described in this Decision, and appropriate enforcement and other 
actions for the ATEC audit related deficiencies have been taken as 
described above. In addition, as described above, appropriate action 
has been taken by the NRC staff to address the NRC's oversight of BMI's 
licensed activities.
    As provided by 10 CFR Sec. 2.206(c), a copy of this Decision will 
be filed with the Secretary of the Commission for the Commission's 
review. The Decision will become the final action of the Commission 
twenty-five (25) days after issuance unless the Commission, on its own 
motion, institutes review of the Decision within that time.

    Dated at Rockville, Maryland, this 14th day of December 1994.

    For the Nuclear Regulatory Commission.
Robert M. Benero,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 94-31569 Filed 12-22-94; 8:45 am]
BILLING CODE 7590-01-M