EA-00-031 - NDT Services, Inc.

October 17, 2000

EA-00-031

NDT Services, Inc.
c/o Crossland Boiler Sales and Service, Inc.
ATTN: Mr. Thomas B. Crossland, Owner
P.O. Box 4952, Suite 370
Caguas, PR 00726-4952

SUBJECT:

NOTICE OF VIOLATION AND EXERCISE OF ENFORCEMENT DISCRETION (NRC OFFICE OF INVESTIGATIONS REPORT NO. 2-1997-021 AND INSPECTION REPORT NOS. 52-19438-01/98-01 AND 52-19438-01/99-01)

Dear Mr. Crossland:

This refers to an investigation initiated by the Nuclear Regulatory Commission (NRC) Office of Investigations (OI) on August 26, 1997; inspections conducted on February 6 and 18, 1998, and January 12-14, 1999; an Order Suspending License (Effective Immediately) issued on March 27, 1998; and an Order Modifying License (Effective Immediately) issued on January 15, 1999. The purpose of the investigation was to determine whether radiography operations at NDT Services, Inc. (NDTS) were conducted safely and in accordance with regulatory requirements. Areas reviewed included personnel training, dosimetry usage, conduct of radiation surveys, completion of survey records, the alleged performance of radiography by assistant radiographers without direct supervision, an alleged 1995 source disconnect event, the failure to report the event, and alleged discrimination against assistant radiographers for raising safety concerns. The investigation did not substantiate that discrimination occurred, but identified numerous examples of the failure to comply with NRC requirements. By letter dated March 6, 2000, you were informed of the apparent violation and provided a copy of the synopsis to the OI report and a summary of each issue with a corresponding discussion of supporting evidence.

In the March 6, 2000 letter, you were provided the opportunity to request a predecisional enforcement conference, provide a written response to the apparent violation, or advise us in writing that you did not wish to contest the violation. Although a member of your family signed the certificate of receipt for the March 6, 2000 letter, to date we have not received any written or verbal response from you on this matter. Accordingly, we are taking enforcement action based on all of the available information.

Based on the information developed during the inspections and the OI investigation, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding it are described in our March 6, 2000 letter and the subject inspection reports. The violation involves the failure of two former NDTS Radiation Safety Officers (RSOs), during their respective tenures between 1994 and 1995 and between 1995 and 1999, to ensure that radiation safety activities were performed in accordance with approved procedures and regulatory requirements, as required by 10 CFR 34.42 and Condition 21 of the NDTS license. Specifically, the violation involves ten examples of the failure of the RSOs to meet their regulatory responsibilities.

The failure of the NDTS RSOs to ensure that radiation safety activities were being performed as required is very significant in that these individuals were specifically tasked with the responsibility for providing oversight of the radiation safety program and assuring that activities were conducted safely and in accordance with regulatory and license requirements. Of particular concern is the fact that two of the examples described in the Notice were a result of deliberate actions on the part of the RSO in 1995, who was also the President of NDTS at the time. Specifically, in early 1995, a source disconnect event occurred during radiographic operations at the Phillips Puerto Rico Core site. The RSO was aware of the event and the associated regulatory reporting requirement, but deliberately failed to report the occurrence to the NRC, as described in Example A of the Notice. Furthermore, as described in Example B of the Notice, when questioned by an NRC representative in June 1995 regarding whether any reportable events had occurred, the RSO provided inaccurate information to the inspector when he indicated that no reportable events had occurred.

In addition to the deliberate failure by the former RSO to report the 1995 source disconnect event, the multiple failures to comply with 10 CFR 34.42 and Condition 21 of the NDTS license are indicative of an overall lack of oversight of radiographic operations and lack of regard for requirements by the RSOs which resulted in the following widespread failures: (1) to conduct radiation surveys; (2) to establish radiological postings; (3) to maintain radiation levels in unrestricted areas below regulatory limits during radiographic operations; and (4) to provide direct supervision of assistant radiographers performing radiographic operations. As described in the Notice, a number of these failures, specifically Examples C though H, were also determined to involve deliberate actions on the part of licensee radiographers. Regarding Example C, two NDTS senior radiographers, who were knowledgeable of regulatory requirements, permitted assistant radiographers to conduct radiographic operations without the direct supervision of a qualified radiographer on numerous occasions. In one instance, unsupervised radiography and improper handling by the assistant radiographer directly contributed to the source disconnect event which occurred at the Phillips Puerto Rico Core site in 1995.

The deliberate aspects of Examples D through G were directly witnessed by an NRC inspector during the February 1998 inspection. Specifically, the inspector observed violations of regulatory requirements during the conduct of field radiography and promptly advised the radiographer of the violations, applicable license requirements, and the correct methodology for conducting the activities. Despite the notification by the inspector, the radiographer failed to implement appropriate actions and committed the same violations immediately following the inspector's statements. Based in part on these observations, on March 28, 1998, the NRC issued an Order suspending NDTS' license pending further investigation. Subsequently, on January 15, 1999, the NRC issued an Order requiring, among other things, that the licensee permanently transfer its licensed material to an authorized recipient based on direct observation that licensed material was not being adequately controlled. NDTS transferred all licensed material in its possession to authorized recipients on January 27, 1999 and March 16, 1999.

The NRC expects licensee officials to comply with regulatory requirements associated with licensed activities and to take actions to ensure compliance by their employees. The deliberate failures described above, particularly on the part of the former RSO and President of NDTS, undermine the regulatory process and NRC's assurance that activities can be conducted safely and in accordance with regulatory requirements. Additionally, the pervasiveness of the failures, including those of a nondeliberate nature, underscores NDTS's inability to identify, correct, report and preclude compliance problems. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions- May 1, 2000" (Enforcement Policy), NUREG-1600, at Severity Level I.

In accordance with the Enforcement Policy, a civil penalty normally is considered for a Severity Level I violation. However, after consultation with the Director, Office of Enforcement, the Deputy Executive Director for Materials, Research and State Programs, and the Commission, the NRC has concluded that while the violation did occur, enforcement discretion is warranted, and the issuance of a civil penalty is not necessary in this case. Discretion is being exercised pursuant to Section VII.B.6 of the Enforcement Policy because NDTS has transferred all licensed material to authorized recipients; NDTS is no longer conducting business or licensed activities; and NDTS has requested that the license be terminated. Amendment No. 14 which completes termination of your license is enclosed. Were these not the circumstances, significant enforcement action would have been warranted.

Also, be advised that Orders Prohibiting Involvement in NRC-Licensed Activities have been issued to the individual who was RSO in 1995 as well as two former senior radiographers for their deliberate misconduct in violation of 10 CFR 30.10. Copies of these Orders are enclosed for your information.

As you have transferred all licensed material and your license has been terminated, you are not required to respond to the Notice unless the description herein does not accurately reflect your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice. In addition, you are advised that should you become involved in NRC-licensed activities in the future, you may be required to address the issues in the enclosed Notice of Violation to provide NRC with reasonable assurance that you will comply with NRC requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and any response you provide will be 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/
		Luis A. Reyes Regional Administrator

Enclosure: Notice of Violation

cc w/encl:  Commonwealth of Puerto Rico

Mr. Thomas B. Crossland, Jr.
c/o Mr. Thomas Crossland, Sr.
11839 FM 2478
Celina, TX 75009

---

NOTICE OF VIOLATION
NDT Services, Inc. Caguas, PR 00726		Docket No. 030-17711 License No. 52-19438-01 EA-00-031

During an NRC Office of Investigations investigation initiated on August 26, 1997 and inspections conducted on February 6, and 18, 1998, and January 12-14, 1999, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions - May 1, 2000," NUREG-1600, the violation is listed below:

10 CFR 34.42 requires, in part, that the licensee's Radiation Safety Officer (RSO) ensure that radiation safety activities are performed in accordance with approved procedures and regulatory requirements in the daily operation of the licensee's program. Condition 21 of License No. 52-19438-01 requires, in part, that the licensee conduct its program in accordance with the statements, representations and procedures contained in the license application dated October 25, 1991. Contrary to the above, between 1994 and January 14, 1999, two of the licensee's former RSOs, during their respective tenures, did not ensure that radiation safety activities were performed in accordance with approved procedures and regulatory requirements in the daily operation of the licensee's program, as evidenced by the following:

	A.	In 1995, the licensee's RSO deliberately failed to report an event involving the inability to retract a 75 curie iridium-192 radiography source assembly to its fully shielded position (a "source disconnect event"), in violation of 10 CFR 34.30, the requirement in effect at the time of the occurrence;
	B.	In June 1995, the licensee's RSO deliberately provided inaccurate information to an NRC inspector during an inspection, in violation of 10 CFR 30.9. Specifically, in response to the inspector's question regarding whether any reportable events had occurred since the previous inspection, the RSO indicated that the licensee had not had any reportable events since the previous inspection when, in fact, a source disconnect event had occurred at the Phillips Puerto Rico Core site earlier in the year which the RSO knew was reportable. The omitted information was material to the NRC in that it prevented NRC from exercising its regulatory responsibility to evaluate the event;
	C.	On numerous occasions between 1994 and 1998, the licensee willfully permitted assistant radiographers to conduct radiographic operations without the direct supervision of a qualified radiographer, in violation of 10 CFR 34.46 or equivalent requirement in effect at the time of the occurrence. The actions of two senior radiographers in this regard were deliberate, and in one case in early 1995, the deliberate failure of one of the senior radiographers to supervise assistant radiographers contributed to a source disconnect event at the Phillips Puerto Rico Core site;
	D.	On February 6, 1998, in an unrestricted area located on Level 9 of the Puerto Rico Electric Power Authority's Costa Sur Power Station Unit No. 5, the licensee deliberately created radiation levels in excess of two millirem in one hour, in violation of 10 CFR 20.1301. In addition, on numerous other occasions between 1994 and 1998, the licensee created radiation levels in unrestricted areas in excess of two millirem in one hour;
	E.	On February 6, 1998, on Level 9 of the Puerto Rico Electric Power Authority's Costa Sur Power Station Unit No. 5, the licensee deliberately failed to post a radiation area, as defined in 10 CFR 20.1003, in violation of 10 CFR 20.1902(a). In addition, on numerous other occasions between 1994 and 1998, the licensee failed to properly post radiation areas during radiographic operations;
	F.	On February 6, 1998, on Level 9 of the Puerto Rico Electric Power Authority's Costa Sur Power Station Unit No. 5, the licensee deliberately failed to conduct surveys and continuous monitoring of the area, as required by Condition 21 of the License and Item 6.3.1 of the application dated October 25, 1991. In addition, on numerous other occasions between 1994 and 1998, the licensee failed to conduct required surveys during radiographic operations;
	G.	On February 6, 1998, on Level 9 of the Puerto Rico Electric Power Authority's Costa Sur Power Station Unit No. 5, the licensee deliberately failed to control access to a restricted area in violation of Condition 21 of the License and Item 6.6.1. of the application dated October 25, 1991. In addition, on numerous other occasions between 1994 and 1998, the licensee failed to control access to restricted areas during radiologic operations;
	H.	On October 4, 1997, the licensee deliberately failed to provide complete and accurate information on a Field Site Radiation Survey Report which documented the dosimetry readings of an assistant radiographer, in violation of 10 CFR 30.9. Specifically, a licensee radiographer documented an assistant radiographer's dosimeter reading as zero at the beginning of the shift knowing that the information was not correct. The actual reading which should have been documented was approximately 30 millirem. This information was material to the NRC in that it was required to be documented in accordance with 10 CFR 34.47(b) to ensure that exposures were properly monitored and tracked.
	I.	Between January 12 and 14, 1999, and for an undetermined period of time prior to January 12, 1999, the licensee failed to control access to licensed materials stored in an unrestricted area, in violation of 10 CFR 20.1801; and
	J.	As of June 1995, the licensee failed to maintain records of source utilization and surveys of radiographic activities conducted at the Phillips Puerto Rico site in early 1995 (e.g., the time of the source disconnect event), as required by 10 CFR 34.71 and 10 CFR 20.2103. (01011)

This is a Severity Level I violation (Supplements IV, VI and VII).

The NRC has concluded that information regarding the reason for the violation and the corrective actions taken to correct the violation are already adequately addressed on the docket in the cover letter transmitting this Notice of Violation (Notice). However, NDT Services, Inc. is required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your position. In that case, or if you chose 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, D.C. 20555 with a copy to the Regional Administrator, Region II, within 30 days of the date of the letter transmitting this Notice.

If you submit a response to this enforcement action, you should also provide a copy of your response, with the basis for your denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, any response shall be submitted under oath or affirmation.

If you choose to respond, your response will be made publicly available. Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be 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.

Dated this 17th day of October 2000