United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-166 - Cooperheat-MQS Inspection, Inc.

September 18, 2001

EA-01-166

Peter Buchler, Executive Vice President
Cooperheat-MQS Inspection, Inc.
5858 Westheimer Road, Suite 625
Houston, TX 77057

SUBJECT:   NRC INSPECTION REPORT 030-35252/00-01 AND NOTICE OF VIOLATION (NRC INVESTIGATON REPORT 4-2000-036A)

Dear Mr. Buchler:

This refers to the inspection conducted on November 13-14, 2000, at your facility in Indianapolis, Indiana. The inspection was an examination of activities conducted under NRC Byproduct Materials License 42-32219-01 as they relate to radiation safety and to compliance with the Commission's rules and regulations and the conditions of the license. Subsequent to the inspection, an investigation was conducted by NRC's Office of Investigations (OI) to determine if there was a deliberate violation of NRC requirements. OI found no deliberateness. A final telephonic exit meeting was conducted with you and members of your staff on August 6, 2001.

During the telephonic exit briefing on August 6, 2001, Cooperheat-MQS Inspection, Inc. (MQS) was informed that the NRC was considering escalated enforcement action for an apparent violation involving a failure to use certified radiographers. Specifically, the inspection disclosed that on four occasions licensee employees performed radiographic operations and these individuals were not certified. Additionally, you were informed that NRC believed it had sufficient information regarding the apparent violation and your corrective actions to make an enforcement decision without the need for a predecisional enforcement conference or requesting additional information from you. You were also informed that a second violation was also identified but has been categorized as a Severity Level IV violation. You indicated that MQS did not believe that a predecisional enforcement conference was needed.

Therefore, based on the information developed during the inspection and investigation, the NRC has determined that violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice) and involved a failure to use certified radiographers while performing radiography operations and the failure to perform routine maintenance. Violation A is of particular concern because of the possible adverse health and safety consequences of non-certified radiographers performing industrial radiography. This violation has been categorized in accordance with the General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy), NUREG-1600, at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty with a base value of $5,500 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement action, 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. Based on MQS's prompt actions to address the violation, the NRC has determined that your corrective actions warrant credit. MQS's immediate corrective actions included removing the involved individuals from performing radiography, and emphasizing that radiography will not be performed with radiographers who are not properly certified.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized, after consultation with the Director, Office of Enforcement, not to propose a civil penalty in this case. However, you are on notice that significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action that may subject you to increased inspection effort.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. The NRC will use your response, in part, to determine whether further enforcement 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 and its enclosure and your response 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 http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library).

Should you have any questions concerning this inspection, please contact Robert A. Brown at (817) 860-8130 or Mark R. Shaffer at (817) 860-8287.

Sincerely,

/RA/

Ellis W. Merschoff
Regional Administrator

Docket No.: 030-35252
License No.: 42-32219-01

Enclosure: Notice of Violation

cc w/Enclosure
Texas Radiation Control Program Director
Indiana Radiation Control Program Director


ENCLOSURE 1

NOTICE OF VIOLATION

Cooperheat-MQS Inspection, Inc.
Houston, Texas
Docket No. 030-35252
License No. 42-32219-01
EA-01-166

During an NRC inspection conducted on November 13-14, 2000, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A.   10 CFR 34.43 (a)(1) requires, in part, that a licensee may not permit any individual to act as a radiographer until the individual has been certified through a radiographer certification program by a certifying entity in accordance with the criteria specified in Appendix A of 10 CFR Part 34.

Contrary to the above, on four separate occasions, between July 19 and August 13, 2000, individuals performed operations as radiographers, and these individuals were not certified through a radiographer certification program.

This is a Severity Level III violation (Supplement VI).

B.   10 CFR 34.31(b)(1) requires, in part, that the licensee shall have written procedures for inspection and routine maintenance of radiographic exposure devices and associated equipment at intervals not to exceed 3 months. The licensee's written Procedure 3.3.2 provides, in part, that quarterly inspection of exposure devices shall be conducted at the end of each calendar quarter.

Contrary to the above, five radiographic exposure devices had not been inspected or received maintenance between January and June 2000, a period in excess of 3 months.

This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Cooperheat-MQS Inspection, Inc., is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555, with a copy to the Regional Administrator, Region IV, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation or severity level, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) 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 to why the license should not be modified, suspended, or revoked, or why such other action as may be proper should not be taken. Where good cause is shown, consideration will be given to extending the response time.

If you contest 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.

Because your response will be made available to the Public, to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. 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). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated this 18th day of September 2001

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