EA-01-271 - Decisive Testing, Inc.

February 27, 2002

EA-01-271

Mr. Michael R. May, President
Decisive Testing, Inc.
4735 Myrtle Avenue
San Diego, California 92105

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY –  $6,000 (NRC INSPECTION REPORT 150-00004/01-06 AND INVESTIGATION CASE NO. 4-2001-028)

Dear Mr. May:

This refers to the NRC's inspection and investigation of Decisive Testing, Inc. (DTI) regarding DTI's conduct of radiography in NRC jurisdiction. The NRC notified you on November 20, 2001, that we were considering escalated enforcement action for an apparent intentional violation of NRC requirements. The NRC issued an inspection report on December 19, 2001, describing this apparent violation, which involved a failure to notify NRC and pay reciprocity fees prior to conducting radiography on U.S. Naval vessels. On January 9, 2002, you met in San Diego, California with NRC representatives in a closed, predecisional enforcement conference to discuss the apparent violation, its significance, its cause, and your corrective actions.

During the conference, you admitted the violation and stated that it occurred because your assistant radiation safety officer mistakenly believed that payment of the reciprocity fee could be delayed, and did not understand the need for strict compliance with reciprocity fee requirements. You also submitted a statement from your assistant radiation safety officer in which he indicated that his mistake was to assume that a late filing would be a minor occurrence since the fee was the same regardless of when it was paid. You stated during the conference that your assistant radiation safety officer had admitted to you that he intended to defer payment of fees. We reiterated that 10 CFR 150.20 is clear in requiring that an NRC Form 241 be filed prior to the activity occurring.

In describing your corrective actions, you stated that DTI came into compliance in June 2001, that disciplinary action was taken against your assistant radiation safety officer, that all jobs requiring NRC reciprocity would be scheduled and directly supervised by you, and that you had assumed the responsibility for all written and verbal communications with the NRC. You also stated that DTI had developed new procedures to assure that you file for reciprocity when required and that you will perform an annual audit each December to verify that all operations requiring reciprocity have been authorized by the NRC, and to verify that DTI has filed for reciprocity for the upcoming year.

After considering the information developed during our inspection and investigation and the information that you provided during the conference, the NRC has determined that a violation of NRC requirements in 10 CFR 150.20 occurred. This violation is based on DTI's failure to file NRC Form 241 prior to performing work in January, February, and March of 2001 and is cited in the enclosed Notice of Violation (Notice) and Proposed Imposition of Civil Penalty. This violation is significant in two respects. First, your failure to file for reciprocity interfered with the NRC's ability to inspect your radiography operations to assure that all activities were being carried out safely. Second, the violation involved a conscious decision on the part of your assistant radiation safety officer to delay filing despite his knowledge that reciprocity must be filed prior to work being conducted. No effort was made to contact the NRC to arrange paying the fee later and there were conflicts in your assistant radiation safety officer's statements to the NRC during the investigation. Because the NRC cannot always be present when radiography work is being conducted, we must be able to rely on licensees and their employees to comply with all NRC requirements, and the actions of your assistant radiation safety officer demonstrate a lack of regard for strict compliance with these requirements.

Therefore, this violation has been 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 $6,000 is considered for a Severity Level III violation. Because this violation was committed willfully, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. With regard to identification, the fact that DTI had failed to file for reciprocity for jobs conducted in early 2001 was identified only as the result of the NRC's investigation into this issue. Therefore, DTI is not deserving of identification credit. With regard to corrective actions, we find DTI's actions to restore compliance and prevent further violations deserving of credit. This results in the assessment of a civil penalty at the base value.

Therefore, to emphasize the importance of strict compliance with NRC requirements and the significance of willful violations, 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 $6,000 for the Severity Level III violation described above. In addition, issuance of this Notice 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 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 enclosure, 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,
		/Thomas P. Gwynn Acting for/
		Ellis W. Merschoff Regional Administrator

Docket No. 150-00004
License No. 10 CFR 150.20

Enclosure:  Notice of Violation and Proposed Imposition of Civil Penalty

cc w/Enclosure:  California Radiation Control Program Director

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Decisive Testing, Inc. San Diego, California

Docket No. 150-00004 License No. 10 CFR 150.20 EA-01-271

During an NRC inspection and investigation completed September 19, 2001, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, 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 violation and associated civil penalty are set forth below:

10 CFR 150.20(a) provides in part that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in areas of exclusive Federal jurisdiction within Agreement States, provided that the provisions of 10 CFR 150.20(b) have been met.

10 CFR 150.20(b)(1) requires, in part, that any person engaging in activities in areas of exclusive Federal jurisdiction within Agreement States, shall, at least 3 days before engaging in each such activity, file an NRC Form 241, "Report of Proposed Activities in Non-Agreement States," with the Regional Administrator of the appropriate NRC regional office.

Contrary to the above, on at least six occasions from January 1 to March 31, 2001, including January 2, January 3, January 8, January 12, February 22 and March 5, Decisive Testing, Inc., a holder of an Agreement State license issued by the state of California, conducted radiography activities in an area of exclusive federal jurisdiction (i.e., U.S. Naval vessels), without filing Form 241 with the NRC.

This is a Severity Level III violation (Supplement VI).
Civil Penalty – $6,000

Pursuant to the provisions of 10 CFR 2.201, Decisive Testing, Inc., (Licensee) is hereby 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 the time specified, 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 violation 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 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 76011.

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, proprietary, or safeguards 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). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated this 27th day of February 2002