United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-02-103 - United Evaluation Services

May 14, 2002

EA-02-103

United Evaluation Services, Inc.
ATTN: Joseph J. Ferenc
             President, Radiation Safety Officer
1117 Beach Avenue
Beachwood, New Jersey 08722

SUBJECT:   ORDER SUSPENDING LICENSE (EFFECTIVE IMMEDIATELY) AND DEMAND FOR INFORMATION (Docket No. 030-35870)

Dear Mr. Ferenc:

The NRC is issuing the enclosed Order Suspending License (Effective Immediately) and Demand for Information (DFI) to United Evaluations Services, Inc. (formerly Accurate Technologies Incorporated), because of deliberate violations of NRC safety requirements, as well as the deliberate provision of inaccurate information to the NRC. The details are provided herein, and in the enclosed Order and DFI. The findings were identified by the NRC during an inspection initiated on October 10, 2001, and a subsequent investigation by the NRC Office of Investigations. Both the inspection and investigation are ongoing.

The NRC inspection and investigation were initiated after a radiation event occurred on September 25, 2001, at the McShane facility in Baltimore, Maryland, involving a radiation injury to one of your radiographers. This event was discussed with you on October 4, 2001. During the discussions, the NRC learned that the radiographer received a very significant radiation exposure to his hands in excess of regulatory limits (at a minimum, 250-300 rem) while performing radiography at that facility. In your report, you indicated that the injury occurred because the radiographer handled the device's guide tube while the radioactive source was still located therein. Apparently, the source failed to fully retract to the shielded position following a previous radiographic exposure. The exposure to the individual occurred because the radiographer approached the device without a survey meter to evaluate the radiological conditions, and without wearing an alarming ratemeter. Either one of those precautions would have alerted the radiographer that the source was not in a shielded position. Although this event occurred while the radiographer was performing activities in Baltimore, Maryland, under a license issued to you by the State of Maryland (an NRC Agreement State), you also possess an NRC license authorizing similar activities within states subject to NRC jurisdiction. As a result, the subsequent NRC inspection and investigation were initiated.

Based on the ongoing NRC investigation and inspection, the NRC has determined that the radiographer, who was exposed in Maryland, had not received the annual refresher training as required by 10 CFR 34.43(d), and had not taken an annual refresher training exam. Instead, an assistant radiographer completed the annual refresher exam for that radiographer. In addition, you as the President/Radiation Safety Officer, certified the training record even though it was inaccurate, in violation of 10 CFR 34.79(b) and 10 CFR 30.9, and also provided the inaccurate record to the NRC, in violation of 10 CFR 30.9. The date listed on the certified record was approximately three weeks before the exposure in Maryland. These violations are particularly egregious and may provide, in part, a causal link to the individual's exposure in Maryland on September 25, 2001.

There are additional findings which also cause the NRC to lack the requisite confidence that licensed activities can be performed safely. Specifically, the investigation also found that the former Operations Manager knowingly transported and used a radiography device in New Jersey without the required safety equipment (end cap) which ensures proper shielding of the source, in violation of 10 CFR 34.31. Also, you as the President/Radiation Safety Officer, in a written response to an October 4, 2001, NRC Confirmatory Action Letter (CAL), and during the inspection, deliberately provided inaccurate information to the NRC, regarding the status and use of equipment at the facility, in violation of 10 CFR 30.9. Further, with the acquiescence of Licensee management, an assistant radiographer performed the duties of a radiographer knowing that he was not certified to do so, in violation of 10 CFR 34.43(a)(1).

The enclosed Order requires that (1) all NRC-licensed material in your possession be placed in secure storage; (2) all use of licensed material be suspended; (3) no material authorized by your license be ordered, purchased, received, or transferred by you while this Order is in effect; and (4) all records related to licensed material and activities be maintained in their original form. The NRC is considering whether further action to modify or revoke your license is appropriate. Therefore, the NRC is issuing a DFI together with the enclosed Order to provide you with the opportunity to describe why your license should not be modified or revoked.

Pursuant to Section 223 of the Atomic Energy Act of 1954, as amended, any person who willfully violates, attempts to violate, or conspires to violate, any provision of this Order shall be subject to criminal prosecution as set forth in that section. Violation of this Order may also subject the person to civil monetary penalty. Questions concerning the Order and DFI should be addressed to Dr. Frank Congel, Director, Office of Enforcement, who may be reached at 301-415-2741.

You are required to respond to this Order and DFI and you should follow the instructions specified in the Order and DFI when preparing your response. Failure to respond will result in an Order revoking your license.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and its enclosures 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 http://www.nrc.gov/reading-rm/adams.html (the Public NRC Library). To the extent possible, your response should not include any personal, privacy, or proprietary safeguards information so that it can be placed in the PDR 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.)

Sincerely,

/RA/

Martin Virgilio,
Acting Deputy Executive Director for
Materials, Research and State Programs

Docket No. 030-35870
License No. 29-28358-02

Enclosure: Order Suspending License (Effective Immediately) and Demand For Information

cc w/encl:
State of New Jersey
State of Maryland
State of New York


UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION

In the Matter of

United Evaluations Services, Inc.
(Formerly Accurate Technologies, Inc.
Beachwood, New Jersey 08722

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Docket No. 030-35870
License No. 29-28358-02
EA-02-103

ORDER SUSPENDING LICENSE
(EFFECTIVE IMMEDIATELY)
AND DEMAND FOR INFORMATION


I

United Evaluations Services, Inc., formerly Accurate Technologies Incorporated (Licensee) is the holder of byproduct nuclear material license No. 29-28358-02, issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Parts 30 and 34. Accurate Technologies Incorporated was the holder of Byproduct Nuclear Material License No. 29-28358-01, also issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Parts 30 and 34.

License No. 29-28358-01 was originally issued by the NRC on June 16, 1989, and authorized possession and use of certain byproduct material for industrial radiography at temporary job sites of the Licensee anywhere in the United States where the NRC maintains jurisdiction for regulating the use of licensed material. The license was revoked by the NRC on December 12, 2000, for nonpayment of fees, although the Licensee has represented that it never received the Order revoking the license. The Licensee subsequently paid the required fees from the previous year over the period April-August 2001.

The Licensee submitted a new application, with required fees, on November 6, 2001. The new license (No. 29-28358-02) was subsequently issued on November 16, 2001, and is due to expire on November 30, 2011. License No. 29-28358-02 initially authorized possession and use of certain byproduct material for industrial radiography at temporary job sites. Amendment No. 1 to License No. 29-28358-02, issued on December 20, 2001, changed the name of the Licensee from Accurate Technologies Incorporated to United Evaluations Services Inc.

II

On September 25, 2001, an event occurred at the McShane facility in Baltimore, Maryland, involving a radiation injury to one of the Licensee's radiographers. This event was discussed with the Licensee on October 4, 2001. During the discussions, the NRC learned that the radiographer received a very significant radiation exposure to his hands in excess of regulatory limits (at a minimum, approximately 250-300 rem) while performing radiography at that facility. Since the facility was located in Maryland, an NRC Agreement State, the activities related to that exposure were within the jurisdiction of the State of Maryland.

In its discussions with the NRC, the Licensee indicated that the injury occurred when the radiographer, who completed one radiographic exposure of equipment at the facility and was in the process of preparing for another exposure, handled the device's guide tube with the radioactive source located therein. The source remained in the guide tube after failing to fully retract to the shielded position following the first radiographic exposure. The exposure occurred because the radiographer approached the device without a survey meter and without wearing an alarming ratemeter, either of which would have alerted him that the source was not in a shielded position. Although this event occurred while the radio grapher was performing activities in an NRC Agreement State, the same equipment is possessed and used pursuant to an NRC license. As a result, the NRC initiated an investigation and inspection into this matter.

Based on the NRC investigation and inspection, which are still ongoing, the NRC has determined that:

  1. The radiographer who was exposed in Maryland had not received the annual refresher training as required by 10 CFR 34.43(d), and had not taken an annual refresher training exam. Instead, an assistant radiographer completed the annual refresher exam for that radiographer. In addition, the President/Radiation Safety Officer certified the training record, which was inaccurate, and provided the certified record to the NRC, in violation of 10 CFR 34.79(b) and 30.9. The date listed on the certified record was approximately three weeks before the occurrence of the significant hand exposure that occurred in Maryland. These violations are particularly egregious and may provide, in part, a causal link to the significant exposure that occurred in Maryland on September 25, 2001;

  2. The former Operations Manager knowingly transported and used a radiographic device in New Jersey without the required end cap (which ensures proper positioning and shielding of the source in the camera), in violation of 10 CFR 34.31. Records indicate that this occurred in September 2001.

  3. The President/Radiation Safety Officer, in a written response to an NRC October 4, 2001 Confirmatory Action Letter (CAL), and during the inspection, deliberately provided inaccurate information to the NRC, regarding the status and use of equipment at the facility, in violation of 10 CFR 30.9. Specifically, Item 3 of the CAL documented the Licensee's commitment to inspect all radiographic exposure devices and associated equipment to verify they were in good working order. In an October 9, 2001 supplemental response to the CAL, sent to the NRC by facsimile, the Licensee included a document signed by the President/RSO which stated that the locking mechanisms were checked for proper operation and all locks were in proper working condition, and all end caps were checked and cleaned. This statement was deliberately inaccurate in that on October 10, 2001, during an NRC inspection, as well as during the subsequent investigation, the NRC learned that one of the radiographic devices did not have the end cap in place, and it had not been in place since at least September 25, 2001, and consequently the locking mechanism was inoperable. The Licensee was aware that the device did not have the end cap in place prior to its October 9, 2001 supplemental response.

    During the October 10, 2001 inspection, the inspector was informed by the President/Radiation Safety Officer, that an end cap for one of the radiographic devices had been missing for three weeks, but that the device had not been used during that time. This statement was also deliberately inaccurate in that radiation reports and testimony show that the device with the missing end cap had been used on more than one occasion during that three week period, including use by the President/Radiation Safety Officer on October 2, 2001.

  4. With the acquiescence of Licensee management, an assistant radiographer performed the duties of a radiographer, knowing that he was not certified to do so, as required by 10 CFR 34.43(a)(1).

III

The NRC must be able to rely on the Licensee and its employees to comply with NRC requirements and to ensure that radiographers do not perform licensed activities unless they have completed all required training and that radiographic equipment not be used if it is found to be defective. The NRC must also be able to rely upon information provided by the Licensee to be complete and accurate in all material respects. In this regard, it appears that the Licensee has deliberately failed to comply with NRC requirements, as indicated herein, and has deliberately provided inaccurate information to the NRC. These actions by the Licensee have raised serious doubt as to whether the Licensee can be relied upon in the future to comply with NRC requirements.

Consequently, given these findings, and the significant impacts that can result from violations of radiography requirements, as evidence by the significant exposure that occurred in Maryland on September 25, 2001, I lack the requisite reasonable assurance that the Licensee's current operations can be conducted under License No. 29-28358-02 in compliance with the Commission's requirements, and that the health and safety of the public, including the Licensee's employees, will be protected. Therefore, the health, safety and interest of the public require that License No. 29-28358-02 be suspended. Furthermore, pursuant to 10 CFR 2.202, I find that, given the safety significance of conducting radiography by personnel who have not completed all required training and certification, the public health, safety, and interest require that this Order be immediately effective.

IV

Accordingly, pursuant to sections 81, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Parts 30 and 34, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT LICENSE No. 29-28358-02 IS SUSPENDED AS FOLLOWS, pending further Order.

A.   All NRC-licensed material in the Licensee's possession shall be placed in secured storage.

B.   All activities under License No. 29-28358-02 to use licensed material shall be suspended. All other requirements of the license remain in effect.

C.    No material authorized by the license shall be ordered, purchased, received, or transferred by the Licensee while this Order is in effect.

D.    All records related to licensed activities and materials shall be maintained in their original form and must not be removed or altered in any way.

The Director of the Office of Enforcement, the Director of the Office of Nuclear Materials Safety and Safeguards, or the Regional Administrator, Region I, may, in writing, relax or rescind this order upon demonstration by the Licensee of good cause.

V

In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Order, within 20 days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for an extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C., 20555, and include a statement of good cause for the extension. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically admit or deny each allegation or charge made in this order and set forth the matters of fact and law on which the Licensee or other person adversely affected relies and the reasons as to why the Order should not have been issued.

Any answer or request for a hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Chief, Docketing and Services Section, Washington, D.C. 20555. Copies of the hearing request also should be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, to the Regional Administrator, NRC Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406, and to the Licensee if the hearing request is by a person other than the Licensee. If a person other than the Licensee requests a hearing, that person shall set forth with particularity the manner in which the individual's interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.714(d).

If a hearing is requested by the Licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.

Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.

In the absence of any request for hearing, or a written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.

VI

In addition to issuance of this Order suspending License No. 29-28358-02, the Commission requires further information from the Licensee in order to determine whether the Commission can have reasonable assurance that in the future the Licensee will conduct its activities in accordance with the Commission's requirements.

Accordingly, pursuant to sections 161c, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204 and 10 CFR Parts 30 and 34, in order for the Commission to determine whether your license should be further modified or revoked, or other enforcement action taken, the Licensee is required to submit to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, within 20 days of the date of this Order and Demand for Information, in writing and under oath or affirmation:

  1. An explanation as to why, in light of the findings set forth in Section II of this Order and Demand for Information, that License No. 29-28358-02 should not be revoked.

  2. If the Licensee believes that the license should not be revoked, the Licensee, in its response, should address at a minimum, why the NRC should have reasonable assurance that the Licensee, in the future, will ensure appropriate management and oversight of licensed activities (this shall include a description of who will be responsible for assuring such activities are conducted in accordance with 10 CFR Parts 30 and 34 requirements).

Copies also shall be sent to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406.

After reviewing your response, the NRC will determine whether further action is necessary to ensure compliance with regulatory requirements.

FOR THE NUCLEAR REGULATORY COMMISSION

/RA/

Martin Virgilio,
Acting Deputy Executive Director for
Materials, Research and State Programs

Dated this 14th day of May 2002

Page Last Reviewed/Updated Thursday, March 29, 2012