EA-02-166 - Testing Technologies, Inc.

January 22, 2003

EA-02-166

Testing Technologies, Inc.
ATTN: Gary Kolbenstetter
Radiation Safety Officer
1241 Featherstone Road
Woodbridge, VA 22191

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$9,600 (NRC INSPECTION REPORT NO. 45-25007-01/2002-001 AND OFFICE OF INVESTIGATIONS REPORT 4-2002-022)

Dear Mr. Kolbenstetter:

This refers to the inspection conducted on April 22, 2002, at a temporary job site at the Tesoro Refinery, in Kapolei, Hawaii, on April 24-25, 2002, at a field office, also in Kapolei, Hawaii, on September 11, 2002, at Testing Technology Inc's (TTI's) temporary job site in Greenbelt, Maryland, and on September 17, 2002, at TTI's home office in Woodbridge, Virginia. The subject inspections also involved the activities of Engineering and Inspections, Unlimited, Inc. (E&I), who was authorized to conduct radiographic activities under the TTI materials license. This letter is also in reference to an investigation completed by the NRC's Office of Investigations (OI) on August 19, 2002.

The preliminary findings from the inspection and investigation were forwarded to you by letter dated October 18, 2002. At the NRC's request, a closed and transcribed predecisional enforcement conference was conducted with you and members of your staff on November 20, 2002, in the Region II office. The enclosures to this letter include the list of conference attendees and copies of the material presented by the NRC at the conference.

Based on the information developed during the inspection and investigation, and the information you provided during the conference, the NRC has determined that multiple violations of regulatory requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. The violations cited in Part I of the Notice involved: (A) the performance of radiographic operations at temporary job sites by radiographer's assistants and helpers who were not accompanied by at least one qualified radiographer; (B) the performance of radiographic operations by individuals who had not met training requirements; (C) failure to wear a combination of a direct reading pocket dosimeter, an alarming ratemeter, and either a film badge or TLD; and (D) failure of the corporate and site Radiation Safety Officer to oversee the radiation safety program. The NRC concluded that violations A, B, and C above were deliberate, as discussed below.

At the conference, you indicated that individuals who performed and scheduled others to perform radiographic operations during the period of interest (late 1998 through April 2002) were well qualified, with many years of field experience. As such, you contended that radiographic activities were performed safely. In addition, you disagreed with the NRC's contention that certain of the violations were deliberate, and instead offered the explanation that the individuals responsible for these actions did not intend to deliberately violate NRC requirements. In addition, you stated that you and representatives of TTI would not deliberately violate NRC requirements.

Based on the evidence from the OI report and information provided by TTI at the conference, we have concluded that violations I.A, I.B, and I.C above were deliberate. The basis for this determination stems from the fact that TTI representatives, at the time that these radiographic activities were conducted, were aware that the actions did not conform to regulatory requirements. In this case, the evidence indicated that certain individuals responsible for scheduling and conducting radiographic operations were clearly aware of the regulatory requirements, were aware that the continuation of radiographic operations would place TTI in non-compliance with these requirements, and chose to proceed with radiographic operations.

In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions", NUREG-1600 (Enforcement Policy), the violations referenced above would normally be categorized at Severity Level III because the NRC places substantial importance in the conduct of radiographic operations by certified individuals (violations I.A and B), and because of one instance where proper dosimetry was not worn during these activities (violation I.C). These regulatory barriers (i.e., requirements for certification and personnel monitoring) are important because, when combined with other regulatory requirements, they provide protection to members of the public and radiography workers from the radiological hazards associated with radiographic operations. In addition, the oversight function of the Radiation Safety Officer (violation I.D) is vital to public health and safety. Independent of the technical significance of the above violations, the NRC considers deliberate violations to be of particular concern because our regulatory programs are based on licensees' and their employees' conformance to regulatory requirements. Therefore, in accordance with the Enforcement Policy, the violations cited in Part I of the Notice have been collectively categorizedas a Severity Level II problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $9,600 is considered for a Severity Level II violation or problem. Because the violations were willful, the NRC considered whether credit was warranted for the factors of Identification and Corrective Action in accordance with the civil penalty assessment process described in Section VI.C.2 of the Enforcement Policy. The violations were identified as a result of an NRC inspection and investigation, and as such, credit was not warranted for the factor of Identification. Your immediate and long-term corrective actions included review of the training and certification of certain TTI staff to ensure that all individuals who performed radiographic activities satisfied regulatory requirements, assurance that uncertified individuals would not be dispatched to perform or assist in radiographic operations in the future, and coordination between TTI and Engineering and Inspections, Unlimited, Inc. (E&I) management to ensure the proper conduct of RSO activities. Based on this, the NRC concluded that credit was warranted for the factor of Corrective Action.

Therefore, to emphasize the importance of proper oversight of licensed activities and the need to ensure that radiographic operations are conducted by certified individuals, I have been authorized, after consultation with the Director, Office of Enforcement and the Deputy Executive Director of Materials, Research, and State Programs, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the base amount of $9,600 for the Severity Level II problem. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Five additional violations (Violations II.A-E) were identified and are cited in the enclosed Notice. These violations include, (A) failure to comply with the terms and conditions of the license by failing to notify the NRC of a change in storage locations; (B) failure to maintain copies of required documents at each temporary jobsite; (C) failure to provide training to Hazmat employees as required by Subpart H to 49 CFR Part 172; (D) failure to provide a written report within 30 days of the occurrence of an incident involving the inability to retract the source assembly to its fully shielded position and secure it in that position; and (E) failure to make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels. Based on the low safety significance, these violations have been characterized separately at Severity Level IV in accordance with the Enforcement Policy.

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 enclosures, 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.

If you have any questions regarding this matter, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety, at 404-562-4700.

		Sincerely,
		/RA/
		Luis A. Reyes Regional Administrator

Docket No. 030-30657
License No. 45-24007-01

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encls:
Commonwealth of Virginia
State of Florida
State of Hawaii
Engineering and Inspections, Unlimited, Inc.

Attn: Donna Frione President 5455 North Federal Highway Suite I Boca Raton, FL 33487

Engineering and Inspections, Unlimited, Inc.

Attn: Lynn D. Shephard Corporate Radiation Safety Officer 5455 North Federal Highway Suite I Boca Raton, FL 33487

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Testing Technologies, Inc. Woodbridge, Virginia

Docket No. 030-30657 License No. 45-24007-01 EA-02-166

During an NRC inspection conducted on April 22 and 24-25, 2002, in Kapolei, Hawaii, on September 11, 2002, in Greenbelt, Maryland, on September 17, 2002, in Woodbridge, Virginia, and an investigation completed by the NRC's Office of Investigations (OI) on August 19, 2002, violations of NRC requirements were 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 violations and associated civil penalty are set forth below:

1.	Violations Assessed a Civil Penalty
	A.	10 CFR 34.43(a) requires, in part, that the licensee not permit any individual to act as a radiographer until the individual is 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, between December 29, 2001, and January 27, 2002, the licensee deliberately permitted individuals to perform radiographic operations at multiple temporary job sites on the island of Oahu, Hawaii, who had not been certified through a radiographer certification program.
	B.	10 CFR 34.41(a) requires that whenever radiography is performed at a location other than a permanent radiographic installation, the radiographer must be accompanied by at least one other qualified radiographer or an individual who has, at a minimum, met the requirements of §34.43(c). The additional qualified individual shall observe the operations and be capable of providing immediate assistance to prevent unauthorized entry. Radiography may not be performed if only one qualified individual is present. Contrary to the above, between December 29, 2001, and January 27, 2002, the licensee deliberately conducted radiographic operations at multiple, temporary job sites on the island of Oahu, Hawaii, without the being accompanied by another radiographer or an individual who met the requirements of §34.43(c).
	C.	10 CFR 34.47(a) requires that a licensee not permit an individual to act as a radiographer or a radiographer's assistant unless, at all times during radiographic operations, the individual wears on the trunk of the body, a direct reading dosimeter, an operating alarm ratemeter, and a personnel dosimeter that is processed and evaluated by an accredited NVLAP processor. Contrary to the above, on April 22, 2002, a licensee radiographer's assistant deliberately failed to wear an alarming ratemeter, a direct reading dosimeter, and either a film badge or TLD while conducting radiographic operations at the Tesoro Refinery in Kapolei, Hawaii.
	D.	10 CFR 34.42 delineates the specific duties and responsibilities of a Radiation Safety Officer for industrial radiography, to include in part, overseeing the training program, ensuring that required radiation surveys are performed and documented, ensuring that personnel dosimetry is used properly, and ensuring that operations are conducted safely. Contrary to the above, from December 2001 until April 2002, the corporate and site Radiation Safety Officer failed to adequately perform their oversight duties as required in that unqualified and unauthorized individuals were performing radiographic operations at temporary job sites in Hawaii; a survey was not performed following the failure of a source to retract in December 2001; and an individual failed to wear his dosimetry during radiographic operations on April 22, 2002.
This is a Severity Level II problem (Supplement VI). Civil Penalty - $9,600
II.	Violations Not Assessed a Civil Penalty
	A.	License Condition 10 of TTI's NRC Materials License No. 45-25007-01 requires, in part, that licensed material be used (stored) at the licensee's facility at 91-252 Kuhela Street, Kapolei, Hawaii, and at temporary jobsites in NRC jurisdiction. Contrary to the above, as of February 28, 2002, the licensee failed to use (store) licensed material at the location authorized by the license. Specifically, during the month of February 2002, the licensee moved radiography exposure devices from the authorized use (storage) location to their present storage location at 91-110 Hanua Street, Suite 202, Kapolei, Hawaii.
This is a Severity Level IV violation (Supplement VI).
	B.	49 CFR 172.702 requires that each Hazmat employer shall ensure that each Hazmat employee is trained and tested, and that no Hazmat employee performs any function subject to the requirements of 49 CFR Parts 171-177 unless trained, in accordance with Subpart H of 49 CFR Part 172. The terms Hazmat Employer and Hazmat Employee are defined in 49 CFR 171.8. Contrary to the above, during the period between December 15, 1998, and April 25, 2002, the licensee (who meets the definition of Hazmat employer in 49 CFR 171.8) did not provide training to its Hazmat employees as required by Subpart H to 49 CFR Part 172, yet permitted these individuals to transport radioactive material over the roadway, a function subject to the requirements of 49 CFR Parts 171-177.
This is a Severity Level IV violation (Supplement VI).
	C.	10 CFR 34.101(a)(2) requires, in part, that the licensee shall provide a written report within 30 days of the occurrence of an incident involving the inability to retract the source assembly to its fully shielded position and secure it in that position. Contrary to the above, the licensee failed to provide a written report within 30 days of the occurrence of an incident involving the inability to retract the source assembly to its fully shielded position and secure it in that position. Specifically, in the month of December 2001, a radiographer's assistant and radiographer's helper conducted radiographic operations at a temporary jobsite in Kapolei, Hawaii. The helper and assistant were involved in an incident where they became unable to retract the source to its fully shielded position for a period of one hour and twenty minutes. Though the source was successfully retracted, the licensee failed to provide a written, 30 day report of the event to the NRC.
This is a Severity Level IV violation (Supplement VI).
	D.	10 CFR 20.1501 requires that each licensee make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation. Contrary to the above, as of April 25, 2002, the licensee did not make surveys to assure compliance with 10 CFR 20.1301, which limits radiation exposure to individual members of the general public to 0.1 rem (1 millisievert) in one year, or 0.002 rem (0.02 millisievert) in any one hour. Specifically, in the month of December 2001, during an incident where a radiographer's assistant and radiographer's helper were unable to retract the source for one hour and twenty minutes, the licensee failed to evaluate the radiation exposure to Tesoro refinery personnel frequenting the work area.
This is a Severity Level IV violation (Supplement VI).
	E.	10 CFR 34.89 requires, in part, that each licensee shall maintain copies of records sufficient to demonstrate compliance with the record keeping requirements of 10 CFR 34.89 at each temporary job site. Required records include, in part: a copy of 10 CFR parts 19, 20, and 34 of NRC regulations; records of equipment problems identified by daily checks; utilization records; records of direct reading dosimeters; and any camera surveys. Contrary to the above, the licensee failed to maintain copies of records sufficient to demonstrate compliance with the record keeping requirements of 10 CFR 34.89 at each temporary job site. Specifically, on April 22, 2002, the licensee failed to have a copy of 10 CFR parts 19, 20, and 34 of NRC regulations; records of equipment problems identified by equipment checks; utilization records; records of direct reading dosimeters; and any camera surveys.
This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Testing Technologies, 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 II, 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 previously 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.

Within 30 days of the date of this Notice, the Licensee may pay the civil penalty proposed above, 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 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty, 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 payment of civil penalty 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 II.

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.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 22^nd day of January 2003