EA-03-081 - Testmaster Inspection Company, Inc.

July 2, 2003

EA-03-081

Wendell B. Carr, President
Testmaster Inspection Company, Inc.
P.O. Box 31
Perrysburg, OH 43552

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $5,500 [NRC OFFICE OF INVESTIGATIONS REPORT 3-2002-015]

Dear Mr. Carr:

This refers to an investigation by the U.S. Nuclear Regulatory Commission (NRC) Office of Investigations (OI) that was initiated in June 2002, to review an alleged violation of the NRC regulation prohibiting employment discrimination, 10 CFR 30.7. Information developed during the OI investigation indicated that the radiographer's employment was terminated for reasons not related to NRC-licensed activities. Therefore, no enforcement action is proposed for that alleged violation. However, information was also developed during the investigation indicating that the required surveys of the radiographic exposure device were not conducted following each exposure, an apparent violation of 10 CFR 34.49. A summary of the OI report was provided to you on May 22, 2003.

In the letter transmitting the summary of the OI report, we provided you the opportunity to address the apparent violation described in that letter by either attending a predecisional enforcement conference or providing a written response before we made our final enforcement decision. By letters dated May 30 and June 9, 2003, you provided responses to the apparent violation.

Based on the information developed during 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 were described in the summary of the OI report that we previously provided to you. In summary, on October 24-25, 2000, the radiographer and radiographer's assistant knew the survey meter "battery check function" operated intermittently while working at a field location in Huntington, Indiana. The radiographer decided to continue with radiographic operations without an operable survey instrument and on nine occasions deliberately failed to survey the exposure device and the guide tube upon completion of the exposure. The radiographer knew that he was required to survey the radiographic exposure device and the guide tube following each exposure to assure that the sealed source was returned to its shielded position. By deliberately failing to perform the required surveys, the radiographer could not provide reasonable assurance that the radiographic source was returned to its safe shielded position and increased the potential for unnecessary exposure to radiation to himself and his coworker. Therefore, this deliberate failure to use a radiation survey instrument during radiographic operations, as required by 10 CFR Part 34, has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III violation.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $5,500 (the base civil penalty at the time the violation occurred) is considered for a Severity Level III violation. Because this was a deliberate violation, 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. Credit for the Identification factor was not warranted because the violation was identified by the NRC. Credit for Corrective Action was warranted because you retrained your employees on their responsibilities under your "Operating and Emergency Procedures Manual."

Therefore, to emphasize the importance of the required radiation surveys and identification of 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 in the base amount of $5,500 for the Severity Level III violation. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in your May 28 and June 9, 2003, letters. Therefore, you are not required to respond to the provisions of 10 CFR 2.201 unless the description in your letters does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice. However, you are required to either pay the proposed civil penalty or respond in accordance with the instructions in the Notice.

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 NRC's document system (ADAMS), which is accessible from the NRC Web site at the Public NRC Library.To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		J. E. Dyer Regional Administrator

Docket No. 030-35090
License No. 34-24872-02

Enclosures:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. NUREG/BR-0254 Payment Methods

cc w/encl 1: R. Suppes, Ohio Dept. of Health

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Testmaster Inspection Company, Inc. P.O. Box 31 Perrysburg, OH 43552

Docket No. 030-35090 License No. 34-24872-02 EA-03-081

During an NRC investigation completed on March 24, 2003, 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 34.49 requires, in part, that the licensee, using an operable radiation survey instrument that meets the requirements of 10 CFR 34.25, conduct a survey of the radiographic exposure device and the guide tube after each exposure when approaching the device or the guide tube. The survey must determine that the sealed source has returned to the shielded position before exchanging films, repositioning the exposure head, or dismantling the equipment.

Contrary to the above, on October 24-25, 2000, at a field location in Huntington, Indiana, a radiographer failed to conduct a survey of the radiographic exposure device and the guide tube when approaching the device or the guide tube to determine that the sealed source had returned to the shielded position at the completion of nine exposures.

This is a Severity Level III violation (Supplement VI), Civil Penalty $5,500.

The NRC has concluded that information regarding the reason for the violation and the corrective actions taken and planned to correct the violation and prevent recurrence, was adequately addressed in the letter transmitting this Notice and your letters on May 30 and June 9, 2003. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to a Notice of Violation, EA-03-081," and send it to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, NRC Region III, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

The Licensee may pay the civil penalty proposed above, in accordance with NUREG/BR-0254, by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 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, EA-03-081" 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 234(c) of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, EA-03-081, statement as to payment of civil penalty, and Answer to a Notice of Violation, EA-03-081) should be addressed to: Frank J. 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 and the Enforcement Officer, U.S. Nuclear Regulatory Commission, Region III.

If you choose to respond, your response will be made electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS),which is accessible from the NRC Web site at the Public NRC Library.Therefore, to the extent possible the response should not include an personal privacy or proprietary 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).

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

Dated this 2^nd day of July 2003.