EA-03-100 - Mid American Inspection Services, Inc.
August 12, 2003
Mr. Terry L. Wilkins, President
Mid American Inspection Services, Inc.
1206 Effie Road
Gaylord, MI 49734
|SUBJECT:||NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$6000 (NRC Inspection Report No. 03031160/2003-001(DNMS))|
Dear Mr. Wilkins:
This refers to the inspection conducted on April 10, 2003, at your Gaylord, Michigan, facility, with continuing in-office review through May 8, 2003. The purpose of the inspection was to determine whether activities authorized by the license were conducted safely and in compliance with NRC requirements. The inspection report was sent to you on May 15, 2003, and identified two apparent violations of NRC requirements involving the failure to secure licensed material and the failure to have shipping papers in a vehicle transporting licensed material.
In the letter transmitting the inspection report, we provided you the opportunity to address the apparent violations identified in the report by either attending a predecisional enforcement conference or by providing a written response before we made our final enforcement decision. In letters, dated May 28 and June 9, 2003, you provided written responses to the apparent violations.
Based on the information developed during the inspection and the information that you provided in your May 28 and June 9, 2003, letters, the NRC has determined that two violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report. The violations involve the failure to secure from unauthorized access or maintain constant surveillance of licensed material and the failure to ensure that shipping papers were in a vehicle while transporting radioactive material. During the April 10, 2003, inspection, the NRC identified that a radiography camera was stored in the darkroom of a vehicle being repaired at an automobile dealership and that the key to the darkroom was on the key ring with the ignition keys. In addition, the radiographer removed the shipping papers from the vehicle when it was left for repairs and dealership personnel test drove the vehicle on public roads.
Although there were no actual consequences, the failure to adequately secure and limit access to licensed materials is a significant safety issue. Implementation of adequate security measures is intended to prevent the loss or theft of licensed materials and to prevent members of the public from being unknowingly and unnecessarily exposed to radiation. The failure to have shipping papers in the vehicle is also a significant safety concern since shipping papers are important in the event of an accident or other incident in order for emergency responders to determine the hazards present and to respond appropriately. Therefore, these violations are categorized collectively in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as a Severity Level III problem.
In accordance with the Enforcement Policy, a base civil penalty in the amount of $6000 is considered for a Severity Level III problem. Because your facility has not been the subject of escalated enforcement actions within the last two inspections, 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. Credit is warranted for corrective action which included issuing a letter to all radiography staff informing them that: (1) a material transportation form (shipping papers) must be present anytime vehicles are driven containing radioactive materials; (2) no truck may be used for personal use if radioactive materials are present; (3) any trucks to be serviced in Gaylord, Michigan, will have the radioactive materials removed and placed in the storage vault; and (4) at temporary job sites, service personnel will be notified of the presence of radioactive materials and that the truck may not be driven unless qualified Mid American Inspection Services, Inc., personnel are present in the vehicle. In addition, each employee signed a statement acknowledging that they had read the letter and would follow the procedures.
Although the NRC recognizes that application of the civil penalty assessment process described in Section VI.C.2 of the Enforcement Policy would fully mitigate the civil penalty in this case, the NRC is exercising discretion in accordance with Section VII.A.1.(c) of the Enforcement Policy and is proposing a civil penalty for your particularly poor performance surrounding the violations. This poor performance involves the loss of control over a significant quantity of licensed material (nominally 35 curies of iridium-192) for seven days while the vehicle was at an automobile dealership for service and the failure to maintain shipping papers in the vehicle while hazardous material was present. Specifically, when leaving the vehicle at the automobile dealership for repairs, your staff: (1) left the radiographic camera in the vehicle's darkroom; (2) left the vehicle's darkroom key on the key ring containing the ignition key and provided the keys to dealership personnel; and (3) removed the shipping papers from the vehicle. The darkroom door was the only means to prevent unauthorized access to the licensed material. You or your staff had several opportunities during discussions with automobile dealership representatives over several days to identify that the radiography camera was stored in the vehicle and to remove the camera. However, the failure to control licensed material and to have shipping papers in the vehicle continued until identified by the NRC on April 10, 2003.
The failure to maintain control over the radiography camera and the failure to leave the shipping papers with the vehicle resulted in dealership personnel unknowingly transporting the material in non-compliance with NRC and U. S. Department of Transportation (DOT) requirements. The dealership employees were not trained in your procedures to respond to an emergency involving the licensed material and the shipping papers were not readily available to authorities and emergency response personnel in the event of an accident or inspection.
Therefore, to emphasize the importance of attention to detail, control of licensed material, and prompt 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 (Notice) in the base amount of $6000 for the Severity Level III problem. 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 violations, the corrective actions taken and planned to correct the violations 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 must 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 enclosures, and your response, if any, 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. The NRC also includes Issued Significant Enforcement Actions on its Web site.
|/RA/ James L. Caldwell for|
|J. E. Dyer
Docket No. 030-31160
License No. 21-26060-01
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. NUREG/BR-0254 Payment Methods (Licensee only)
cc.: State of Michigan
NOTICE OF VIOLATION
PROPOSED IMPOSITION OF CIVIL PENALTY
|Mid American Inspection Services, Inc. Gaylord, Michigan||Docket No. 030-31160
License No. 21-26060-01
During an NRC inspection conducted on April 10, 2003, with continuing in-office review through May 8, 2003, two 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:
10 CFR 20.1801 requires that the licensee secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, controlled area means an area, outside of a restricted area but inside the site boundary, access to which can be limited by the licensee for any reason; and unrestricted area means an area, access to which is neither limited nor controlled by the licensee.
10 CFR 34.35(c) requires, in part, that locked radiographic exposure devices and storage containers must be physically secured to prevent tampering or removal by unauthorized personnel.
Contrary to the above, between April 3 and 10, 2003, the licensee did not secure from unauthorized removal or limit access to a nominal 35 curies of iridium-192 contained in a radiographic exposure device located in a vehicle, which was in an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. Specifically, the licensee delivered a vehicle containing a radiographic exposure device to a local dealership for repairs and provided the dealership with the keys needed to access the licensed material.
10 CFR 30.34(c) requires, in part, that licensees transport byproduct material in accordance with the provisions of 10 CFR Part 71.
10 CFR 71.5(a) requires that a licensee who transports licensed material outside of the site of usage, as specified in the NRC license, or where transport is on public highways, or who delivers licensed material to a carrier for transport, comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation (DOT) in 49 CFR Parts 170 through 189.
49 CFR 177.817(e)(2) requires, in part, that the driver of a motor vehicle containing hazardous material ensure that the shipping paper is readily available to, and recognizable by, authorities in the event of accident or inspection. Specifically, when the driver is not at the vehicle's controls, the shipping paper must be: (a) in a holder which is mounted to the inside of the door on the driver's side of the vehicle; or (b) on the driver's seat in the vehicle.
Pursuant to 49 CFR 172.101, radioactive material is classified as a hazardous material.
Contrary to the above, on April 3, 2003, the licensee transported a package containing licensed material outside of the site of usage and on public highways, and the package was not accompanied with the appropriate shipping papers either mounted on the inside of the door on the driver's side of the vehicle or on the driver's seat when the driver was not at the vehicle's controls. Specifically, the licensee left a vehicle, in which a radiographic exposure device (containing a nominal 35 curies of iridium-192) was being transported, at a local dealership for repairs, and the driver removed the shipping papers from the vehicle when he left the dealership. The shipping papers were not returned to the vehicle until the licensee retrieved the vehicle from the dealership on April 10, 2003.
This is a Severity Level III problem (Supplements IV, V and VI).
Civil Penalty - $6000.
The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in letters from the licensee, dated May 28 and June 9, 2003. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description in the letters 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-03-100" and send it to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, 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 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 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-03-100" and may: (1) deny the violations 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.
If you choose to respond, 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. Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.
In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.
Dated this 12th day of August 2003.