EA-03-151 - Cooperheat-MQS, Inc.

December 30, 2003

EA-03-151

Mr. Joseph E. Milliron, President
and Chief Executive Officer
Cooperheat-MQS, Inc.
5858 Westheimer Road, Suite 625
Houston, Texas 77057

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $6,000 (NRC Inspection Report No. 030-35252/02-001 & Investigation Report No. 4-2003-009)

Dear Mr. Milliron:

This refers to the predecisional enforcement conference conducted on September 29, 2003, in the NRC's Region IV office in Arlington, Texas. The conference was conducted to discuss two apparent willful violations involving whether refresher training had been provided to radiography personnel in accordance with your license requirements, and whether information provided to an NRC inspector about the refresher training was complete and accurate. A conference attendance list is included as Enclosure 2. The apparent violations were communicated to you and your staff during a telephonic exit briefing conducted on September 5, 2003, and were documented in the subject NRC Inspection Report dated September 16, 2003.

At the predecisional enforcement conference, Cooperheat-MQS representatives did not dispute the apparent violations and discussed several corrective actions to address the violations. Your corrective actions included: 1) conducting a review of refresher training policies and procedures; 2) performing refresher training for radiography personnel in your Berlin, Connecticut office; 3) revising and improving training documentation; and 4) monitoring facility RSO work to assure that the RSOs have adequate time to perform their safety responsibilities, including training.

Based on the information developed during the inspection and investigation, and the information that you provided during the conference, the NRC has determined that two violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice). The circumstances surrounding them were described in detail in the inspection report. The violations involve: (1) the failure to conduct refresher training for radiographers in accordance with the requirements of your NRC license, and (2) the failure to provide an NRC inspector with complete and accurate information. Specifically, we conclude that your former Facility Radiation Safety Officer in your Berlin, Connecticut field office falsified certain refresher training records and provided these falsified records to an NRC inspector in an attempt to show that refresher training had been conducted as required by your license.

The NRC must be able to rely on licensees and their employees to conduct their activities in accordance with NRC requirements, and to provide complete and accurate information to the NRC during its inspections. The falsification of records associated with the training of radiography personnel, and the attempt to portray them to the NRC as an accurate record of the training given, are of particular concern and increase the significance of this matter. 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 civil penalty with a base value of $6,000 is considered for a Severity Level III problem. Because Cooperheat-MQS has been the subject of escalated enforcement action within the last 2 years,⁽¹⁾ and because the violations were willful, 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. The NRC determined that credit for Identification was not warranted because these violations were identified by the NRC through its inspection and investigation. The NRC determined that credit for Corrective Action was warranted based on the corrective actions that were described above. This results in the assessment of a civil penalty at the base value of $6,000.

Therefore, to emphasize the importance of monitoring your operations to assure that radiography personnel are receiving required training, and of motivating your employees to follow all NRC requirements and provide complete and accurate information to the NRC, 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. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject Cooperheat-MQS to increased inspection effort.

Cooperheat-MQS is 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 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.

		Sincerely,
		/RA/
		Bruce S. Mallett Regional Administrator

Docket No.: 030-35252
License No.: 42-32219-01

Enclosures:
1) NOV & Proposed Imposition of Civil Penalty
2) Predecisional Enforcement Conference Attendance List
3) NUREG/BR-0254 Payment Methods (Licensee only)

cc w/Enclosures 1-2:
State of Connecticut radiation control program director
State of Texas radiation control program director

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Enclosure 1

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Cooperheat-MQS, Inc. Houston, Texas

Docket No. 030-35252 License No. 42-32219-01 EA-03-151

During an NRC inspection conducted December 11-12, 2002, and an investigation completed June 16, 2003, 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:

A.

10 CFR 30.3 requires, in part, that no person shall possess or use byproduct material except as authorized in a specific license issued pursuant to the regulations of the Nuclear Regulatory Commission. License Condition 19 of License 42-32219-01 states, in part, that the licensee shall conduct its program in accordance with the statements, representations, and procedures contained in the letter dated November 13, 2000. Section 6.12.1 of the Personnel Training and Qualification Procedure, contained in the November 13, 2000, letter states, in part, that periodic refresher training totaling a minimum of 8 hours annually, shall be provided to radiographers in time frames no greater than 6 months and such training shall include 3 items from a 7-item list of topics provided. Contrary to the above, between June 29, 2001, and April 11, 2003, the licensee did not provide annual refresher training to radiographers in accordance with commitments made in the license. Specifically, annual refresher training provided at the licensee's Berlin, Connecticut, field station did not total a minimum of 8 hours annually, was not provided to all radiographers in time frames no greater than 6 months, and did not include 3 items from a 7-item list of topics provided.

B.

10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee, or information required by the Commission's regulations to be maintained by the licensee, shall be complete and accurate in all material respects. Contrary to the above, during an inspection of the licensee's field station in Berlin, Connecticut, on December 11 and 12, 2002, the licensee failed to provide complete and accurate information, both in records provided and statements made to the NRC staff concerning annual refresher training for radiographers. Specifically, during the inspection, the licensee's Facility Radiation Safety Officer provided the inspector with records he represented as attendance sheets for refresher training conducted on June 29, 2001; December 27, 2001; and June 28, 2002. However, he did not tell the inspectors that he had photocopied signatures from the June 29, 2001, attendance sheet to fabricate the December 27, 2001, and June 28, 2002, records. In addition, during the inspection, the Facility Radiation Safety Officer stated that beginning in December 2001, training was changed to 4 hours of more formalized instruction given semiannually. However, statements made by other licensee staff indicate that refresher training was not formalized but was limited to one-on-one safety discussions during the required six-month audits of radiographers and industry-related handouts. The incomplete and inaccurate information provided to the inspectors was material to the NRC because the NRC staff was evaluating the required training of radiographers against the license requirements for such training.

These violations represent a Severity Level III problem (Supplements VI and VII).
Civil Penalty – $6,000

Pursuant to the provisions of 10 CFR 2.201, Cooperheat-MQS, 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; EA-03-151" 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 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 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.

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 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 are required to post this Notice within two working days.

Dated this 30th day of December 2003

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¹ On February 19, 2003, a Notice of Violation and Proposed Imposition of $6,000 Civil Penalty was issued to Cooperheat-MQS for a Severity Level III problem involving willful failures to amend the license to reflect changes in radiation safety personnel and work locations.