EA-03-204 - U. S. Inspection Services

September 1, 2004

EA-03-204

Mr. Jim Bailey, President
U.S. Inspection Services
705 Albany Street
Dayton, OH 45408

SUBJECT: ORDER IMPOSING CIVIL MONETARY PENALTY - $19,200

Dear Mr. Bailey:

This refers to your letter dated July 12, 2004, in response to the Notice of Violation and Proposed Imposition of Civil Penalty - $19,200 (Notice) sent to you by our letter dated June 15, 2004. Our letter and Notice described six violations identified during a reactive inspection conducted on September 12, 2003, at the U.S. Inspection Services facility in Dunbar, West Virginia, and a temporary job site in Charleston, West Virginia. Follow-up inspection activities were conducted on October 29 and October 30, 2003, at the U.S. Inspection Services facility in Dayton, Ohio.

To emphasize the importance of complying with regulatory requirements, ensuring that personnel adhere to and follow procedures, providing appropriate management oversight of the radiation safety program, and promptly identifying violations, a civil penalty of $19,200 was proposed.

In your response you did not deny the violations, in whole or in part, did not dispute the severity level assigned to the violations, and you did not contest the use of enforcement discretion to increase the amount of the civil penalty. The amount of the civil penalty was increased due to a lack of management oversight of the radiation safety program that significantly contributed to the conditions leading to the overexposure event described in the June 12, 2004, letter and Notice. However, you protested the proposed imposition of a civil monetary penalty in the amount of $19,200, indicating that the civil penalty adjustment factor for Identification was incorrectly applied and no credit was given for the corrective actions that you have implemented.

With regard to the factor for identification, you contended that a prior enforcement action, EA-02-201, issued on November 29, 2002, associated with a failure to have two qualified individuals present during radiographic operations, prevented you from receiving consideration for the civil penalty adjustment factor for Identification, and should be withdrawn. In addition, you questioned the staff's interpretation of 10 CFR 34.41, "Conducting Industrial Radiographic Operations."

NRC gave careful consideration to your response, and has addressed your response in an Appendix attached to the enclosed Order. For the reasons given in the Appendix, the NRC is imposing the civil penalty by Order, and hereby serves the enclosed Order on U.S. Inspection Services imposing a civil monetary penalty in the amount of $19,200. Within 30 days you should either: (1) pay the civil penalty in accordance with Section IV of the Order, or (2) request a hearing in accordance with Section V of the Order. We will review the effectiveness of your corrective actions during a subsequent inspection.

In accordance with 10 CFR 2.390 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. 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/
		Frank J. Congel, Director Office of Enforcement

Docket No. 030-35050
License No. 34-06943-02

Enclosures:
1. Order Imposing Civil Monetary Penalty
2. NUREG/BR-0254 Payment Methods

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UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION

In the Matter of	)
	)
U.S. Inspection Services Dayton, OH	) ) )	Docket No. 030-35059 License No. 34-06943-02 EA-03-204
	)

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Materials License No. 34-06943-02 was issued by the Nuclear Regulatory Commission (NRC or Commission) to U.S. Inspection Services (Licensee) on August 31, 1999. The license authorizes the Licensee to receive, acquire, possess and transfer iridium-192 and cobalt-60 in sealed sources for use in industrial radiography and depleted uranium for shielding in industrial radiography equipment in accordance with the conditions specified therein. The license was renewed in its entirety on June 22, 2004, with Amendment No. 7 and is to expire on September 30, 2011.

II

An inspection of the Licensee's activities was conducted on September 12, 2003. The results of this inspection indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated June 15, 2004. The Notice states the nature of the violations, the provisions of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violations.

The Licensee responded to the Notice in a letter dated July 12, 2004. In its response, the Licensee did not deny the violations, in whole or in part, did not dispute the severity level assigned to the violations, and did not contest the application of enforcement discretion to increase the amount of the civil penalty. The amount of the civil penalty was increased because of a lack of management oversight of the radiation safety program that significantly contributed to the conditions leading to the overexposure event described in the June 15, 2004, letter and Notice. However, the Licensee protested the proposed imposition of a civil monetary penalty in the amount of $19,200 indicating that the civil penalty adjustment factor for Identification was applied incorrectly. The Licensee also claimed that credit was not given for the corrective actions the Licensee had implemented.

III

After considering the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined, as set forth in the Appendix to this Order, that the violations occurred as stated and that the civil penalty of $19,200 proposed for the violations designated in the Notice should be imposed.

IV

In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:

The Licensee pay a civil penalty in the amount of $19,200 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the Licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

The Licensee may request a hearing within 30 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 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. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing, EA-03-204" and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, D.C. 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region III, 2443 Warrenville Road, Suite 210, Lisle, IL 60532-4351, Because of continuing disruptions in delivery of mail to United States Government offices, it is requested that requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to hearingdocket@nrc.gov and also to the Office of the General Counsel either by means of facsimile transmission to 301-415-3725 or by e-mail to OGCMailCenter@nrc.gov.

If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.

In the event the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be, whether, on the basis of the violations admitted by the Licensee, this Order should be sustained.

		FOR THE NUCLEAR REGULATORY COMMISSION
		/RA/
		Frank J. Congel, Director Director, Office of Enforcement

Dated this 1^st day of September 2004