EA-03-229 - High Mountain Inspection Service, Inc.

April 27, 2004

EA-03-229
EA-04-062

Mr. Bill R. Fraser
President/Radiation Safety Officer
High Mountain Inspection Service, Inc.
P.O. Box 1508
Mills, Wyoming 82644

SUBJECT:

NOTICE OF VIOLATION & PROPOSED IMPOSITION OF CIVIL PENALTIES - $12,000 (NRC INSPECTION REPORT 030-33887/03-01 and OI INVESTIGATION REPORT 4-2003-025)

Dear Mr. Fraser:

This refers to the referenced inspection and investigation of High Mountain Inspection Service, Inc., and to the predecisional enforcement conference conducted on February 18, 2004, in Casper, Wyoming, at which four apparent violations of NRC requirements were discussed. On January 16, 2004, we informed you that the NRC was considering escalated enforcement action for the apparent violations, and on January 29, 2004, we issued an inspection report that documented the apparent violations and the results of the investigation conducted by NRC's Office of Investigations (OI). The violations involved the apparent willful failure to maintain adequate security of a radiographic exposure device, the apparent willful failure to give written exams before using newly hired individuals as radiographers' assistants, the apparent willful failure to label a radiographic exposure device properly, and the apparent failure to have required documents available during the inspection. The predecisional enforcement conference was held to give High Mountain an opportunity to provide its position on the apparent violations before the NRC made a final enforcement decision. A list of conference attendees is enclosed.

At the conference, High Mountain representatives acknowledged that a radiographic camera was left unsecured and unattended on May 8, 2003, but denied it was a willful act. With regard to the security of the camera, the radiographer stated that the truck and the camera were assigned to him on May 8, 2003. When he noticed that there was no lock on the camera or the overpack, he went shopping for a lock. He stated that when he went shopping for the lock, the requirement to maintain constant surveillance of the camera "just didn't click" because he was intent on purchasing a lock to secure the device. He stated that to take any additional measure such as leaving the helper to watch over the camera, did not occur to him when he left the camera unattended and visited various stores in Rock Springs, Wyoming on May 8, 2003. The fact that the radiographer did buy a lock for the camera's overpack, indicated the radiographer's intent to restore compliance with NRC requirements. High Mountain also acknowledged that it had dispatched an individual to be a radiographers' assistant on May 7-8, 2003, without first giving the individual a written exam, but denied that it was a willful act. High Mountain said its standard practice was to test individuals in accordance with NRC requirements and its own procedures, and characterized the NRC's finding as an isolated failure. High Mountain disputed the apparent violations involving labels and documents. Specifically, High Mountain stated that it believed the required labels were on the camera and that an inspection of the company's vehicle when it was returned to Evanston, Wyoming found the required documents in the vehicle.

The NRC has evaluated the information developed during the inspection and investigation, and the information that High Mountain provided during the conference, and has determined that certain violations of NRC requirements occurred. Based on the information High Mountain provided at the conference, as discussed above, the NRC has not found that the violations were committed willfully. The violations are cited in the enclosed Notice of Violation (Notice) and involve: A) the failure to maintain adequate security of a radiographic exposure device; B) the failure to give a written exam before using a newly hired individual as a radiographers' assistant; and C) the failure to label a radiographic exposure device properly. The failure to label a radiographic exposure device is being cited because it is clear from inspection-related documents that one label was missing at the time of the inspection. The failure to have required documents during the inspection is not being cited based on High Mountain's statements at the conference.

The NRC acknowledges that there were no actual safety consequences as a result of these violations. Violations A and B, however, involving the failure to maintain security of a radiographic exposure device and the use of an individual as a radiographers' assistant before he was properly trained, each had the potential to impact the safe use of radioactive materials. Each of these violations is an example of a Severity Level III violation in NRC's Enforcement Policy (see Supplement IV, example C.11.a., and Supplement VI, example C.6). Therefore, these violations are categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, as Severity Level III violations.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $6,000 is considered for a Severity Level III violation. Because High Mountain was the subject of escalated enforcement action within the two years preceding this inspection,⁽¹⁾ 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.

With regard to Violation A, credit for identification was not warranted because the failure to maintain surveillance of the radiographic exposure device was identified by the NRC. Credit for corrective action was warranted, because High Mountain took prompt action to secure the camera and took additional action to purchase company locks for all of the cameras. This results in the assessment of a civil penalty at the base value for Violation A in the amount of $6,000.

With regard to Violation B, credit for identification was not warranted because High Mountain's use of a radiographers' assistant who had not been properly trained was identified by the NRC. Credit for corrective action was warranted because High Mountain took prompt action to assure that all personnel were properly trained and tested, and retrained its assistant radiation safety officer in the applicable requirements. This results in the assessment of a civil penalty at the base value for Violation B in the amount of $6,000. Violation C, involving the failure to properly label a radiographic exposure device, was classified at Severity Level IV and was not assessed any civil penalties.

Therefore, to emphasize the importance of maintaining the security of radiographic exposure devices, and the importance of ensuring that radiography personnel are properly trained, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalties (Notice) in the amount of $12,000 for the Severity Level III violations described above. In addition, issuance of this Notice constitutes escalated enforcement action which may subject you to increased inspection effort.

High Mountain is required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing its response. The NRC will use the response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

At the predecisional enforcement conference, High Mountain's attorney stated that he was requesting a copy of the NRC's investigation report under the Freedom of Information Act (FOIA). He was told during the conference that FOIA requests must be made in writing. The NRC has not received a FOIA request from High Mountain as of the date of this letter. For your information, NRC regulations governing FOIA requests are located in Title 10 of the Code of Federal Regulations, Part 9, which stipulate that a request must be made in writing, and must clearly state on the envelope and in the letter that it is a "Freedom of Information Act request." Requests must be sent to:

Freedom of Information Act and Privacy Act Officer Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/
		Bruce S. Mallett Regional Administrator

Docket No.: 030-33887
License No.: 49-26808-02

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

cc w/Enclosures 1-2 only:

State of Wyoming Radiation Control Program Director

Keith P. Tyler, Esquire
140 North Center Street
Post Office Box 2671
Casper, Wyoming 82601

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Enclosure 1

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTIES

High Mountain Inspection Service, Inc. Casper, Wyoming

Docket No. 030-33887 License No. 49-26808-02 EA-03-229 and EA-04-062

During an NRC inspection and investigation completed in January 2004, 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 civil penalties 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 penalties are set forth below:

Violations Assessed a Civil Penalty

A.	10 CFR 20.1801 requires, in part, that the licensee secure from unauthorized removal or access licensed materials that are stored in unrestricted areas. 10 CFR 20.1802 requires, in part, that the licensee control and maintain constant surveillance of licensed material that is in an unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, an unrestricted area means an area, access to which is neither limited nor controlled by the licensee. Contrary to the above, on May 8, 2003, the licensee failed to secure from unauthorized removal or access, and failed to maintain constant surveillance of, a sealed source containing approximately 37 curies of iridium-192 that was not in storage. Specifically, an NRC inspector observed licensee employees leaving a radiographic exposure device containing this sealed source unattended in an unlocked compartment on the licensee's transport vehicle, an unrestricted area, while employees visited three different stores in Rock Springs, Wyoming. This is a Severity Level III violation (Supplement IV). Civil Penalty - $6,000. (EA-03-229)
B.	10 CFR 34.41(a) requires, in part, 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 individual who has at a minimum met the requirements of 10 CFR 34.43(c). Contrary to the above, on May 7-8, 2003, the licensee failed to ensure that whenever radiography was performed at temporary jobsite locations, the radiographers were accompanied by at least one other qualified radiographer or individual who at a minimum, met the requirements of 10 CFR 34.43(c). Specifically, on May 7-8, 2003, an individual who did not meet the requirements of 10 CFR 34.43(c) because he had not been fully trained and not administered a written exam, accompanied radiographers during radiographic operations and functioned as the second and only other individual on the radiography crews. This is a Severity Level III violation (Supplement VI). Civil Penalty - $6,000. (EA-04-062)
Violations Not Assessed a Civil Penalty
C.	10 CFR 71.5(a) requires, in part, 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, comply with the applicable requirements of the regulations appropriate to the mode of transport of the U.S. Department of Transportation identified in 49 CFR Parts 170 through 189. 49 CFR 172.403(b) requires, in part, that each package of radioactive material be labeled, as appropriate, with two RADIOACTIVE WHITE-I, RADIOACTIVE YELLOW-II, or RADIOACTIVE YELLOW-III labels on opposite sides of the package. The label must include the contents, activity, and transport index entered in the blank spaces on the label using a legible and durable, weather resistant means and must be expressed in terms of the appropriate International System of Units (SI Units). Contrary to the above, on May 7-8, 2003, the licensee transported a package (SPEC Model 150 radiographic exposure device, serial number 0412), containing approximately 37 curies of iridium-192 on a public highway and failed to label the package in accordance with the provisions of 49 CFR 172.403(b). Specifically, the exposure device was affixed with only one label and the label was not legible. This is a Severity Level IV violation (Supplement V).

Pursuant to the provisions of 10 CFR 2.201, High Mountain Inspection Service, 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 Penalties (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation: EA-03-229 and Ea-04-062" 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 to 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. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalties 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, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalties 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 the time specified, an order imposing the civil penalties will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalties, 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 penalties should not be imposed. In addition to protesting the civil penalties, in whole or in part, such answer may request remission or mitigation of the penalties.

In requesting mitigation of the proposed penalties, 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 penalties due which subsequently have 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, statement as to payment of civil penalties, and Answer to a Notice of Violation) should be addressed to: Mr. 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 76011-4005.

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 2.390(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 27th day of April 2004

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¹ On May 7, 2002, a Severity Level III problem and $6,000 proposed civil penalty were issued to High Mountain Inspection Service, Inc., for violations involving annual radiation exposures of radiographers that exceeded NRC limits (EA-01-302). This action was based on an inspection that occurred in October 2001.