EA-96-085 - Eastern Testing and Inspection, Inc.
Mr. Himat J. Soni, President
Eastern Testing and Inspection, Inc.
139 Crown Point Road
Thorofare, New Jersey 08086
SUBJECT: ORDER SUSPENDING LICENSES (EFFECTIVE IMMEDIATELY)
Dear Mr. Soni:
The enclosed Order Suspending Licenses (Order) is being issued to Eastern Testing and Inspection, Inc. (ETI). The bases for this action are described in the enclosed Order, and include: (1) numerous violations, some willful, of NRC requirements, (2) failure to take appropriate actions to prevent violations from recurring, and (3) the poor enforcement history of ETI. In particular, ETI deliberately created inaccurate records, in violation of 10 CFR 30.9 and 30.10, and threatened a former employee with physical harm, based on the belief that the former employee had cooperated with an NRC investigation or inspection. Also, ETI deliberately utilized an employee, with no prior radiography experience, to perform radiography one day after he was hired, even though the individual had not received the required training, and ETI deliberately falsified ETI records representing that the employee was qualified to perform radiography.
The Order requires, pending further investigation, that: (1) all NRC-licensed material in your possession shall be placed in locked storage; (2) all activities under your licenses to use licensed material shall be suspended, except for transfer to an authorized recipient with specified prior notice to the NRC; (3) no NRC-licensed material may be received while the Order is in effect; and (4) all records related to licensed activities shall be maintained in their original form and must not be removed or altered in any way. Therefore, further action will be considered as appropriate.
Pursuant to Section 223 of the Atomic Energy Act of 1954, as amended, any person who willfully violates, attempts to violate, or conspires to violate, any provision of this Order shall be subject to criminal prosecution as set forth in that section. Violation of this order also may subject the person to a civil monetary penalty. Questions concerning this Order should be addressed to Mr. James Lieberman, Director, Office of Enforcement, who may be reached at (301) 415-2741.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and the enclosure will be placed in the NRC's Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.
Sincerely, James Lieberman, Director Office of Enforcement
Docket Nos: 030-05373; 030-32163
License Nos: 29-09814-01; 29-09814-02
Enclosure: As Stated
State of New Jersey
State of New York
In the Matter of ) ) Docket Nos. 030-05373; 030-32163 EASTERN TESTING & INSPECTION, INC. ) License Nos. 29-09814-01; 29-09814-02 Thorofare, New Jersey ) EA 96-085
Eastern Testing & Inspection, Inc., (Licensee or ETI) is the holder of Byproduct Nuclear Material Licenses No. 29-09814-01 and No. 29-09814-02 issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30. License No. 29-09814-01 authorizes possession and use of iridium-192 and cobalt-60 sealed radiography sources for use in a compatible radiographic source exposure device. The license was last renewed on December 16, 1994 and is due to expire on December 31, 1999. License No. 29-09814-02 authorizes the use of portable gauges, was issued on May 23, 1991, and is due to expire on May 31, 1996.
The NRC Office of Investigations (OI) conducted an investigation of ETI and based on that investigation, it appears that with respect to License No. 29-09814-01:
(1) the ETI President, Mr. Himat Soni, deliberately caused the Licensee to create an inaccurate record in violation of 10 CFR 30.9 and 30.10, by signing an ETI radiographer's card, dated June 16, 1995, which certifies that an employee meets the applicable requirements of the SNT-TCI-IA and is authorized to perform the duties of Radiographer Level I per ETI procedures, when the employee had received only a few hours of instruction and told Mr. Soni that the employee had not completed 40 hours of formal classroom training in radiation safety as specified by ETI Radiation Safety Procedures, Procedure No. RS-1, Rev. G, (March 14, 1994), incorporated by reference in Condition 17 of License No. 29-09814-01;
(2) the ETI Radiation Safety Officer (RSO), Mr. Joseph Badiali, deliberately caused the Licensee to create an inaccurate record of an employee's Radiation Safety Examination for Assistant Radiographer, dated June 20, 1995, in violation of 10 CFR 30.9 and 30.10, by providing the employee with answers to the examination;
(3) the ETI RSO deliberately caused the Licensee to create an inaccurate record of an employee's training, in violation of 10 CFR 30.9 and 30.10, by signing a document dated June 20, 1995, representing that he had given the employee an oral quiz as part of a practical examination, when the employee had not been given the oral quiz or a practical examination;
(4) ETI deliberately directed at least one unqualified and untrained employee, the employee referred to in subparagraphs (1)-(3) above, to perform radiography between June 15, 1995, and July 26, 1995, in violation of 10 CFR 34.31;
(5) ETI personnel did not complete utilization records on 97 occasions between January 1, 1994 and August 31, 1995, in violation of 10 CFR 34.27; and
(6) on September 29, 1995, the President of ETI threatened a former employee with physical harm, based on the belief that the former employee may have cooperated with an NRC investigation and/or inspection of ETI.
In addition, on May 24, 1995, July 11 and 13, 1995, and August 1, 2, and 23, 1995, the NRC conducted an inspection at the ETI facility in Thorofare, New Jersey, and at a temporary jobsite in Deepwater, New Jersey. During the inspection, violations of NRC requirements were identified related to the radiography license (No. 29-09814-01). The violations involved:
(1) the provision of a few hours of instruction, rather than 40 hours of formal classroom instruction to an employee, who performed work as a radiographer's assistant between June 15, 1995 and July 26, 1995, in violation of 10 CFR 34.31(b) and ETI Radiation Safety Procedure No. RS-1, Revision 4, dated March 14, 1994, incorporated by reference in Condition 17 of License No. 29-09814-01;
(2) the failure to maintain records of audits of the radiation program content and implementation for 1994 and 1995, as required by 10 CFR 20.2102(a)(2);
(3) the failure to "rezero" pocket dosimeters before the start of each shift on April 12, 1994, May 6, 1994, March 16, 1995, March 28, 1995, July 6, 1995, July 26, 1995, August 8, 1995, and August 23, 1995, as required by 10 CFR 34.33(a) and ETI Radiation Safety Procedures, Procedure No. ETI-1, Revision G, dated March 14, 1994, incorporated by reference in Condition 17 of License No. 29-09814-01;
(4) the failure on January 24 and 25, 1995, and August 31, 1995, to use survey meters calibrated within three months and to maintain records of survey meter calibrations, as required by 10 CFR 34.24;
(5) the failure to complete dosimetry records for the period June 1995 through July 1995, as required by 10 CFR 20.2106(c), in that the names, social security numbers or birth dates of individuals were missing;
(6) the failure to complete utilization logs and return completed utilization logs to the Radiation Safety Officer, for the period June 1994 through August 1995, as required by ETI Radiation Safety Procedures, Procedure No. ETI-1, Revision G, dated March 14, 1994, incorporated by reference in Condition 17 of License No. 29-09814-01;
(7) the failure on August 23, 1995, to perform physical radiation surveys to ensure readings at roped-off boundaries do not exceed 2 millirem in an hour as required by ETI Radiation Safety Procedures, Procedure No. ETI-1, Revision G, dated March 14, 1994, incorporated by reference in Condition 17 of License No. 29-09814-01;
(8) the failure on August 23, 1995, to perform a survey after each exposure to determine that the sealed source has been returned to the shielded position as required by 10 CFR 34.43(b);
(9) the failure on July 12, 1995, to complete a shipping paper prior to transporting licensed material outside the confines of the licensee's plant as required by 10 CFR 71.5(a) and 49 CFR 177.817(a);
(10) the failure on July 12, 1995, to identify the activity or transport index on the RADIOACTIVE label attached to a package containing licensed material transported outside the confines of the licensee's plant, as required by 10 CFR 71.5(a) and 49 CFR 172.403; and
(11) the failure on August 23, 1995, to block and brace packages containing licensed material transported outside the confines of the ETI facility, as required by 10 CFR 71.5(a) and 49 CFR 177.842(d).
The NRC staff performed a follow-up inspection of License No. 29-09814-01 on March 14, 1996, to determine the Licensee's compliance with NRC safety requirements. The staff concludes that the Licensee deliberately falsified documents of radiographer examinations, given during an annual eight hour refresher training course, in violation of 10 CFR 30.9 and 30.10. The responses to the 22 questions on the examination, dated January 16, 1996, were identical in the examination forms of the President of ETI and a radiographer. ETI Invoice No. 32478 and ETI Work Order No. 9512220007, however, document that on January 16, 1996, the radiographer was working at a jobsite in Brooklyn, New York. The work order states that the radiographer arrived at the Brooklyn jobsite at 6:00 a.m. and departed the Brooklyn jobsite at 2:00 p.m. The job-site is approximately a three-hour drive from the Licensee's facility, at which the RSO stated that the training had been given.
The Licensee has a poor enforcement history. Civil penalties have been issued to ETI twice since 1987 for violations of NRC requirements.<1> Some of the violations identified during the subject recent 1995 inspection were repetitive of violations that formed the basis for the $7,500 civil penalty issued on September 17, 1992.<2> The currently identified violation of directing an unqualified employee to perform radiography is repetitive of a 1994 violation.<3> Some of the violations listed in the 1992 action, and to which the licensee admitted, were found to be in careless disregard of NRC requirements, and thus willful.<4>
Based on the above, the Licensee has violated numerous NRC requirements, some willfully, and has failed to take appropriate actions to prevent the recurrence of past violations. In particular, the Licensee deliberately created inaccurate records, in violation of 10 CFR 30.9 and 30.10, and threatened a former employee with physical harm, based on the belief that the former employee had cooperated with an NRC investigation or inspection. Also, the Licensee deliberately utilized an employee, with no prior radiography experience, to perform radiography one day after he was hired, even though the individual had not received the required training, and ETI deliberately falsified ETI records representing that the employee was qualified to perform radiography. The Commission must be able to rely on its Licensees to provide complete and accurate information and to otherwise comply with NRC requirements, and to refrain from conduct which could impede NRC inspections or investigations of safety concerns. The Licensee, however, through its President and its Radiation Safety Officer, Mr. Himat Soni and Mr. Joseph Badiali, respectively, has demonstrated an unwillingness to comply with NRC requirements. The actions of the Licensee and its senior officials have raised serious doubt as to whether the Licensee and its employees can be relied upon in the future to comply with NRC requirements and to maintain complete and accurate records of licensed activities.
Consequently, I lack the requisite reasonable assurance that the Licensee's current operations can be conducted under License Nos. 29-09814-01 and 29-09814-02 in compliance with the Commission's requirements and that the health and safety of the public, including the Licensee's employees, will be protected. Therefore, the public, health, safety and interest require that License Nos. 29-09814-01 and 29-09814-02 be suspended, pending further investigation. Furthermore, pursuant to 10 CFR 2.202, I find that the significance of the violations, and the willfulness of the Licensee's conduct, as described above, are such that the public health, safety, and interest require that this Order be immediately effective.
Accordingly, pursuant to sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Part 30, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT LICENSE Nos. 29-09814-01 and 29-09814-02 ARE SUSPENDED IN ACCORDANCE WITH THE FOLLOWING TERMS, PENDING FURTHER ORDER:
A. All NRC-licensed material in the Licensee's possession shall be placed in locked storage.
B. All activities under its licenses to use licensed material shall be suspended; however, licensed material may be transferred to an authorized recipient after providing written notice (telephonic facsimile is acceptable) to and receiving acknowledgement from the NRC, Region I, at least 72 hours prior to the transfer. The notice shall include the time, date, and location of the proposed transfer, identification of the materials to be transferred, and the name and license number of the recipient. All other requirements of the licenses remain in effect.
C. No NRC-licensed material shall be received while this order is in effect.
D. All records related to licensed activities shall be maintained in their original form and must not be removed or altered in any way.
The Regional Administrator, Region I, may, in writing, relax or rescind this order upon demonstration by the Licensee of good cause.
In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Order, within 20 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 an 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. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall, in writing and under oath or affirmation, specifically admit or deny each allegation or charge made in this order and set forth the matters of fact and law on which the Licensee or other person adversely affected relies and the reasons as to why the Order should not have been issued. Any answer or request for a hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Chief, Docketing and Services Section, Washington, D.C. 20555. Copies of the hearing request also should be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, to the Assistant General Counsel for Hearings and Enforcement at the same address, to the Regional Administrator, NRC Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406, and to the Licensee if the hearing request is by a person other than the Licensee. If a person other than the Licensee requests a hearing, that person shall set forth with particularity the manner in which the individual's interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.714(d).
If a hearing is requested by the Licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any other person adversely affected by this Order, may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or a written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.
FOR THE NUCLEAR REGULATORY COMMISSION James Lieberman, Director Office of Enforcement
Dated at Rockville, Maryland
this 29th day of March 1996