EA-97-444 - Marshall Miller & Associates

January 29, 1999

EAs 97-444 & 98-313

Marshall Miller & Associates
ATTN: Mr. Scott Keim
              Senior Vice-President
P. O. Box 848
Bluefield, VA 24605-0848

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES - $8,800 (NRC INSPECTION REPORT NOS. 52-17195-01/97-01 AND OFFICE OF INVESTIGATIONS REPORT NO. 2-97-023)

Dear Mr. Keim:

This refers to the Nuclear Regulatory Commission (NRC) inspection conducted on September 2-3, 1997, at your facility in Bluefield, Virginia, and an NRC Office of Investigations (OI) investigation completed on August 11, 1998. The purpose of the inspection was to follow up on the events surrounding the unplanned radiation exposures to individuals as a result of handling and transporting an unshielded well logging source in August 1997. The report documenting the inspection was issued on September 29, 1997. The purpose of the OI investigation was to determine whether Marshall Miller & Associates (MMA) employees willfully failed to conduct radiation surveys, failed to provide adequate radiation safety training, and falsified training and radiation survey records. The synopsis to the OI report and a discussion of each apparent violation were transmitted to you by letter dated October 8, 1998. At your request, additional information regarding the apparent violations was provided to you by letter dated October 21, 1998. Based on the results of the inspection and investigation, a closed, transcribed, predecisional enforcement conference was conducted at the NRC Region II office in Atlanta, Georgia, on November 6, 1998, to discuss the apparent violations, the root causes, and your corrective actions to preclude recurrence. Enclosure 2 provides a listing of attendees at the predecisional enforcement conference. Enclosures 3 and 4 contain copies of the materials presented by MMA (redacted) and the NRC, respectively.

Based on the information developed during the inspection and the OI investigation, and the information you provided during the conference, the NRC has determined that violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalties (Notice), and the circumstances surrounding them are described in detail in the subject inspection report and in our letters dated October 8 and 21, 1998.

The violations in Part I.A of the Notice involve multiple instances in which regulatory and license requirements were violated, and include: (1) the failure of the Radiation Safety Officer (RSO) to perform the minimum duties as required by License Condition 26; (2) the conduct of logging activities by eight individuals who had not received training in the amount or manner required by 10 CFR 39.61(b) and/or License Condition 26; (3) the failure to conduct radiation surveys associated with well logging activities as required by 10 CFR 39.67(a) and (b) (this issue also involves failure to conduct vehicle surveys at temporary job sites prior to transporting licensed material, which is repetitive of a violation issued in Inspection Report No. 45-17195-01/96-01); (4) the failure to keep a calibrated and operable radiation survey instrument capable of detecting beta and gamma radiation at a temporary job site in order to conduct the radiation surveys as required by 10 CFR 39.33(a); (5) the failure of a well logger to visually check a source holder, logging tool, and source handling tool for defects before each use to ensure that the equipment was in good working condition and labeling was present, as required by 10 CFR 39.43(a); and (6) the failure to lock, and physically secure to prevent tampering or removal by unauthorized persons, a cesium 137 source located in a tool box when it was transported to and from temporary job sites, as required by 10 CFR 39.31(b)(1).

As enumerated above, MMA failed to adhere to multiple safety and regulatory barriers, which resulted in the failure to promptly identify on August 18-20, 1997, that a 125-millicurie cesium 137 well logging source had become detached from its housing. The consequences of the lack of control and proper handling of the unshielded source were unplanned radiation exposures to MMA employees. Although the occupational exposure limits of 10 CFR Part 20 were not exceeded, this lack of control of radioactive material could have resulted in more substantial exposures to MMA employees and to members of the public. In addition to the unplanned exposures, the extent of noncompliance which existed at MMA and the lack of proper oversight of the licensed activities by the RSO underscores the significance of these issues. Although the violations are principally indicative of performance deficiencies of the RSO and the well logging staff, senior MMA management was unaware of the pervasiveness of these issues, and provided little or no oversight of the RSO with respect to his regulatory duties and responsibilities. MMA management did not establish a standard of regulatory compliance and ensure adherence to this standard. Therefore, the NRC concluded that these issues collectively represented a breakdown in the radiation safety program at MMA.

The violations in Part I.B of the Notice are associated with the completeness and accuracy of training records provided to the NRC for seven well loggers as required by 10 CFR 30.9(a), and the failure to maintain complete and accurate radiation survey and utilization records as required by 10 CFR 30.9(a), 10 CFR 39.39(b), and 10 CFR 39.67(f). Violation (1) of Part I.B of the Notice occurred, in part, because the RSO did not understand that the training requirements prescribed by the license did not provide for equivalency determinations in lieu of the conduct of training, nor did he have a complete understanding of the need for literal compliance in this regard. The RSO erroneously believed that an individual's prior education and experience could be used to satisfy training requirements. In addition, the RSO documented only estimates of the training provided to individuals, which were an inaccurate reflection of the actual number of hours of training provided by the RSO and this information was provided to the NRC. The RSO also provided to the NRC "certifications" that individuals had received the required training, when in fact all required training had not been completed. Violation (2) of Part I.B of the Notice occurred when a well logger documented the conduct of radiation surveys during the period of July and August 1997, when in fact no surveys had been performed. In addition, although not the subject of the enclosed Notice, interviews with other MMA well loggers indicated that this practice was not an isolated event.

The NRC concluded that certain of the violations described in Part I.A. and I.B. of the Notice (i.e., the failures to conduct radiation surveys and maintain complete and accurate survey and utilization logs) were willful, in this case careless disregard. Willful violations of regulatory requirements are of significant concern to the NRC because our regulatory program is based on licensees and their employees acting with integrity and communicating with candor. The completeness and accuracy of records required by NRC regulations and the license are essential elements to providing NRC with assurance that personnel are adequately trained and that activities are being conducted safely and in accordance with regulatory requirements. In addition, MMA's failure in its oversight responsibilities to provide the RSO with adequate guidance, to provide sufficient resources to the RSO to perform his duties, and to provide oversight of the RSO with respect to his RSO activities demonstrates careless disregard of NRC requirements. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, the violations described in Part I.A and in Part I.B of the Notice have been categorized separately as two Severity Level II problems.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $4,400 is considered for each Severity Level II problem. The NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Although MMA identified and reported the uncontrolled logging source event, the violations described in Parts I.A and I.B of the Notice were generally identified by the NRC as a result of the inspection and investigation. Therefore, credit for the factor of Identification was determined not to be warranted. MMA's corrective actions for the violations included promptly hiring a consultant knowledgeable in well logging activities and the regulatory requirements relating to these activities; substantial retraining of well loggers by the consultant; appointment of a new RSO; establishment of a Radiation Safety Committee to review and oversee radiation safety program issues and program implementation; daily review of radiation survey and utilization records by senior MMA management; periodic inspection of logging units and activities by the RSO or an assistant RSO, including unannounced inspections; establishment of disciplinary action for individuals who fail to properly conduct and document surveys; and other actions discussed and documented by MMA management at the predecisional enforcement conference. Based on these facts, the NRC determined that corrective actions for the violations were prompt and comprehensive, and that credit was warranted for the factor of Corrective Action, resulting in a base civil penalty of $4400 for each Severity Level II problem.

Therefore, to emphasize the need for effective management oversight of licensed activities and in recognition of the seriousness of violations involving careless disregard, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice in the total amount of $8,800 for the two Severity Level II problems. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The remaining violations being cited are described in Section II of the enclosed Notice and are classified separately at Severity Level IV. These violations involve the failure to maintain survey documents and records at the Bluefield, Virginia, field station for well logging truck #10 for the periods November 14, 23, and 26, 1996, and May 1-14, 1997, as required by 10 CFR 39.73(j), and the failure on September 2, 1997, to store licensed material with a proper label as required by 10 CFR 39.31(a)(2).

The NRC's letter of October 8, 1998, and Inspection Report No. 45-17195-01/97-01 also identified an apparent violation associated with the failure to maintain utilization documents and records at the Bluefield, Virginia, field station for well logging truck #10 for the period March 17-23, 1997 (apparent violation No. 11 in our October 8 letter, EEI 45-17195-01/97-01-10 in the inspection report). Based on the additional information MMA provided at the predecisional enforcement conference, the NRC has concluded that a violation did not occur. We will adjust our records accordingly.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC 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 placed in the 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.

If you have any questions regarding this letter, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety at (404) 562-4700.

		Sincerely,
		Luis A. Reyes Regional Administrator

Docket No. 030-12341
License No. 45-17195-01

Enclosures
1.  Notice of Violation and Proposed
       Imposition of Civil Penalties

cc w/encls:
Commonwealth of Virginia

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTIES

Marshall Miller and Associates Bluefield, Virginia		Docket No.030-12341 License No.45-17195-01 EAs 97-444 & 98-313
During an NRC inspection conducted on September 2-3, 1997, and an NRC Office of Investigations investigation completed on August 11, 1998, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures 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:

I.  Violations Assessed a Civil Penalty

	A.	(1)	Condition 26.B of License No. 45-17195-01, Amendment No. 19, requires, in part, that the licensee conduct its program in accordance with the statements, representations and procedures contained in a letter dated February 8, 1993. Licensee letter dated February 8, 1993, states, in part, that the minimum duties of the Radiation Safety Officer (RSO) are to establish and conduct the training program for logging supervisors, examine and determine the competence of logging personnel, ensure that licensed materials are used only by those individuals who have satisfactorily completed appropriate training programs or who are authorized by the license, review and ensure maintenance of utilization logs, and establish and maintain proper transportation labels. Contrary to the above, as of September 2, 1997, the minimum duties of the RSO were not being conducted, as required by License Condition 26.B, in that the RSO failed to adequately train logging supervisors (as described in Violation I.A.(2)), to adequately examine and determine the competence of logging personnel (as described in Violation I.A.(2)), to ensure that licensed materials were used only by those individuals who had satisfactorily completed appropriate training programs (as described in Violation I.A.(2)), to adequately review and ensure maintenance of utilization logs (as described in Violation I.B.(2)), and to establish and maintain proper transportation labels. (01012)
		(2)	10 CFR 39.61(b) requires that the licensee may not permit an individual to act as a logging assistant until that person: (1) has received instruction in applicable sections of 10 CFR Parts 19 and 20; (2) has received copies of, and instruction in, the licensee's operating and emergency procedures required by 10 CFR 39.63; (3) has demonstrated understanding of the materials listed in paragraphs (b)(1) and (2) of this section by successfully completing a written or oral test; and (4) has received instruction in the use of licensed materials, remote handling tools, and radiation survey instruments, as appropriate for the logging assistant's intended job responsibilities. License condition 26B requires, in part, that the licensee conduct its program in accordance with the statements, representations and procedures contained in a letter dated February 8, 1993. Exhibit "N" to the February 8, 1993, letter, Training Manual, states in part, that (1) all logging supervisors will have at least 8 hours of classroom instruction in the applicable sections of 10 CFR Parts 19, 20 and 39, in the terms and conditions of the NRC license and in operating and emergency procedures required by section 39.63, approximately 24 hours of classroom instruction in the topics in paragraph 39.61(e) of 10 CFR Part 39, and a minimum of one month field operations for small sources and three months for the larger sources; (2) all training is performed by the RSO or his assistant; and (3) written and field examinations are given to each logging supervisor before they are allowed to independently use equipment containing radioactive material and any incorrect answers are gone over and explained in as much detail as needed. Contrary to the above, the licensee failed to conduct training in accordance with 10 CFR 39.61(b) and/or Exhibit "N" of the Training Manual as evidenced by the following examples:
			a.	On numerous occasions from August 11-27, 1997, the licensee permitted an individual to act as a logging assistant and to conduct well logging activities using millicurie quantities of cesium 137 and americium 241 at temporary job sites without receiving all training, as required by 10 CFR 39.61(b).
			b.	During the period July 1996 through August 1997, seven well logging supervisors had conducted licensed activities without receiving the required number of hours of training by the RSO or his assistant. Specifically, although Training Progress Reports for the seven well logging supervisors documented a range of from 8 to 32 hours of training, movement records and electronic logging sheets reflected that the RSO and the well logging supervisors were not in the same locations during the hours that the training was purportedly given. In fact, the RSO relied on his estimate of trainee self-study time in recording the documented hours rather than performing actual training.
			c.	As of September 3, 1997, all training of well loggers was not performed by either the RSO or his assistant, as required by Exhibit "N", Training Manual. Specifically, two well loggers had been given training by two senior well loggers and two other well loggers. In addition, another well logger had been trained by the Assistant Manager of Geophysical Logging, an individual who was not named as either the RSO or RSO assistant.
			d.	On or about June 17, 1997, the licensee gave a logging supervisor a written examination, and the incorrect answers had not been reviewed with that individual as of September 3, 1997, and the individual had been permitted to independently use equipment that contained radioactive material between June 17 and September 3, 1997. (01022)
		(3)	10 CFR 39.67(a) requires, in part, that the licensee make radiation surveys of each area where licensed materials are used and stored. 10 CFR 39.67(b) requires that before transporting licensed materials, the licensee shall make a radiation survey of the position occupied by each individual in the vehicle and of the exterior of each vehicle used to transport the licensed materials. Contrary to the above, from June 17 - August 25, and on August 27, 1997, the licensee did not conduct surveys of each area where licensed materials were used and stored, nor did the licensee conduct radiation surveys of the position occupied by each individual in the vehicle and the exterior of the vehicles used to transport licensed material from temporary job sites, before transporting the licensed material. (01032)
		(4)	10 CFR 39.33(a) requires, in part, that the licensee keep a calibrated and operable radiation survey instrument capable of detecting beta and gamma radiation at temporary jobsites to make the radiation surveys required by 10 CFR Parts 20 and 39. Contrary to the above, on August 27, 1997, the licensee did not keep a calibrated and operable radiation survey instrument capable of detecting beta and gamma radiation at a temporary job site in Brandy, Virginia, in order to conduct the radiation surveys specified in by 10 CFR Parts 20 and 39. (01042)
		(5)	10 CFR 39.43(a) requires, in part, that the licensee visually check source holders, logging tools, and source handling tools, for defects before each use to ensure that equipment is in good working condition and required labeling is present. Contrary to the above, on August 19, 20, and 25, 1997, a licensee well logger did not visually check a source holder, logging tool, and source handling tool for defects before each use of a 125-millicurie cesium 137 source to ensure that the equipment was in good working condition and labeling was present. As a result, the licensee failed to identify that a well logging source had become separated from its source holder. (01052)
		(6)	10 CFR 39.31(b)(1) requires, in part, that the licensee store each source containing licensed material in a storage container or transportation package. The container or package must be locked and physically secured to prevent tampering or removal of licensed material from storage by unauthorized personnel. Contrary to the above, from August 20-27, 1997, the licensee failed to lock and physically secure to prevent tampering or removal by unauthorized persons a 125 millicurie cesium-137 source located in a tool box when it was transported to and from temporary job sites. (01062)
These violations represent a Severity Level II problem. (Supplement VI). Civil Penalty - $4,400.
	B.	(1)	10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the licensee shall be complete and accurate in all material respects. Contrary to the above, on September 2-3, 1997, the licensee provided information to a representative of the Commission which was incomplete and inaccurate. Specifically, the licensee provided to an NRC inspector Training Progress Reports for seven well logging supervisors that documented only estimates of the training provided to the individuals, and these estimates were an inaccurate reflection of the actual number of hours of training provided by the RSO. In addition, the licensee provided to the inspector training certifications for seven well logging supervisors that indicated that the well logging supervisors had completed the required training when in fact all required training had not been completed. The Training Progress Reports and certification records were material to the NRC as this information is relied upon to determine whether individuals who use licensed material are adequately trained in the use of licensed materials and the license and regulatory requirements governing its use. (02012)
		(2)	10 CFR 30.9(a) requires, in part, that information provided to the Commission by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the licensee shall be complete and accurate in all material respects. 10 CFR 39.39(a) requires, in part, that the licensee maintain records for each use of licensed material showing the make, model number and a serial number or a description of each sealed source used; the identity of the logging supervisor who is responsible for the licensed material and the identity of logging assistants present; and the location and date of use of the licensed material. 10 CFR 39.67(f) requires that results of radiation surveys required under paragraphs 10 CFR 39.67(a) and 10 CFR 39.67(b) must be recorded and must include the date of the survey, the name of the individual making the survey, the identification of the survey, instrument used, and the location of the survey. Contrary to the above, from June 17 to August 26, 1997, the licensee failed to maintain complete and accurate radiation survey and utilization records. Rather, the licensee created and provided to the NRC on September 2 and 3, 1997, inaccurate radiation survey and utilization records for the period of June 17 to August 26, 1997, in that the records contained information concerning radiation surveys when in fact no surveys had been conducted. The records were material to the NRC as this information is relied upon to determine compliance with regulatory requirements and to ensure that adequate measures were taken to ensure public health and safety. (02022)
These violations represent a Severity Level II problem. (Supplement VII). Civil Penalty - $4,400.

II.   Violations Not Assessed a Civil Penalty

	A.	10 CFR 39.73(j) requires, in part, that each licensee maintain documents and records at the field station to include survey records required by 10 CFR 39.67. Contrary to the above, the licensee did not maintain survey documents and records required by 10 CFR 34.67 at the Bluefield, Virginia, field station for well logging truck #10 for the periods November 14, 23, and 26, 1996, and May 1-14, 1997. (03014)
	This is a Severity Level IV violation (Supplement VI).
	B.	10 CFR 39.31(a)(2) requires, in part, that the licensee may not use a container to store licensed material unless the container has securely attached to it a durable, legible, and clearly visible label. The label must contain the radiation symbol specified in 10 CFR 20.1901(a) and the wording "Caution (or Danger), Radioactive Material, Notify Civil Authorities (or Name of Company)." Contrary to the above, on September 2, 1997, the licensee used a container to store licensed material that did not have attached to it a durable, legible, and clearly visible label, as required by 10 CFR 39.31(a)(2). Specifically, a container in which millicurie quantities of cesium 137 were stored in a well logging truck did not have the required label attached. (03024)
	This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Marshall Miller and Associates (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" 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. 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. 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 violation(s) 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.B.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 penalties. 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 penalties, 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, letter with payment of civil penalties, and Answer to a Notice of Violation) should be addressed to: Mr. James Lieberman, 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 II. Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. 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 may be required to post this Notice within two working days after receipt. Dated at Atlanta, Georgia this 29th day of January 1999