EA-98-481 - Audie L. Murphy Memorial Veteran's Hospital
January 17, 1999
EA 98-481
Jose R. Coronado, Director
Department of Veterans Affairs
Audie L. Murphy Memorial Veteran's Hospital
7400 Merton Minter Boulevard
San Antonio, Texas 78284
| SUBJECT: | NOTICE OF VIOLATION (NRC INSPECTION REPORT 030-09959/98-01) |
Dear Mr. Coronado:
This refers to your letter dated January 15, 1999, in response to the
subject inspection report dated December 10, 1998. The inspection was
an examination of activities conducted under Byproduct Materials License
42-15881-01 as they relate to radiation safety and to compliance with
the Commission's rules and regulations and the conditions of the license.
After the in-office review of additional documents submitted to the NRC
by Audie L. Murphy Memorial Veteran's Hospital (ALMMVH), the inspection
was concluded on November 10, 1998, at which time the NRC informed
you that it was considering escalated enforcement action for an apparent
violation identified during the inspection. You elected to respond to
the apparent violation in writing, by your January 15, 1999 letter,
in lieu of requesting a predecisional enforcement conference.
Based on the information developed during the inspection, and consideration
of the information that you provided in your response to the inspection
report, the NRC has determined that a violation of NRC requirements occurred.
The violation is cited in the enclosed Notice of Violation (Notice) and
the circumstances surrounding it are described in detail in the subject
inspection report. The violation involves the unauthorized use of strontium-90
sealed sources to perform intravascular brachytherapy (IVB) procedures
on human subjects under a research protocol on two occasions in March
1998. In August 1998, during discussions about renewing ALMMVH's license,
the radiation safety officer (RSO) identified to NRC license reviewers
that the hospital had used a Novoste IVB device on humans, under a research
protocol, and that the licensee believed that 10 CFR 35.6 permitted the
activity. Nevertheless, in spite of your differing interpretation of the
regulatory requirements, you agreed to suspend further use of this device
and take certain additional actions. Your commitments were described in
a Confirmatory Action Letter (CAL 4-98-003) issued by the NRC to your
facility on August 28, 1998.
There were no actual safety consequences resulting from the violation.
The inspection found that appropriate radiation safety procedures were
utilized by ALMMVH during use of the device. These included conducting
radiation surveys, verifying patient identification, verifying treatment
sites and prescribed doses, implementing device quality control procedures,
ensuring emergency equipment availability and ensuring the presence of
a radiation oncologist, cardiologist, and medical physicist throughout
the procedure. However, the significance of the violation rests with the
fact that a device used to perform IVB procedures on human subjects had
not undergone a safety (engineering) evaluation pursuant to 10 CFR 32.210
and was not listed on a registration certificate issued by the NRC or
an Agreement State. This evaluation is especially important given that
the FDA considers IVB procedures conducted under a research protocol a
high risk activity and that some misadministrations have occurred while
using this device as a result of failing to position the sources precisely.
As such, this violation has been categorized in accordance with the "General
Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement
Policy), NUREG-1600 at Severity Level III.
In accordance with the Enforcement Policy, a civil penalty with a base
value of $2,750 is considered for a Severity Level III violation. Because
your facility has not been the subject of escalated enforcement actions
within the last two inspections, the NRC considered whether credit was
warranted for
Corrective Action
in accordance with the civil
penalty assessment process in Section VI.B.2 of the Enforcement Policy.
ALMMVH's corrective actions included immediately suspending IVB research,
returning the sealed sources to the manufacturer, and discussing NRC regulations
and the ALMMVH's license, regarding research on humans, with the ALMMVH
radiation safety committee. The NRC has determined that ALMMVH is deserving
of corrective action credit, resulting in no civil penalty being assessed.
Therefore, to encourage prompt and comprehensive correction of violations,
and in recognition of the absence of previous escalated enforcement action,
I have been authorized, after consultation with the Director, Office of
Enforcement, not to propose a civil penalty in this case. However, significant
violations in the future could result in a civil penalty. In addition,
issuance of this Severity Level III violation constitutes escalated enforcement
action, which may subject you to increased inspection effort.
The NRC has concluded that information regarding the reason for the violation,
the corrective actions taken and planned to correct the violation and
prevent recurrence, and the date when full compliance was achieved is
already adequately addressed on the docket in Inspection Report 030-09959/98-01
and in your letter dated January 15, 1999. Therefore, you are not required
to respond to this letter unless the description therein does not accurately
reflect your corrective actions or your position. In that case, or if
you choose to provide additional information, you should follow the instructions
specified in the enclosed Notice.
In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy
of this letter, its enclosure, and your response, if you choose to respond,
will be placed in the NRC Public Document Room.
| Sincerely, |
||
| Org signed by T. P. Gwynn |
||
| Ellis W. Merschoff Regional Administrator |
Docket No. 030-09959
License No. 42-15881-01
Enclosure: Notice of Violation
cc (w/encl):
Texas Radiation Control Program Director
Dr. Milton Gross
Department of Veterans Affairs
Nuclear Medicine Program
24 Frank Loyd Wright Drive
Lobby M, P. O. Box 505
Ann Arbor, Michigan 48105
|
ENCLOSURE |
| Department of Veterans Affairs Audie L. Murphy Memorial Veteran's Hospital San Antonio, Texas |
Docket No. 030-09959 License No. 42-15881-01 EA 98-481 |
During an NRC inspection completed November 10, 1998, a violation of
NRC requirements was identified. In accordance with the "General Statement
of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the
violation is listed below:
| 10 CFR 30.34(c) requires, in part, that each licensee
confine its possession and use of byproduct materials to the locations
and purposes authorized by the license. License No. 42-15881-01, conditions 9.G. and 9.H., authorize research and development as defined in Section 30.4(q), 10 CFR Part 30 (currently 10 CFR 30.4), in vitro studies, and tracer studies in humans as approved by the licensee's Radioactive Drug and Research Committee No. RDRC 0056. 10 CFR 30.4 states, in part, that "Research and development" as used in this part and parts 31 through 35 does not include the internal or external administration of byproduct material, or the radiation therefrom, to human beings. Contrary to the above, on March 3 and 4, 1998, the licensee did not confine its use of byproduct materials to the purposes authorized by the license. Specifically, the licensee used strontium-90 sealed sources to perform intravascular brachytherapy procedures, an internal administration of byproduct material on human subjects. (01013) This is a Severity Level III violation (Supplement VI). |
The NRC has concluded that information regarding the reason for the violation,
the corrective actions taken and planned to correct the violation and
prevent recurrence and the date when full compliance was achieved is already
adequately addressed on the docket in Inspection Report 030-09959/98-01
and letter from Licensee dated January 15, 1999. However, you are required
to submit a written statement or explanation pursuant to 10 CFR 2.201
if the description therein does not accurately reflect your corrective
actions or your position. In that case, or if you choose to respond, clearly
mark your response as a "Reply to a Notice of Violation," and send it
to the U.S. Nuclear Regulatory Commission, ATTN: Document Control
Desk, Washington, DC 20555 with a copy to the Regional Administrator,
Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas
76011, and a copy to the NRC Resident Inspector at the facility that is
the subject of this Notice, within 30 days of the date of the letter transmitting
this Notice of Violation (Notice).
If you contest this enforcement action, you should also provide a copy
of your response, with the basis for your denial, to the Director, Office
of Enforcement, United States Nuclear Regulatory Commission, Washington,
DC 20555-0001.
Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response
shall be submitted under oath or affirmation.
If you choose to respond, your response will be placed in the NRC Public
Document Room (PDR). Therefore, to the extent possible, the response 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.
Dated this 17th day of February 1999
