EA-99-013 - Bill Miller, Inc.

September 24, 1999

EA 99-013

Bill Miller, President
Bill Miller, Inc.
P. O. Box 1107
Henryetta, Oklahoma 74437

SUBJECT:

NOTICE OF VIOLATION (NRC Inspection Report No. 030-15283/98-01 and Investigation Report 4-1998-048)

Dear Mr. Miller:

This refers to the predecisional enforcement conference conducted on August 11, 1999, in the NRC's office in Arlington, Texas. The conference was conducted to discuss the results of our inspection and investigation which were documented in the subject inspection report. The exit briefing following the inspection and investigation had been conducted with you and members of your staff on July 8, 1999. During that exit briefing, we identified five apparent violations involving failures to: (1) properly secure a source assembly in a source changer in the fully shielded position, install the safety plug and safety cap, register as a user, and have a copy of the applicable certificate of compliance; (2) always provide 40 hours of radiation safety training for radiographers; (3) administer written examinations Numbers 2 and 3 to previously trained radiographers; (4) perform the required audits of radiographers and radiographer's assistants during actual radiographic operations; and (5) provide the required training to radiographer's assistants. The first apparent violation was identified following a transportation incident in which a vendor received a source changer from Bill Miller, Inc. (BMI) that had radiation dose rates in excess of NRC-required limits. In addition, with regard to the fifth apparent violation, we expressed concern that certain BMI employees might have deliberately failed to provide the required training to two radiographer's assistants prior to assigning these individuals to perform radiographic operations.

The NRC has evaluated the information that you provided during the conference, as well as the information developed during the inspection and investigation, and has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation and the circumstances surrounding them were described in detail in the subject inspection report. The first violation, which is the most significant, involves BMI's failure to properly secure a source assembly in a source changer in the fully shielded position, install the safety plug and safety cap, register as a user, and have a copy of the applicable certificate of compliance. This violation was identified following a shipping incident in November 1998, in which a source dislodged from the shielded position during shipment resulting in radiation levels of 280 millirem per hour (mrem/hr) on contact of the side of the drum overpack and 1500 mrem/hr on the bottom. As described in the subject inspection report, and based on the state of California's investigation of this incident, it was determined that BMI had not properly secured the source in the shielded position and had failed to properly install the safety plug and safety cap. The resultant dose rates were in excess of the 200 mrem/hr limit and, although there is no indication that any person actually received a radiation dose in excess of NRC limits, this is significant because the dose rates created a potential for radiation doses to workers or members of the public in excess of NRC limits. Therefore, 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 base civil penalty in the amount of $5,500 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement actions within the last 2 years, 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. Your corrective actions included developing a procedure with a detailed checklist to ensure that the safety plug and safety cap are properly installed, obtaining an up-to-date copy of the certificate of compliance, and registering as a user of the source changer. As a result, the NRC has determined that BMI is deserving of Corrective Action credit.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized 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 that may subject you to increased inspection effort.

The remaining violations have been classified at Severity Level IV and are not considered for civil penalties. Regarding the apparent violation of failing to train two radiographer's assistants, which the NRC was concerned might have involved deliberate misconduct, BMI's position during the conference was that the two individuals received the required training prior to assigning them to perform radiographic operations; and that, through an oversight, the individuals were assigned to perform radiographic operations without being administered a written examination. Specifically, the company President assigned the two individuals under the mistaken assumption that the radiation safety manager had completed their testing. BMI's position was that the failure to administer the written examinations was not the result of deliberate misconduct. Based on all available information, the failure to administer written examinations was identified as a violation (Violation B in the attached Notice of Violation), and the NRC did not conclude that any willfulness was involved. Regarding the apparent violation involving 40-hour training for radiographers, the BMI Radiation Safety Manager clarified his position that the required 40-hour training had been provided to each BMI radiographer. Therefore, it was determined that no violation had occurred.

With regard to the apparent violation involving failures to administer written examinations Numbers 2 and 3 to previously trained radiographers, BMI stated that, although the license condition was not specific, this requirement was meant to apply to radiographers who had been terminated and subsequently rehired, or to radiographers who were inactive for greater than 6 months. BMI maintained that its radiographers were generally laid-off, not terminated. During the conference, BMI did confirm that one individual who was inactive for greater than 6 months was not administered the required written examination. This single example was the basis for Violation C in the attached Notice.

In discussing the apparent violation regarding 6-month job performance inspections, during the inspection, BMI stated that it does sometimes conduct job performance inspections during mock-up radiography in the shop, and not during actual radiographic operations. However, during the conference, BMI clarified that these in-shop inspections are conducted only for radiographers who had been laid-off and were being rehired, and that these in-shop inspections were only meant to ensure their job proficiency. BMI maintained that, in accordance with NRC requirements, job performance inspections were always conducted during actual industrial radiographic operations within the required 6-month interval for radiographers who had been employed continuously. Therefore, no violation was identified regarding this issue.

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

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room.

	org signed by	Sincerely,
		Ellis W. Merschoff Regional Administrator

Docket No. 030-15283
License No. 35-19048-01

Enclosure:
Notice of Violation

cc w/enclosure:
Oklahoma Radiation Control Director
California Radiation Control Director

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NOTICE OF VIOLATION
Bill Miller, Inc. Henryetta, Oklahoma		Docket No. 030-15283 License No. 35-19048-01 EA 99-013

During an NRC inspection completed on July 8, 1999, three violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violations are listed below:

A.	10 CFR 71.12 (c) states that the general license applies only to a licensee who: (1) has a current copy of the certificate of compliance (COC),or other approval of the package, and has the drawings and other documents referenced in the approval relating to the use and maintenance of the packaging and to the actions to be taken before shipment, (2) complies with the terms and conditions of the license, certificate, or other approval, as applicable, and the applicable requirements of subparts A, G, and H of this part, and (3) submits in writing to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, before the licensee's first use of the package, the licensee's name and license number and the package identification number specified in the package approval. 10 CFR 71.5(a) requires 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, or who delivers licensed material to a carrier for transport, comply with the applicable requirements of the regulations appropriate to the mode of transport of the Department of Transportation (DOT) in 49 CFR Parts 170 through 189. 49 CFR 173.441(a) requires in part, with exceptions not applicable here, that each package of radioactive materials offered for transportation be designed and prepared for shipment so that under conditions normally incident to transportation, the radiation level does not exceed 2 millisievert per hour (200 millirem per hour) at any point on the external surface of the package. Contrary to the above, as of January 5, 1999, the licensee did not: (1) have a current copy of the COC, or other approval, for the INC Model IR-50 (COC No. 9156, Revision 5) source changer, (2) comply with the terms and conditions of the COC, in that the licensee failed to secure the source in the shielded position of the packaging by source assembly, lock, and lock cap (dust cap), and (3) submit in writing its name to the Director, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission before the licensee's first use of the package. The failure to follow the terms and conditions of the COC for the IR-50 source changer resulted in the source becoming dislodged from the shielded position and radiation levels of 2.8 millisieverts per hour (280 millirem per hour) on the surface of the source changer upon receipt of a shipment at a vendor's facility. This dose rate exceeds the 2 millisievert per hour (200 millirem per hour) limit specified in 49 CFR 173.441(a). (01013) This is a Severity Level III violation (Supplement V).
B.	10 CFR 34.43 (c)(3) requires, in part, that a licensee may not permit any individual to act as a radiographer's assistant until the individual has demonstrated understanding of the instructions provided under (c)(1) of this section by successfully completing a written test on the subjects covered. Contrary to the above, two radiographer's assistants had performed radiographic operations in calendar years 1997-1998, without first demonstrating understanding of the instructions by successful completion of a written test. (02014) This is a Severity Level IV violation (Supplement VI).
C.	License Condition 19 requires, in part, that the licensee conduct its program in accordance with statements, representations, and procedures contained in the licensee's application dated February 27, 1991. Item 5 of the attachment to the licensee's application dated February 27, 1991 states that previously trained radiographers will be required to successfully complete written examinations Numbers 2 and 3 . Contrary to the above, in November 1998, one previously trained radiographer was not administered written examinations Numbers 2 and 3 as required. (03014) This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, Bill Miller, Inc. is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation or severity level, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) 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. Where good cause is shown, consideration will be given to extending the response time.

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 Actomic Energy Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

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).

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 24th day of September 1999