EA-00-089 - Hayes Testing Laboratory, Inc.

June 9, 2000

EA-00-089

Hayes Testing Laboratory, Inc.
ATTN: Daniel J. Hayes
President
2521 Holloway Road
Louisville, Kentucky 40299

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 150-00016/99-02 AND OFFICE OF INVESTIGATIONS REPORT NO. 2-1999-039)

Dear Mr. Hayes:

This is in reference to the Nuclear Regulatory Commission (NRC) inspection conducted on November 3, 1999, and an investigation initiated by NRC's Office of Investigations (OI) on December 1, 1999, at your Louisville, Kentucky facility. The purpose of the OI investigation was to determine whether Hayes Testing Laboratory, Inc., a licensee of the Commonwealth of Kentucky, deliberately performed radiography in areas under NRC jurisdiction without properly filing for reciprocity in accordance with our regulations. The results of the November 1999 inspection and the OI investigation were formally transmitted to you by letters dated December 2, 1999, and April 28, 2000, respectively. The April 2000 letter also provided you the opportunity to either respond to the three apparent violations or request a predecisional enforcement conference. By letter dated May 22, 2000, you responded to the apparent violations and addressed the root causes and your corrective actions to prevent recurrence. We have reviewed the information you provided and have concluded that sufficient information is available to determine the appropriate enforcement action in this matter.

Based on the information developed during the investigation and the information that was provided in your response of May 22, 2000, 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 includes three examples, involving the performance of radiography in areas of NRC jurisdiction without filing an NRC Form 241, the failure to file revisions, and the failure to clarify a May 4, 1999 NRC Form 241 to identify new job sites and to include dates for performing radiography that were not previously submitted. Notification via NRC Form 241 is intended to provide adequate information to the NRC regarding the times and locations of activities to be performed by Agreement State licensees. Although the violation was determined not to be deliberate, the failure to adequately file an NRC Form 241 is a significant concern in that it precluded the NRC from performing its oversight function of conducting safety inspections. Based on the significance of this issue, as described in the "General Statement of Policy and Procedures for NRC Enforcement Actions" NUREG-1600, the violation has been categorized as a Severity III violation.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement action as a result of previous inspection findings, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process described in Section VI.B.2.c of the Enforcement Policy. Your corrective actions included: (1) promptly filing amended NRC Forms 241 for those jobs which the NRC had not been previously notified; (2) performing radiography only in areas where the NRC has been notified appropriately via NRC Form 241; (3) submitting current NRC Forms 241 for radiography planned for the remainder of calender year 2000; and (4) implementing a new audit process to ensure the timely filing of NRC Forms 241. Based on these corrective actions, the NRC has determined that credit is warranted for the factor of Corrective Action.

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

The NRC has concluded that information regarding the reasons for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the dates when full compliance was achieved are addressed on the docket in Inspection Report No. 150-00016/99-02, your letter of May 22, 2000, our letter of April 28, 2000, and above. Therefore, you are not required to respond to this letter unless these descriptions do not adequately 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 any, will be made publicly available.

		Sincerely,
		/RA/ BSM FOR LAR
		Luis A. Reyes Regional Administrator

Docket No.: General License
License No.: 150-00016

Enclosure: Notice of Violation

cc w/encl:
Commonwealth of Kentucky

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NOTICE OF VIOLATION
Hayes Testing Laboratory, Inc. Louisville, Kentucky		Docket No.: General License License No.: 150-00016 EA-00-089

During an NRC inspection conducted on November 3, 1999, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

10 CFR 30.3 provides that no person possess or use byproduct material except as authorized by a specific or general license issued by the NRC.

10 CFR 150.20(a) states, in part, that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in non-Agreement States subject to the provisions of 10 CFR 150.20(b).

10 CFR 150.20 (b)(1) requires that an Agreement State licensee, at least 3 days before engaging in each activity for the first time in a calendar year, file a submittal containing an NRC Form 241, "Report of Proposed Activities in Non-Agreement States," 4 copies of its Agreement State specific license, and the appropriate fee.

10 CFR 150.20 (b)(2) further requires that an Agreement State licensee file an amended NRC Form 241 or letter and the appropriate fee to request approval for changes in work locations, radioactive material, or work activities different from the information contained on the initial NRC Form 241.

Contrary to the above:

	1.	Between January 5 and April 23, 1999, Hayes Testing Laboratory, Inc. used licensed materials on 31 occasions at six locations under NRC jurisdiction in Indiana and Ohio without a general or specific license. Specifically, Hayes Testing Laboratory, Inc. performed industrial radiography at these locations without having first filed an NRC Form 241 to authorize work within NRC jurisdiction under Commonwealth of Kentucky license number 201-168-05.
	2.	Between May 6 and November 3, 1999, Hayes Testing Laboratory, Inc. used licensed materials on 27 occasions at nine locations under NRC jurisdiction in Indiana and Ohio without revising the NRC Form 241 dated May 4, 1999 to identify changes of work location. Specifically, Hayes Testing did not file revisions to identify new job sites not previously listed on the NRC Form 241 dated May 4, 1999.
	3.	Between May 6 and November 3, 1999, Hayes Testing Laboratory, Inc. used licensed materials on 11 occasions at three locations under NRC jurisdiction in Indiana and Ohio without clarifying the NRC Form 241 dated May 4, 1999 to identify new dates of work. Specifically, Hayes Testing did not file clarifications to identify new dates of work at job sites previously identified on the NRC Form 241 dated May 4, 1999. (01013)

This is a Severity Level III violation. (Supplement VI)

The NRC has concluded that information regarding the reasons for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the dates when full compliance was achieved are addressed on the docket in Inspection Report No. 150-00016/99-02, your letter of May 22, 2000, our letter of April 28, 2000, and the letter transmitting this Notice of Violation (Notice). However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if these descriptions therein do not accurately reflect your corrective actions or your position. In that case, or if you chose 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, D.C. 20555 with a copy to the Regional Administrator, Region II, within 30 days of the date of the letter transmitting this 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, any response shall be submitted under oath or affirmation.

If you choose to respond, your response will be made publicly available. 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.

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

Dated this 9th day of June 2000
Atlanta, Georgia