EA-00-147 - Braun Intertec Corporation - Order

November 14, 2000

EA-00-147

George Kluempke, CEO/President
Braun Intertec Corporation
6875 Washington Avenue South
P. O. Box 39108
Minneapolis, MN 55439

SUBJECT:

ORDER IMPOSING CIVIL MONETARY PENALTY – $5,500 (NRC INSPECTION REPORT 030-21059/2000001(DNMS); NRC OFFICE OF INVESTIGATIONS CASE NO. 3-2000-007)

Dear Mr. Kluempke:

This refers to your September 12, 2000, letter in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our August 14, 2000, letter. Our letter and Notice describe a violation identified during an NRC inspection and an investigation by the NRC Office of Investigation regarding the failure to have two qualified individuals present during radiographic operations. To emphasize the significance of willful violations and the importance of compliance with regulatory requirements, a civil penalty of $5,500 was proposed.

In your response, you admit that Braun Intertec Corporation (Braun) violated NRC requirements when it failed to have two qualified individuals present when conducting radiographic operations at locations other than permanent radiographic installations (PRIs). However, you dispute our characterization that the conduct of the Radiation Safety Officer (RSO) constituted "careless disregard" when he allowed radiographic operations to continue between January 12 and 26, 2000, without consideration of the requirement to have two qualified individuals present. Based on this dispute, you believe the violation should be dispositioned at Severity Level IV and no civil penalty should be imposed.

You state that Braun's RSO was informed in December of 1999 by its client and the client's former service provider that the facilities had been approved as PRIs on a previous license. Subsequently, in December of 1999, the RSO contacted NRC licensing staff and was informed that the PRIs could be transferred directly to Braun's license. You state that during a January 12, 2000, telephone conversation both NRC licensing staff and the RSO realized that the shielded rooms had not been included on the previous service provider's license. Further, you state that this conversation did not include a discussion on how to conduct operations at the site going forward, but rather on how to expedite the process to include the rooms as PRIs on Braun's license.

In your letter, you stated that Braun and the RSO treated this as a licensing paperwork issue based on Braun's comparison of this situation to a licensing situation that occurred in November of 1999. You stated that Braun and the RSO failed to recognize that on January 12, 2000, the situation had changed from being a paperwork issue to being a substantive issue. While you state that Braun and the RSO failed to recognize the change in status, you do not believe that Braun nor the RSO demonstrated careless disregard nor willfully violated NRC regulations. You state that at worst this was negligence on the part of Braun and the RSO.

After careful consideration of your response, we have concluded that the RSO willfully violated NRC requirements by allowing radiographic operations to continue between January 12, 2000, and January 26, 2000, with only one qualified individual present. Specifically, the RSO is responsible for ensuring that radiation safety activities are being performed in accordance with regulatory requirements. This includes ensuring that radiographic operations at other than PRIs, i.e., temporary job sites, must be conducted with two qualified individuals. On January 12, 2000, the RSO was specifically informed that the two facilities had neither been approved as PRIs nor authorized on another radiographic organization's license. Your September 12, 2000, letter clearly stated that on January 12, 2000, the "RSO realized that the shielded rooms had not been licensed on the previous service provider's license as PRIs." At that point, the RSO knew or should have known that two qualified individuals were required to be present during radiographic operations at these locations.

We disagree with your assertion that Braun's actions were at worst negligent. The example you cited from NUREG-1600 addresses errors of a clerical nature that do not negatively affect safety. Braun's actions were not clerical and had the potential for affecting safe use of licensed material since the facilities had not been evaluated and approved by the NRC. Further, the RSO, as previously stated, is responsible for ensuring that radiation safety activities are being performed in accordance with regulatory requirements. In this case, while the RSO knew of the requirement, he failed to take appropriate action even when provided specific information that the two facilities were not approved PRIs. Because the RSO failed to follow-up on the significance of the information he had been provided; and, therefore failed to take appropriate actions to ensure the safe use of the licensed material, actions that he is specifically tasked to perform, it is our determination that his actions demonstrated careless disregard for the regulations.

Accordingly, we hereby serve the enclosed Order on Braun Intertec Corporation imposing a civil monetary penalty in the amount of $5,500. As provided in Section IV of the enclosed Order, payment should be made within 30 days in accordance with NUREG/BR-0254. In addition, at the time payment is made, a statement indicating when and by what method payment was made, is to be mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. We will review the effectiveness of your corrective actions during a subsequent inspection.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and the enclosures will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public NRC Library.

		Sincerely,
		/RA/
		R. W. Borchardt, Director Office of Enforcement

Docket No. 030-21059
License No. 22-16537-02

Enclosure: Order Imposing Civil Monetary Penalty

---

UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of	)
	)
Braun Intertec Corporation Minneapolis, Minnesota	)    )		Docket No. 030-21059 License No. 22-16537-02
	)		EA-00-147

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Braun Intertec Corporation (Licensee) is the holder of Materials License No. 22-16537-02 issued by the Nuclear Regulatory Commission (NRC or Commission) on September 29, 1999, and amended in its entirety on July 21, 2000. The license authorizes the Licensee to perform industrial radiography in accordance with the conditions specified therein.

II

An inspection of the Licensee's activities was conducted January 26 through February 24, 2000, and an investigation was initiated on February 7, 2000. The results of the inspection and investigation indicated that the Licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated August 14, 2000. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated September 12, 2000. In its response, the Licensee agreed with the violation, but disputed that the violation was willful or was caused by "careless disregard" on the part of licensee personnel.

III

After consideration of the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined, as set forth in the letter forwarding this Order, that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice should be imposed.

IV

In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:

The Licensee pay a civil penalty in the amount of $5,500 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time of making the payment, the licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

The Licensee may request a hearing within 30 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 extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing" and shall be submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to the Regional Administrator, NRC Region III, 801 Warrenville Road, Lisle, Illinois, 60532.

If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing. If the Licensee fails to request a hearing within 30 days of the date of this Order (or if written approval of an extension of time in which to request a hearing has not been granted), the provisions of this Order shall be effective without further proceedings. If payment has not been made by that time, the matter may be referred to the Attorney General for collection.

In the event the Licensee requests a hearing as provided above, the issues to be considered at such hearing shall be whether, on the basis of the findings made by the staff, this Order should be sustained.

		FOR THE NUCLEAR REGULATORY COMMISSION
		/RA/
		R. W. Borchardt, Director Office of Enforcement

Dated this 14th day of November 2000