EA-01-169 - Stork/Twin City Testing

December 15, 2000

EA-00-169

Matthew Horton
Chief Operating Officer
Stork/Twin City Testing
622 Cromwell Avenue
St. Paul, MN 55114-1776

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$11,000 (NRC INSPECTION REPORT 030-04983/2000001(DNMS); NRC OFFICE OF INVESTIGATIONS CASE NO. 3-2000-007)

Dear Mr. Horton:

This refers to the special inspection conducted January 25 through February 24, 2000, and the subsequent investigation by NRC's Office of Investigation (OI). The inspection reviewed Stork/Twin City Testing's (Stork) radiographic operations at a temporary job site in Plymouth, Minnesota. The inspection report was transmitted to Stork on February 24, 2000, and identified an apparent violation of NRC requirements for failing to have two qualified individuals present when conducting radiographic operations at temporary job sites. The purpose of the OI investigation was to review potentially deliberate actions by members of your staff regarding the apparent violation. The OI investigation was completed on June 9, 2000. Our July 28, 2000, letter discussed the apparent violation, our decision to hold a predecisional enforcement conference with you and members of your staff, and provided you a summary of the OI investigation.

On August 16, 2000, a closed, transcribed predecisional enforcement conference (PEC) was conducted in the Region III Office in Lisle, Illinois with you and members of your staff to discuss the apparent violation, its significance, the root cause, and your corrective actions.

Based on the information developed during the inspection and investigation, and the information provided during the conference, 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 below and in detail in the subject inspection report.

In a letter dated May 11, 1998, your Radiation Safety Officer (RSO) requested a license amendment to list a client's facility in Plymouth, Minnesota as a temporary job site. The letter specified that the location would be utilized for the use and storage of radiography equipment. This letter also stated that vaults were under construction and additional information would be forwarded to the NRC at a later date to add the rooms as permanent radiographic installations (PRIs). No further licensing correspondence regarding the client's facility was provided to the NRC. The RSO stated at the PEC that he did not pursue any licensing actions because he had concerns about the adequacy of the shielding in the rooms, especially the roof, and believed a request to add the rooms as PRIs would be denied. The RSO stated at the PEC that he performed surveys of these facilities to verify the adequacy of the shielding, but did not document the surveys and could not recall when the surveys were performed. Between June 1998 and December 1999, the RSO negotiated with the client to add additional shielding. During the January 25 through February 24, 2000, inspection, it was identified that radiographic operations were performed in the shielded rooms (temporary job sites) with only one radiographer present at each location. The RSO informed the inspector that he was aware of the NRC requirement to have two qualified individuals present during radiographic operations at temporary job sites and of the necessary licensing actions required to have the client's facility approved as a PRI. However, the RSO failed to have two qualified individuals perform radiography because of economic reasons. Therefore, based on the available evidence, the NRC concludes that the individual deliberately allowed radiography operations to be conducted at a temporary job site with only one qualified individual between June 27, 1998 and December 30, 1999.

In this case the failure to conduct radiographic operations with two qualified individuals would be categorized as a Severity Level IV violation due to the low safety significance, since the areas appeared to meet the requirements of PRIs or would meet the requirements with minor modifications or limitations on their use. However, the NRC is particularly concerned that the RSO deliberately allowed radiographic operations to continue with only one qualified individual present. It is essential that the NRC be able to maintain the highest confidence that licensees and their employees will abide by requirements designed to protect the health and safety of the public. Therefore, based on deliberateness, the NRC has increased the severity level and has categorized the violation in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, November 9, 1999, 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 the violation is considered willful, 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. Credit is not warranted for identification since the violation was NRC identified. Credit is warranted for corrective actions, which you provided in hand-outs and discussed at the PEC, and which included: moving the RSO to a position where he has no direct involvement with radiographic operations nor responsibility for regulatory compliance; changing RSO responsibilities such that he is not involved with economic matters; utilizing a contractor to perform quarterly audits of the radiation safety activities for at least one year; and retraining of all radiography staff on the requirements for radiographic operations at temporary job sites. An August 24, 2000, inspection determined that your corrective actions were adequate.

While the NRC recognizes that application of the civil penalty assessment process in the Enforcement Policy would have resulted in a base civil penalty, we are exercising discretion in accordance with Section VII.A.1 of the Enforcement Policy to increase the penalty. Specifically, we are increasing the value of the civil penalty due to the duration of the violation (June 27, 1998 to December 30, 1999) and the financial gain involved. Stork recognized a financial gain in that there would have been increased expenses if they had used two radiographers. The RSO was concerned that passing these expenses on to the client would have resulted in early termination of the contract.

Therefore, due to the duration of the violation, the economic gain as a result of the violation, and to emphasize the significance of deliberate violations and the importance of compliance with regulatory requirements, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of $11,000, which is twice the base amount. In addition, issuance of this Notice constitutes escalated enforcement action, that 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 as discussed above. Therefore, you are not required to respond to the provisions of 10 CFR 2.201 unless the description herein 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 enclosures and your response, if you choose to provide one, 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/ James L. Caldwell for
		J. E. Dyer Regional Administrator

Docket No. 030-04983
License No. 22-01376-02

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Stork/Twin City Testing St. Paul, Minnesota

Docket No. 030-04983 License No. 22-01376-02 EA-00-169

During an NRC inspection conducted between January 25 and February 24, 2000, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, November 9, 1999, the NRC proposes to impose a civil penalty 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 violation and associated civil penalty are set forth below:

10 CFR 34.41(a) requires that whenever radiography is performed at a location other than a permanent radiographic installation, i.e., a temporary job site, the radiographer must be accompanied by at least one other qualified radiographer or an individual who has at a minimum met the requirements of section 34.43(c). The additional qualified individual shall observe the operations and be capable of providing immediate assistance to prevent unauthorized entry. Radiography may not be performed if only one qualified individual is present.

Contrary to the above, between June 27, 1998 and December 30, 1999, radiography was performed at a temporary job site, a location other than a permanent radiographic installation, with only one qualified individual present. Specifically, radiography was performed within two rooms at a client's facility in Plymouth, Minnesota, by only one qualified radiographer at each room, and these rooms had not been reviewed and approved by the NRC to qualify as permanent radiographic installations. (010103)

This is a Severity Level III violation (Supplement VI).
Civil Penalty - $11,000

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 as discussed in 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 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 III, Lisle, Illinois 60532- 4351, within 30 days of the date of the letter transmitting this Notice.

The Licensee may pay the civil penalty proposed above in accordance with NUREG/BR-0254 and by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalty 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 30 days of the date of the letter transmitting this Notice, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, 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 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 penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Sections VI.C.2 and V.A.1 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 penalty.

Upon failure to pay any civil penalty due, which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, 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, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: R. W. Borchardt, 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 III, Lisle, Illinois, 60532-4351.

Because your response 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), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. 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 15^th day of December 2000.