EA-00-169 - Stork/Twin City Testing

February 20, 2001

EA-00-169

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

SUBJECT:

ORDER IMPOSING CIVIL MONETARY 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 your December 21, 2000 letter, in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our December 15, 2000 letter. Our letter and Notice describe a deliberate violation identified during an NRC inspection and an investigation by the NRC Office of Investigations regarding the failure to have two qualified individuals present during radiographic operations. To emphasize the significance of the deliberate violation, the duration of the violation, the economic gain as a result of the violation, and the importance of compliance with regulatory requirements, a civil penalty of $11,000 was proposed.

In your response, you did not contest that Stork/Twin City Testing (Stork) violated NRC requirements when you failed to have two qualified individuals present during radiographic operations at locations other than permanent radiographic installations (PRIs). However, you request reduction of the civil penalty amount based on the safety significance of the violation, the duration of the violation while Stork was involved, and that the violation occurred at only one location of use. Based on these factors, Stork requests a reduction of the assessed civil penalty from $11,000 to $5,500.

You state that your actions were always consistent with safety requirements and that no employees were overexposed or received unnecessary exposures and that no Deltak employees or members of the public received unnecessary exposures to radiation. You also state that Twin City Testing was owned by Maxim, USA when the violation began in June 1998, and that when Stork purchased Twin City Testing in May 1999, the Chief Operating Officer did not reveal the violation to Stork. Once the violation was brought to Stork's attention, comprehensive steps were taken to preclude the recurrence of the violation, including replacing the Chief Operating Officer. Finally, you state that the violation occurred at only one facility and no violations were found during NRC inspections of other radiographic operations, such that the violation was not indicative of your operation.

After considering your response, we have concluded for the reasons given below that the civil penalty associated with this Severity Level III violation should be imposed as proposed in the Notice. The NRC acknowledges that no Twin City Testing employees received an overexposure; no Deltak employees or members of the public were exposed to unnecessary radiation; and that other inspections of your operations did not identify violations; however, these factors were considered in assessing the violation at a Severity Level III. Notwithstanding these considerations, the NRC exercised discretion to escalate the amount of the base civil penalty for this deliberate Severity Level III violation in accordance with Section VII. A.1 of the Enforcement Policy ("General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600) due to the duration of the violation and the economic gain to Stork as a result of the violation. Specifically, although Maxim owned Twin City Testing for a portion of the duration of the violation, Stork assumed ownership of Twin City Testing in May of 1999 and allowed the violation to continue from that time over a seven-month period until December 1999. The fact that the violation continued for seven months would, in itself, have warranted the escalation of the civil penalty to double the base amount, particularly given the economic gain that Stork entailed as a result of the violation.

Accordingly, we hereby serve the enclosed Order on Stork/Twin City Testing imposing a civil monetary penalty in the amount of $11,000. 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. 030-04983
License No. 22-01376-02

Enclosure:   Order Imposing Civil Monetary Penalty

---

UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of	)
Stork/Twin City Testing	)		Docket No. 030-04983
St. Paul, Minnesota	)		License No. 22-01376-02
	)		EA-00-169

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Stork/Twin City Testing (Licensee) is the holder of Materials License No. 22-01376-02 issued by the Nuclear Regulatory Commission (NRC or Commission) on August 2, 1999, and amended in its entirety on June 16, 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 25 through February 24, 2000, and an investigation by the NRC Office of Investigations 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 December 15, 2000. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated December 21, 2000. In its response, the Licensee did not contest the violation, but requested reconsideration of the amount of the civil penalty based on the safety significance of the violation, the duration of the violation while Stork was involved, and that the violation occurred at only one location of use.

III

After considering the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined that the violation occurred as stated in the Notice, that the licensee has not provided a sufficient basis to warrant reduction of the civil monetary penalty, and that therefore the civil monetary penalty in the amount of $11,000 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 $11,000 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 shall also 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, IL 60532-4351.

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
		/signed by/
		R. W. Borchardt, Director Office of Enforcement

Dated this 20th day of February 2001.