EA-00-231 - Testing Technologies, Inc.

November 14, 2000

EA-00-231

Testing Technologies, Inc.
ATTN: Mr. Gary Kolbenstetter, Vice President
             and Radiation Safety Officer
1241 Featherstone Road
Woodbridge, Virginia 22191

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY/EXERCISE OF ENFORCEMENT DISCRETION - $5,500 (NRC INSPECTION REPORT NO. 45-25007-01/2000-002)

Dear Mr. Kolbenstetter:

This is in reference to a Nuclear Regulatory Commission (NRC) special inspection conducted on August 28-30, 2000, of your activities at 1100 "L" Street, N.W. in Washington, D.C. The purpose of the inspection was to review the circumstances surrounding radiographic operations conducted by Testing Technologies on August 27, 2000. The results of the inspection, including five apparent violations, were discussed with you on August 30, 2000, and formally transmitted by letter dated October 4, 2000. Based on the results of the inspection, an open predecisional enforcement conference was conducted at the NRC's Region II office in Atlanta, Georgia, on October 18, 2000, to discuss the apparent violations, the root causes, and your corrective actions. A listing of conference attendees, the materials NRC presented at the conference, and your presentation materials are enclosed.

Based on the information developed during the inspection and the information you provided during the conference, the NRC has determined that violations of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), and the circumstances surrounding them are described in detail in the subject inspection report. The violations described in Part I of the Notice involve multiple failures to comply with NRC requirements during radiographic operations conducted on August 27, 2000, and include: (1) the failure to limit unrestricted area doses to less than two millirem (mrem) in any one hour; (2) the failure to post each radiation and high radiation area with the appropriate sign; (3) the failure to perform surveys necessary to demonstrate compliance with the regulations and to evaluate the radiological hazards present; and (4) the failure to maintain continuous direct surveillance of high radiation areas to protect against unauthorized entry.

At the conference, you admitted the violations. You stated that Testing Technologies' procedures were clear with respect to management expectations regarding the conduct of radiography; however, in this case the procedures were not followed by radiographic personnel. Although you indicated that communications took place between Testing Technologies and the contractor regarding the clearing of personnel from the building during radiography, ultimately individuals were present in the building on August 27, 2000, and were unaware that radiography was being performed. Testing Technologies proceeded to conduct radiography without taking adequate, independent measures to assure that affected areas were cleared of people, due, in part, to the difficulty in accessing certain areas of the building (e.g., key carded areas) and your staff's assumption that the building had been cleared. Access was controlled and postings were placed by Testing Technologies at the elevator bank on each floor where radiography was being conducted. However, adequate control and/or monitoring of high radiation areas which could be accessed from the stairwells or other areas of the building were not maintained, and an inadequate effort was made to control, survey, or post other floors affected by radiographic operations.

As a result of your failure to implement fundamental radiological controls, a member of the public, working in the building, received an unnecessary radiation exposure. The individual, working in his office, received an actual exposure estimated to be between 20 to 25 mrem, which is below the NRC's annual limit of 100 mrem dose to a member of the public. However, based on the circumstances, a significant and realistic potential existed for overexposing this individual as well as other members of the public.

During radiographic exposures on the seventh floor, the dose in unrestricted areas ranged up to 1600 millirem (based on a 10 Roentgen per hour measurement and 10 minutes of exposure), in violation of 10 CFR 20.1301(a)(2), which requires that each licensee shall conduct operations so that the dose in any unrestricted area from external sources does not exceed 0.002 rem (2 millirem) in any one hour. This violation alone could be characterized as a Severity Level III violation in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions- May 1, 2000" (Enforcement Policy), NUREG-1600. We have concluded, however, based on the interrelationship of the posting, constant surveillance, and survey violations, to catagorize, the four violations described in Part I of the Notice, collectively, as a Severity Level III problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $5,500 is considered for each Severity Level III problem. Because your facility has not been the subject of escalated enforcement action within the last two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process described in Section VI.C.2 of the Enforcement Policy. At the conference and as described in Enclosure 4, your corrective actions included: (1) participation in a re-enactment to determine the complete circumstances surrounding the event; (2) revision of the Radiographic Concrete Checklist to emphasize the requirement for access to all areas of facilities which could be impacted by radiographic operations; (3) instruction of all radiographers in proper surveying, posting, and surveillance activities during radiographic operations; (4) disciplinary action and retraining of the radiographers directly involved in the August 27, 2000, event; (5) conduct of two event briefings with company staff; (6) use of a third radiographer during operations in occupied buildings; and (7) increased audit frequency by the Radiation Safety Officer, including radiographer peer audits. Based on these facts, the NRC determined that your corrective actions were prompt and comprehensive and that credit was warranted for the factor of Corrective Action.

This assessment normally would result in no proposed civil penalty. However, the NRC may propose a civil penalty in accordance with Section VII.A.1 of the Policy, when the normal civil penalty assessment process fails to result in a proposed civil penalty, in order to address the significance of the circumstances. In this case, the failures involved particularly poor performance with respect to the overall conduct of radiographic operations including fundamental radiological controls such as surveying, postings, and surveilling. Therefore, with the approval of the Director, Office of Enforcement, and in consultation with the Deputy Executive Director for Materials, Research, and State Programs, I have been authorized to propose a base civil penalty in the amount of $5,500 for the Severity Level III problem. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

The violation described in Part II of the Notice involves the performance of radiography on August 27, 2000, by individuals who were not certified through a radiographer certification program. In accordance with the Enforcement Policy this violation may be categorized at Severity Level III. However, in this case, it has been categorized at Severity Level IV based on the fact that the individuals had successfully completed the American Society for Non-Destructive Testing (ASNT) examination and practical demonstration, at the time that radiographic operations were conducted, and the remaining actions to be completed for certification related to submittal of supporting paperwork to ASNT. Although Item 5 of Attachment 4 states that you take exception to this violation, at the conference you acknowledged that the violation occurred, and indicated that it resulted from your misunderstanding of the requirement and administrative error. As of the time of the conference, both radiographers in question had received their certification from ASNT.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response will be 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.

If you have any questions regarding this letter, please contact Douglas M. Collins, Director, Division of Nuclear Materials Safety at (404) 562-4700.

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

Docket No.: 030-30657
License No.: 45-25007-01

Enclosures:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. Conference Attendees

cc w/encls:
Commonwealth of Virginia

U.S. Department of Justice
Civil Division
ATTN: John H. Roberson, Trial Attorney
1100 "L" Street, N.W.
Washington, D.C. 205030

U.S. Department of Justice
Civil Division
ATTN: Lee J. Freeman, Trial Attorney
1100 "L" Street, N.W.
Washington, D.C. 20530

U.S. Department of Justice
Civil Division
ATTN: Roger Tweed, Chief of Facilities
1100 "L" Street, N.W.
Washington, D.C. 20530

James G. Grant, CPM
Blake Real Estate, Inc.
1150 Connecticut Avenue, N.W.
Suite 801
Washington, D.C. 20036-4104

David Deetz, Special Agent
U. S. Secret Service
1100 "L" Street, N.W.
Washington, D.C. 20530

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Testing Technologies, Inc. Woodbridge, Virginia

Docket No.: 030-30657 License No.: 45-52007-01 EA-00-231

During an NRC inspection conducted on August 28-30, 2000, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions - May 1, 2000," NUREG-1600, 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 violations and associated civil penalty are set forth below:

I.	Violations Assessed a Civil Penalty
	A.	10 CFR 20.1301 (a)(2) requires that each licensee shall conduct operations so that the dose in any unrestricted area from external sources does not exceed 0.002 rem (2 millirem) in any one hour. Contrary to the above, on August 27, 2000, the licensee conducted radiographic operations in the West Mechanical Rooms at 1100 "L" Street, N.W. in Washington, D.C. and the dose in unrestricted areas from external sources exceeded 2 millirem in any one hour. As an example, during radiographic exposures on the seventh floor, the dose in unrestricted areas, adjacent to the room where the source was exposed, ranged up to 1600 millirem(based on a 10 Roentgen per hour measurement and 10 minutes of exposure). (01013)
	B.	10 CFR 20.1902 (a) and (b) require that radiation areas and high radiation areas, respectively, be posted with a conspicuous sign or signs bearing the radiation symbol and the words "Caution-Radiation Area" and "Caution-High Radiation Area". Contrary to the above, on August 27, 2000, radiation areas and high radiation areas, respectively, were not posted with a conspicuous sign or signs bearing the radiation symbol and the words "Caution-Radiation Area" and "Caution-High Radiation Area." Specifically, radiation areas and high radiation areas in the offices and hallways adjacent to the West Mechanical Rooms on each floor at 1100 "L"Street, N.W. were not posted with a sign bearing the radiation symbol and the words "Caution-Radiation Area" or "Caution-High Radiation Area." (01023)
	C.	10 CFR 20.1501(a) requires that each licensee make or cause to be made surveys that may be necessary for the licensee to comply with the regulations in Part 20 and that are reasonable under the circumstances to evaluate the extent of radiation levels, concentrations or quantities of radioactive materials, and the potential radiological hazards that could be present. Pursuant to 10 CFR 20.1003, survey means an evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, or presence of radioactive material or other sources of radiation. Contrary to the above, on August 27, 2000, the licensee did not make surveys to assure compliance with 10 CFR 20.1301(a), which limits radiation levels in unrestricted areas to 0.002 rem in any one hour. Specifically, the licensee did not survey unrestricted areas adjacent to, including floors above and below, the West Mechanical Rooms at 1100 "L" Street, N.W. where radiography was being performed and where radiation levels exceeded regulatory requirements. (01033)
	D.	10 CFR 34.51 requires that during each radiographic operation, the radiographer or radiographer's assistant maintain direct surveillance of the operation to protect against unauthorized entry into a high radiation area, as defined in 10 CFR Part 20, except where the high radiation area is equipped with a control device or alarm system, or locked. Contrary to the above, on August 27, 2000, at a field site located at 1100 "L" Street, N.W., neither the licensee's radiographer nor the radiographer's assistant maintained direct surveillance over the radiographic operation to protect against entry into the high radiation area, and the high radiation area was not equipped with a control device or alarm system or locked. Specifically, during radiography in the West Mechanical Rooms, the radiographers were located in the elevator lobby and would not have been able to observe an individual accessing the West Mechanical Rooms or the hallways adjacent to the room where high radiation levels existed. (01043)
	This is a Severity Level III problem. (Supplement VI)
II.	Violation not Assessed a Civil Penalty
	A.	10 CFR 34.43 (a)(1) requires that a licensee not permit any individual to act as a radiographer until the individual is certified through a radiographer certification program by a certifying entity in accordance with the criteria specified in Appendix A of Part 34. Contrary to the above, on August 27, 2000, the licensee permitted two individuals who were not certified through a radiographer certification program to act as radiographers during radiographic operations conducted at 1100 "L" Street, N.W.,in Washington, D.C. Although they had passed the American Society for Nondestructive Testing (ASNT) certification exam, they had not met all of the requirements for certification by ASNT and were not considered certified by ASNT. (02013)
	This is a Severity Level IV violation. (Supplement VI)

Pursuant to the provisions of 10 CFR 2.201, Testing Technologies (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. Your response may reference or include previously 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. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, 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, Washington, DC 20555, 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 the time specified, 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(s) 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 Section VI.C.2 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 234(c) 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 II.

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 14th day of November 2000.

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LIST OF ATTENDEES

Nuclear Regulatory Commission:

B. Mallett, Deputy Regional Administrator, Region II (RII)
D. Collins, Director, Division of Nuclear Materials Safety (DNMS), RII
T. Decker, Chief, Materials Licensing and Inspection Branch 1, DNMS, RII
A. Boland, Enforcement Officer, RII
C. Evans, Regional Counsel, RII
S. Merchant, Senior Enforcement Specialist, Office of Enforcement
B. Smith, Regional Coordinator, Office of Nuclear Material Safety and Safeguards
J. McGrath, Senior Health Physicist, Region I (RI)*
E. Reber, Health Physicist, RI

Testing Technologies, Inc.
G. Kolbenstetter, Vice President and Radiation Safety Officer
J. Shepard, Radiographer

*Participated by telephone