EA-01-300 - Quality Testing & Inspection

April 9, 2002

EA-01-300

Mr. Kenneth J. Chorniak, President
Quality Testing & Inspection
1120 West 135 South
Lindon, Utah 84042

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT 150-00043/01-01 AND INVESTIGATION CASE NO. 4-2001-031)

Dear Mr. Chorniak:

This refers to the NRC's inspection and investigation of Quality Testing & Inspection (QTI) regarding QTI's conduct of radiography in NRC jurisdiction. The NRC notified you on January 11, 2002, that we were considering escalated enforcement action for an apparent, intentional violation of NRC requirements. The NRC issued an inspection report on January 25, 2002, describing this apparent violation, which involved a failure to comply with NRC radiography requirements while conducting radiography in Montana in 2000. On February 27, 2002, you participated by telephone with NRC representatives in a closed, predecisional enforcement conference to discuss the apparent violation, its significance, its cause, and your corrective actions.

During the conference, you admitted the violation and stated that it occurred because your company did not at that time understand that the NRC's "two-man rule" required a second radiographer observing the operations at the point where radiography was being conducted. You also stated that you could not challenge the statement by one of your radiographers that he understood the rule and consciously chose to violate it. Finally, you stated that QTI discovered how the "two-man rule" was to be interpreted during an inspection by the state of Utah in 2000, and that you took action following that to assure that QTI's radiographers were complying with this rule and have since incorporated it into your training programs.

After considering the information developed during our inspection and investigation and the information that you provided during the conference, the NRC has determined that a violation of NRC requirements occurred. This violation is based on QTI's failure to comply with the requirement that an additional qualified individual observe radiographic operations being conducted in Nye, Montana. This violation is significant in two respects. First, the requirement to have an additional qualified individual observing operations at the point where radiography is being conducted is to assure safety and to provide immediate assistance to prevent unauthorized persons from entering the area. Second, the violation involved a conscious decision on the part of a QTI radiographer to violate this requirement. Because the NRC cannot always be present when radiography work is being conducted, we must be able to rely on licensees and their employees to comply with all NRC safety requirements.

Therefore, this violation has been categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600. In accordance with the Enforcement Policy, a base civil penalty in the amount of $6,000 is considered for a Severity Level III violation. Because this violation was committed willfully, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. With regard to identification, QTI learned sometime in 2000 during an inspection by the state of Utah that it had not been complying with this requirement, and took prompt action to correct this. Since QTI identified the problem before the NRC became involved in this matter, QTI is deserving of identification credit. With regard to corrective actions, QTI took prompt action to correct this violation and has incorporated this requirement into its training programs for radiographers. Thus, QTI is deserving of corrective action credit. This results in no civil penalty being assessed.

Therefore, to encourage prompt identification and comprehensive correction of violations, 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 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 on the docket in Inspection Report 15000043/01-001 and in this letter. Therefore, you are not required to respond to this letter unless the description therein 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 enclosure, and 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). ADAMS is accessible from the NRC Web site at the Public NRC Library.

		Sincerely,
		/Thomas P. Gwynn Acting for/
		Ellis W. Merschoff Regional Administrator

Docket No. 150-00043
General License - 10 CFR 150.20

Enclosure: Notice of Violation

cc w/Enclosure: Utah Radiation Control Program Director

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Enclosure

NOTICE OF VIOLATION

Quality Testing & Inspection Lindon, Utah

Docket No. 150-00043 General License: 10 CFR 150.20 EA-01-300

During an NRC inspection and investigation completed January 11, 2002, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

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, provided that the provisions of 10 CFR 150.20(b) have been met.

10 CFR 150.20(b) states, in part, that notwithstanding any provisions to the contrary in any specific license issued by an Agreement State to a person engaging in activities in a non-Agreement State, the general licenses provided in this section are subject to all applicable rules, regulations and orders of the Commission.

10 CFR 34.41(a) states, in part, that whenever radiography is performed at a location other than a permanent radiographic installation, 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, based on interviews of radiography personnel employed by the licensee, on several occasions beginning in April 2000, radiography was performed in a non-Agreement State and only one qualified individual was present. Specifically, during an NRC investigation of radiographic operations conducted on a pipeline in Nye, Montana, QTI radiography personnel admitted that radiography was performed while the second individual was dispatched to develop radiographic film. Thus, the additional qualified individual did not observe operations and was not capable of providing immediate assistance to prevent unauthorized entry.

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

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 EA addressed on the docket in Inspection Report 15000043/01-001 and in the letter transmitting this Notice of Violation. Therefore, no response is required. 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 IV, at 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, within 30 days of the date of the letter transmitting this Notice of Violation.

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 Atomic Energy Act, 42 U.S.C. 2232, if you choose to respond, the response shall be submitted under oath or affirmation.

If you choose to respond, 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). ADAMS is accessible from the NRC Web site at the Public NRC Library. Therefore, to the extent possible, the response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

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

Dated this 9th day of April 2002