EA-02-221 - Magna Chek, Inc.

January 29, 2003

EA-02-221

Douglas Poling
Chief Executive Officer
Magna Chek, Inc.
32701 Edward Avenue
Madison Heights, MI 48071-1422

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$6,000 (NRC INSPECTION REPORT NO. 030-18632/2002001(DNMS) AND INVESTIGATION CASE NO. 3-2002-008)

Dear Mr. Poling:

This refers to the inspection conducted between April 16, 2002, and May 1, 2002, and the investigation completed by the Office of Investigations (OI) on September 18, 2002, at the Warren, Michigan facility. The purpose of the inspection was to determine whether radiography activities were conducted safely and in accordance with NRC requirements. The inspection report was issued on May 23, 2002, and identified four unresolved issues. After further review of these unresolved issues, we identified two apparent violations of NRC requirements. Our October 23, 2002, letter requesting a predecisional enforcement conference, discussed these two apparent violations. The purpose of the OI investigation was to review potentially deliberate actions by members of your staff. As a result of the investigation, OI concluded that one individual deliberately performed radiographic operations without being certified through a recognized radiographer certification program. OI also concluded that your radiation safety officer (RSO) willfully allowed this individual to perform radiographic operations without being certified.

On December 3, 2002, a closed (transcribed) predecisional enforcement conference was conducted in the Region III office with you and a member of your staff to discuss the apparent violations, their significance, their root causes, and your corrective actions.

Based on the information developed during the inspection, the investigation, and the information provided during the conference, the NRC has determined that two violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding them are described in detail in the subject inspection report.

Violation A of the Notice involves the deliberate conduct of radiographic operations by an individual who was not certified as a radiographer through a certifying entity. Between August 1999 and February 2002, the individual independently performed radiography at your permanent radiographic installation. Additionally, this individual performed radiography at temporary job sites without the presence of a qualified (certified) radiographer on numerous occasions between August 1999 and February 2002. This violation is a significant regulatory concern because certification is intended to provide assurance of the quality of radiographer training in the safe handling of radioactive material to enhance radiography safety. This violation is also of concern because this individual deliberately violated NRC regulations when he independently performed radiographic operations without being certified, and the radiation safety officer exhibited careless disregard toward NRC requirements when he allowed an individual to perform radiographic operations at the permanent facility and temporary job sites, without being certified. It is essential that the NRC be able to maintain the highest trust and confidence that licensees and their employees will act with integrity and abide by requirements to protect the health and safety of the public. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 at Severity Level III.

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 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.C.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 discussed at the predecisional enforcement conference and included: (1) immediately requiring that radiography be performed by or under the supervision of your only certified radiographer; (2) placing all radiography cameras into storage on June 17, 2002; and (3) amending your license on November 21, 2002, for storage only incident to disposal of all licensed material.

Notwithstanding the credit for corrective actions, to emphasize the significance of willful 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 base amount of $6,000. Since you have indicated your intent to discontinue use of licensed material, the NRC staff will provide you with a grace period of 60 days from the date of this letter; that is, if you transfer the licensed material to an authorized recipient within 60 days of the date of this letter and comply with NRC's requirements contained in 10 CFR 30.36, the NRC will forego imposition of the $6,000 civil penalty in the enclosed Notice. Please contact Jamnes Cameron at (630) 829-9500 within 14 days of the date of this letter to notify the NRC if you plan to dispose the licensed material within this grace period. In addition, you should provide written confirmation to the NRC when you have properly disposed of or transferred all licensed material. Finally, issuance of this Notice constitutes escalated enforcement action, that may subject you to increased inspection effort.

Violation B in the Notice involves the failure to review the radiation protection program content and implementation at least annually. In accordance with the Enforcement Policy this violation is categorized at Severity Level IV.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in this letter. Therefore, you are not required to respond to the provisions of 10 CFR 2.201 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(s), and your response, if any, will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which is accessible from the NRC Web site at the Public NRC Library. The NRC also includes Issued Significant Enforcement Actions on its Web site.

		Sincerely,
		/RA/ James L. Caldwell
		J. E. Dyer Regional Administrator

Docket No. 030-18632
License No. 21-19111-02

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Magna Chek, Inc. Madison Heights, Michigan

Docket No. 030-18632 License No. 21-19111-02 EA-02-221

During an NRC inspection conducted from April 16, 2002 through May 1, 2002, and the investigation completed on September 18, 2002, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," 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:

A.	10 CFR 34.43(a)(1) requires, in part, that licensees 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 10 CFR Part 34. 10 CFR 34.41(a) requires, 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 radiographer's assistant. Radiography may not be performed if only one qualified individual is present. Contrary to the above, on numerous occasions between August 31, 1999, and February 7, 2002, an individual acted as a radiographer and was not certified, through a radiographer certification program, by a certifying entity. Specifically, the individual performed radiography at the licensee's permanent radiographic installation without being certified. Additionally, at locations other than the permanent radiographic installation, e.g.,at temporary job sites, he performed radiography without the presence of an individual qualified to perform radiography.
This is a Severity Level III violation (Supplement VI). Civil Penalty - $6,000
B.	10 CFR 20.1101(c) requires that the licensee periodically (at least annually) review the radiation protection program content and implementation. Contrary to the above, between January 1, 2001, and April 16, 2002, the licensee did not periodically (at least annually) review the radiation protection program content and implementation. Specifically, the licensee did not review the radiation program in 2001.

This is a Severity Level IV violation (Supplement IV).

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved, is already adequately addressed on the docket in the letter transmitting this 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, Suite 255, 801 Warrenville Road, Lisle, IL 60532 within 60 days of the date of the letter transmitting this Notice of Violation (Notice).

The licensee may pay the proposed civil penalty 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 60 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty, 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 violations 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 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: Frank Congel, 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, Suite 255, 801 Warrenville Road, Lisle, IL 60532-4351.

If you choose to respond, your response will be made available electronically for public inspection in the NRC Public Document Room or from the NRC's document system (ADAMS), which 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 may be required to post this Notice within two working days.

Dated this 29^th day of January 2003.