EA-05-064 - High Mountain Inspection Service, Inc.

July 22, 2005

EA-05-064

Mr. Bill R. Fraser
President/Radiation Safety Officer
High Mountain Inspection Service, Inc.
P.O. Box 1508
Mills, Wyoming 82644

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY- $6,000 (NRC INSPECTION REPORT 030-33887/04-002)

Dear Mr. Fraser:

This refers to the NRC's November 4, 2004, inspection of High Mountain Inspection Service (HMIS). The inspection took place at a refinery in Cheyenne, Wyoming, a temporary jobsite, where HMIS was conducting radiography operations. On April 4, 2005, the NRC informed you that the inspection identified an apparent violation for which escalated enforcement action was being considered. On April 28, 2005, an NRC inspection report was issued which described the apparent violation and the circumstances surrounding it.

On May 31, 2005, a predecisional enforcement conference was telephonically conducted with you and members of your staff to discuss the apparent violation, its significance, the root cause, and your corrective actions. A list of conference participants is enclosed. As discussed during the conference, HMIS conducted radiography operations on November 4, 2004, using an individual who had not been fully trained to perform the role of a radiographer's assistant. In addition, this individual was not properly equipped with radiation monitoring equipment, i.e., a direct reading dosimeter, an operating alarm rate meter, and a personnel dosimeter (either a film badge or TLD). The NRC informed you during the conference that in order to comply with NRC regulations under 10 CFR 34.41(a), the second person at a temporary job site must be fully trained, and under 10 CFR 34.47(a), the licensee cannot permit any individual to act as a radiographer or radiographer's assistant unless, at all times during radiographic operations, these individuals wear all required monitoring equipment.

Based on the information developed during the inspection and the information that HMIS provided during the conference, the NRC has determined that a Severity Level III problem consisting of the two violations discussed above, and a Severity Level IV violation of NRC requirements occurred. These violations are cited in the enclosed Notice of Violation (Notice). The Severity Level III problem consists of (1) a failure to meet the requirements of 10 CFR 34.41(a) regarding the qualifications of radiography personnel and (2) the related failure to equip an individual with the radiation monitoring equipment required by 10 CFR 34.47(a). The circumstances surrounding the violations were described in detail in the subject inspection report. The Severity Level IV violation involved your failure to follow your training procedures, as required by License Condition 18 of your NRC license.

To assure radiation safety at temporary job sites, the NRC places a great deal of importance on having a second, trained individual who can provide immediate assistance should a radiographer become incapacitated during radiography operations. It is also important that all radiography personnel be equipped with radiation monitoring equipment, including dosimetry and an alarm rate meter to give warning of abnormal conditions. Thus, the NRC has classified this problem at Severity Level III, in accordance with the NRC Enforcement Policy.

In addition, the NRC reminds you of your responsibility as HMIS's radiation safety officer to assure that radiation safety activities are being performed in accordance with approved procedures and regulatory requirements in the daily operation of your NRC-licensed program. This responsibility is described in 10 CFR 34.42. HMIS's practices at this temporary job site deviated not only from NRC regulations, but from your operating procedures, which your NRC license requires you to follow.

In accordance with the NRC Enforcement Policy, for violations that occurred prior to November 26, 2004, a base civil penalty in the amount of $6,000 is considered for a Severity Level III violation. Because your company was the subject of escalated enforcement action in the last 2 years,¹ the NRC considered both Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Since the violations were identified by an NRC inspector, Identification credit is not warranted. Based on the corrective actions that HMIS took, which included your commitments to: (1) always use two High Mountain employees for all future radiography jobs performed at temporary jobsites, (2) equip them with all required radiation monitoring equipment, and (3) not allow High Mountain radiographers to train personnel from customer locations to "fill-in" as the second qualified individual required by the two-person rule in 10 CFR Part 34, Corrective Actioncredit is warranted. This results in the issuance of a civil penalty at the base value.

Therefore, to emphasize the importance of assuring that two qualified individuals are present when radiography is being performed, and equipping all radiography personnel with monitoring equipment, 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. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

You are required to respond to the Notice and should follow the instructions specified in the enclosed Notice when preparing your response. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.390 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 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/ original signed by
		Bruce S. Mallett Regional Administrator

Docket No. 030-33887
License No. 49-26808-02

Enclosure:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. Predecisional enforcement conference participants
3. NUREG/BR-0254 Payment Methods (Licensee only)

cc: State of Wyoming Radiation Control Program Director

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Enclosure 1

NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

 

High Mountain Inspection Service, Inc. Mills, Wyoming

Docket No. 030-33887 License No. 49-26808-02 EA-05-064

During an NRC inspection conducted on November 4, 2004, a violation of NRC requirements was identified. In accordance with the NRC Enforcement Policy, 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:

A. Violations Assessed a Civil Penalty

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 individual who has at a minimum met the requirements of 10 CFR 34.43(c). 10 CFR 34.43(c) requires, in part, that the licensee may not permit any individual to act as a radiographer's assistant until the individual has developed competence to use, under the personal supervision of the radiographer, the radiographic exposure devices, sealed sources, associated equipment and radiation survey instruments.

10 CFR 34.47(a) requires, in part, that the licensee not permit any individual to act as a radiographer or radiographer's assistant unless, at all times during radiographic operations, each individual wears on the trunk of the body a direct reading pocket dosimeter, an operating alarm rate meter, and a personnel dosimeter (either a film badge or TLD).

Contrary to the above, on November 4, 2004, the licensee performed radiography at a temporary job site in Cheyenne, Wyoming, and the radiographer was not accompanied by at least one other qualified radiographer or individual who had at a minimum met the requirements of 10 CFR 34.43(c). Specifically, while the radiographer was accompanied by another individual, the other individual had not developed competence to use, under the personal supervision of the radiographer, the radiographic exposure device, sealed sources, associated equipment and radiation survey instruments. In addition, the licensee did not provide the second individual with a direct reading dosimeter, a personnel dosimeter or an operating alarm rate meter, as required by 10 CFR 34.47

This is a Severity Level III problem (Supplement VI).
Civil Penalty - $6,000 (EA-05-064)

B. Violation Not Assessed a Civil Penalty

License 49-26808-02, Condition 18, states, in part, that the licensee shall conduct its program in accordance with the statements, representations and procedures contained in the documents listed below, including the Application dated September 27, 2000.

Section 8.7 of the Application dated September 27, 2000, states, in part, that the Radiation Safety Officer and Alternate Radiation Safety Officer will provide all the training of radiography personnel, including initial radiation safety training; operating and emergency procedure training; and radiography equipment training.

Contrary to the above, on July 14, 2004, a radiographer employed by High Mountain Inspection Service, Inc. (HMIS or Licensee) provided initial radiation safety training and radiography equipment training to an individual who was being trained to assist in conducting radiography operations. Specifically, the radiographer who provided this training was not the Radiation Safety Officer or Alternate Radiation Safety Officer.

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

Pursuant to the provisions of 10 CFR 2.201, HMIS (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; EA-05-064" 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 previous 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 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.

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 or the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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 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 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 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: Mr. Michael Johnson, 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, TX 76011.

Because your response will be made available electronically for public inspection in the NRC Public Document Room or from the 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 2.390(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 are required to post this Notice within two working days.

Dated this 22nd day of July 2005

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1. On April 27, 2004, the NRC issued a Notice of Violation with associated monetary civil penalties of $12,000 (EA-04-062) for failures to secure licensed material and to have two fully trained individuals at a job site.