EA-94-029 - NDT Services, Inc.

July 16, 1996

EA 94-029

NDT Services, Inc.
ATTN: Mr. Thomas Crossland, Owner
Río Cañas Industrial Park, Suite 370
Road No. 175, Km. 0.02, Corner Road No. 1
Caguas, Puerto Rico 00726-4952

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTIES - $15,000 (NRC Inspection Report No. 52-19438-01/93-02 and Investigation Report No. 2-93-072)

Dear Mr. Crossland:

This letter refers to a special inspection conducted by this office on December 16-17, 1993, and an investigation conducted by the Nuclear Regulatory Commission (NRC) Office of Investigations (OI) completed on December 21, 1995. During these reviews, the NRC examined the facts and circumstances surrounding a radiography event involving NDT Services, Inc. (NDTS) which occurred at the Sun Oil Company refinery in Yabucoa, Puerto Rico on September 4, 1993. NDTS was informed of the inspection findings during an exit meeting conducted on December 17, 1993, followed by the inspection report, dated February 4, 1994, and by letter, dated February 16, 1996, which forwarded the synopsis of the OI investigation report for this case. The letter also provided NDTS an opportunity to attend a predecisional enforcement conference to discuss the apparent violations, their cause, and the corrective actions to preclude recurrence. A closed, transcribed conference was conducted with NDTS on March 4, 1996, at the Region II office in Atlanta, Georgia. The report summarizing the conference was sent to you by letter dated April 1, 1996.

Based on the information developed during the inspection and the investigation as well as the information you provided during the conference, the NRC has determined that violations of NRC requirements occurred for the reasons described below. These violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalties (Notice) and the circumstances surrounding them are described in the subject inspection and investigation reports as well as our February 16, 1996 correspondence. Violations A and B in Part I of the Notice directly resulted from the misconduct of your former President and former Radiation Safety Officer (RSO), who deliberately disregarded regulatory requirements, falsified documents required by the NDTS license, and provided inaccurate and incomplete information to the NRC in violation of 10 CFR 30.10, "Deliberate Misconduct."

Violation A in Part I of the Notice involves the failure of NDTS, through the deliberate actions of the former RSO and the former President, to utilize personnel who were trained and qualified as radiographers in accordance with the requirements of 10 CFR 34.31(a). The radiographers, whose services were obtained through a third-party contractor, were not qualified to perform radiography under the NDTS license in that they had not been trained on NDTS radiography equipment or emergency and operating procedures prior to performing radiographic operations at the Sun Oil Company refinery on September 4, 1993. This contributed to the improper connection of the guide tube of the radiographic device such that the source could not be retracted into the shielded position following radiography, causing an evacuation of the Sun Oil refinery for several hours.

At the predecisional enforcement conference, NDTS expressed its position that the company was not responsible for the training of the contract radiographers because the owner of NDTS had intended to fully contract out the subject radiography work under National Inspection Consultants' (NIC's) license and therefore NDTS was not responsible for the training of these radiographers. The owner stated that he had expected the contractor to provide two fully qualified radiographers who would perform radiography activities under the contractor's license and contractor's RSO. In addition, NDTS provided copies of invoices indicating the amount of the payment made to the contractor contending that a full overhead was paid consistent with an independent contractor and the work to be done under NIC's license. The owner also stated that the former RSO was working at another site and the former President was not sufficiently knowledgeable to be aware of the training requirements under the work agreement.

While it may have been the owner's intent to fully contract out the work under NIC's license, based on all the evidence available in this case, the NRC concludes the work performed on September 4, 1993, was performed using NDTS licensed material under the provisions of the NDTS license. This conclusion is based on: (1) the former RSO's admission that he did not provide the training and did not administer a proficiency test to the two contract radiographers although he knew that training and passing this test was required prior to performing radiography under the NDTS license; (2) information obtained from NIC which indicate that the rate paid by NDTS for NIC's was neither reflective of the rate of an independent contractor nor consistent with the work to be done under NIC's license; (3) information obtained during the May 1996 interviews with the former NDTS RSO and President and a representative of NIC that all three believed that the work performed at the Sun Oil Refinery was conducted under the NDTS license; (4) the fact that NDTS licensed material was utilized to perform the radiography on September 4, 1993, without any documented transfer of the material to the contractor; (5) the fact that no written contract or other documentation was provided outlining the scope and conditions of work; (6) the fact that NIC did not file for reciprocity to work in areas under NRC jurisdiction; (7) the incident reports submitted by NDTS indicating its responsibility for the September 4, 1993, activities; and (8) the NDTS owner's admission that he was not directly involved in the contract negotiation, the use of the material, or the conditions of the use during the September 4, 1993 timeframe.

Violation B in Part I of the Notice involves the failure of your former RSO to provide complete and accurate information to the NRC during the course of the inspection. Specifically, on December 16, 1993, the former RSO provided an NRC inspector with written certification of the qualifications of the two contract radiographers, dated September 3, 1993, which was falsified following the September 4, 1993 event. In addition, during the inspection, the former RSO orally represented to an NRC inspector that he demonstrated the safe use of the NDTS radiography equipment prior to allowing two contract radiographers to operate the equipment on September 3, 1993, when he knew that he had not conducted such a demonstration. Subsequently, the former NDTS RSO admitted to NRC investigators that he falsely signed the letters designating the two contractor radiographers to perform the duties of radiographer Level II under the NDTS license and that he knew that such falsification constituted a violation of NRC regulations. Although not cited in the enclosed Notice, the NRC obtained information which indicated that subsequent to the September 4, 1993 event, the former NDTS President attempted to generate a false training record for the radiographers when he requested them to sign documents indicating that they had been trained, when in fact, they had not been.

Although no overexposure resulted from the source disconnect event, Violations A and B in Part I of the Notice are of very significant regulatory concern because of the potential adverse consequences of unqualified personnel handling radioactive sources that emit significant amounts of radiation. It was only through the common-sense actions and general knowledge of the radiographers involved in the event, who took the necessary actions to initially secure the source and surrounding area until the former RSO arrived and successfully retracted the source, that prevented this event from becoming more serious. In addition, the deliberate disregard for NRC requirements and the submittal of false information to the NRC, particularly by your former RSO, is unacceptable and a very serious matter. NRC regulatory programs rely substantially on licensees and their employees to conduct activities in accordance with regulations and to communicate fully and truthfully with the NRC.

As a result of the aforementioned activities, the former NDTS President and former NDTS RSO were found to have violated 10 CFR 30.10 and Orders are being issued to them prohibiting them from engaging in any licensed activities for a period of five years. We recognize that these two individuals are no longer employed by your company. Nevertheless, you, as an NRC licensee, are responsible for the acts of your employees, especially your management representatives. Therefore, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, Violations A and B in Part I of the Notice have been categorized in the aggregate as a Severity Level I problem.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $10,000 is considered for Violations I.A and I.B, a Severity Level I problem. The NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. In this case, the NRC has concluded that it is not appropriate to give credit for Identification because the violations were identified by the NRC as a result of our inspection and investigative efforts. In considering Corrective Action, the NRC recognizes that: (1) the former RSO was relieved of his responsibilities and a new RSO was designated; (2) the former President and former RSO involved in this case no longer work for NDTS; (3) following the September 4, 1993 incident you retained an outside firm to audit your radiation safety program, identify problems, and develop corrective actions; and (4) subsequent routine inspections of your program conducted on October 1994, June 1995, and May 1996 have noted significant improvement in the area of regulatory compliance with no similar violations identified. In view of these facts, the NRC concluded that credit is warranted for Corrective Action; and therefore, the base civil penalty of $10,000 is appropriate.

Violation C in Part I of the Notice involves the failure of the two radiographers to wear alarming ratemeters during radiographic and source retrieval activities on September 4, 1993, in accordance with 10 CFR 34.33(a). Although alarm ratemeters were available from NDTS at the Sun Oil Company work site, the former NDTS RSO did not ensure that this equipment was provided to or used by the radiographers on September 4, 1993. The root causes of this violation were the lack of RSO oversight of the activities of the radiographers and the failure to train the radiographers in this particular requirement of the NDTS license. A contributing factor was the failure of the contract radiographers to recognize the need for such equipment because, in September 1993, alarming ratemeters were not required by the State of Florida, the licensing and regulatory entity with jurisdiction over the radiographers' principal employer. The NRC places a high emphasis on the use of alarm ratemeters because they provide a real-time indication of radiation levels and aid in the prompt recognition of unanticipated, radiological incidents, such as the source disconnect event on September 4, 1993. Therefore, in accordance with the Enforcement Policy, Violation C in Part I of the Notice has been categorized as a Severity Level III violation.

In accordance with the Enforcement Policy, a base civil penalty of $5,000 is considered for a Severity Level III violation. Because your facility had not been the subject of escalated enforcement action within the last two inspections conducted prior to the December 16-17, 1993, inspection, the NRC considered whether credit was warranted for the factor of Corrective Action in accordance with the civil penalty assessment process described previously. Based on the corrective actions outlined above for Violations A and B in Part I of the Notice, the NRC determined that credit for Corrective Action was warranted, and a civil penalty would therefore, not normally be proposed. However, in considering the circumstances surrounding this particular violation, its importance to safety, previously expressed NRC concerns related to NDTS' failure to properly use alarm ratemeters<1>, and the fact that prior corrective actions were ineffective to prevent this violation, the NRC is exercising discretion in accordance with Section VI.B.2.d of the Enforcement Policy and is assessing a base civil penalty of $5,000 for this Severity Level III violation.

Violation A in Part II of the Notice involves your failure to perform adequate surveys to evaluate the extent of the radiological hazard present during source disconnect and retrieval activities. Specifically, on September 4, 1993, your former RSO conducted source retrieval activities without properly assessing the hazard and planning his actions prior to entry into the radiation field, even though his survey meter was reading off-scale and his alarming ratemeter was alarming at a pre-set level of 500 millirem per hour. The lack of planning and disregard for the survey instrumentation indications had a substantial potential for resulting in an overexposure. In addition, following the event, you failed to adequately evaluate and assign the extremity and whole body exposure of the former RSO resulting from the source retrieval activities. A calculated exposure, which was within NRC limits, was subsequently determined by the NRC through event recreation and evaluation of the thermoluminescent dosimeter results you obtained. Therefore, in accordance with the Enforcement Policy, Violation A in Part II of the Notice has been categorized as a Severity Level III violation.

For Violation A in Part II of the Notice, the NRC considered whether credit was warranted for the factor of Corrective Action in determining the appropriate civil penalty for this violation. Based on the corrective actions previously delineated, NRC determined that credit was warranted; and, therefore, no civil penalty will be assessed for this violation. However, you should be aware that any similar violations in the future could result in further enforcement action and civil penalties.

In summary, to emphasize the importance of compliance with NRC requirements and the necessity for complete and accurate information, and in recognition of your corrective actions, I have been authorized, after consultation with the Director, Office of Enforcement, the Deputy Executive Director for Nuclear Materials Safety, Safeguards and Operations Support, and the Commission, to issue the enclosed Notice in the total amount of $15,000 for the violations discussed above.

The Severity Level IV violations described in Part II of the Notice involved the failure of NDTS procedures to include the elements required by 10 CFR 34.32 for responding to a source disconnect event; the failure to determine prior occupational exposure of the two radiographers before allowing them to conduct radiography; and the transport of radiography source packages during the period 1989 through December 1993 without an NRC approved quality assurance plan. Regarding the last violation, we noted that subsequent to the December 16-17, 1993 inspection you submitted and obtained approval of your quality assurance plan. The root cause of these violations was the lack of management oversight by your former RSO and former President.

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. Your response should also include the steps you have taken to strengthen the RSO's oversight of your license. 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 placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

Should you have any questions concerning this letter, please contact us.

Sincerely, Hugh L. Thompson, Jr. Deputy Executive Director for Nuclear Material Safety, Safeguards and Operations Support

Docket No. 030-17711
License No. 52-19438-01

Enclosures: 1. Notice of Violation and Proposed Imposition of Civil Penalties
2. Order to former NDTS RSO
3. Order to former NDTS President

cc w/encl:
Mr. David Vaughn, Radiation Safety Officer
NDT Services, Inc.
Río Cañas Industrial Park, Suite 370
Road No. 175, Km. 0.02, Corner Road No. 1
Caguas, PR 00726-4952

Mr. John Shea, President
Puerto Rico Sun Oil Company
P. O. box 186
Yabucoa, PR 00767

Commonwealth of Puerto Rico

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTIES

NDT Services, Inc. Caguas, Puerto Rico

Docket No. 030-17711 License No. 52-19438-01 EA 94-029

During an NRC inspection conducted on December 16-17, 1993, and an Office of Investigations investigation completed on December 21, 1995, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission proposes to impose civil penalties 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 penalties are set forth below:

I. Violations Assessed a Civil Penalty

A. 10 CFR 34.31(a) requires that the licensee not permit any individual to act as a radiographer until such individual: has received copies of and instruction in the NRC license under which the radiographer will perform radiography, and the licensee's operating and emergency procedures; has demonstrated competence to use the licensee's radiographic exposure devices, sealed sources, related handling tools, and survey instruments; and has demonstrated understanding of the instructions in this paragraph by successful completion of a written test and field examination on the subjects covered.

Contrary to the above, on September 4, 1993, NDTS permitted two individuals to act as radiographers without giving these individuals any instruction in the NDTS license or the NDTS operating and emergency procedures, and did not have these individuals demonstrate competence on the use of NDTS radiographic exposure devices, sealed sources, related handling tools, and survey instruments. Correspondingly, no written tests or field examinations were completed. (01011)

B. 10 CFR 30.9(a) requires that information provided to, or required to be maintained by, the NRC be complete and accurate in all material respects.

Condition 12 of the NDTS license requires that records of designated radiographers and their qualifications be maintained.

Contrary to the above, the licensee maintained required information and submitted information to the Commission that was not complete and accurate in all material respects. These inaccuracies were material to the NRC's review of the training requirements for two individuals performing radiographic operations on September 4, 1993. Specifically, on December 16, 1993:

1. the former NDTS Radiation Safety Officer provided false documentation to an NRC inspector which indicated that the qualifications of two contract radiographers were based on records received from the radiographers' principal employer and on the experience demonstrated by the radiographers to the former Radiation Safety Officer. In fact, the former RSO knew that there were no contemporaneous supporting records from the radiographers' principal employer and the radiographers did not demonstrate the level of their experience to the former Radiation Safety Officer; and

2. the former NDTS Radiation Safety Officer orally represented to an NRC inspector that he demonstrated the safe use of the NDTS radiography equipment prior to allowing two new radiographers to operate this equipment on September 3, 1993, when in fact he knew that he had not conducted such a demonstration. (01021)

This is a Severity Level I Problem (Supplements VI and VII)
Civil Penalty - $10,000

C. 10 CFR 34.33(a) requires, in part, that the licensee not permit any individual to act as a radiographer unless, at all times during radiographic operations, the individual wears an alarming ratemeter.

Contrary to the above, on September 4, 1993, two individuals acting as contract radiographers for the licensee failed to wear alarming ratemeters during radiographic operations including source exposure (and disconnect) activities. (02013)

This is a Severity Level III Violation (Supplement VI)
Civil Penalty - $5,000

II. Violations Not Assessed a Civil Penalty

A. 10 CFR 20.201(b) [effective until January 1, 1994] required the licensee to 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 and the potential radiological hazards that could be present.

Contrary to the above, the licensee failed to perform adequate surveys to evaluate the extent of radiation levels and the potential radiological hazards present as follows:

1. On September 4, 1993, during an event involving a disconnect of an Iridium-192 source, a former NDTS Radiation Safety Officer, knowing that his survey meter was reading offscale and his ratemeter was alarming at 500 millirem per hour during his first approach to the event area, failed to adequately evaluate the radiation hazards before his whole body and extremities were exposed.
2. From September 4 until December 17, 1993, NDTS had not evaluated the unmonitored extremity exposure of the former NDTS Radiation Safety Officer described above in order to assign a dose, and the assignment of his whole body dose was not adjusted based on the shielding of his film badge by his knee joint which occurred when he performed the source reconnect in a crouched position. (03013)

This is Severity Level III Violation (Supplement IV)

B. 10 CFR 34.32 requires, in part, that a licensee maintain a copy of current operating and emergency procedures, including instructions in the handling and use of licensed sealed sources and radiographic exposure devices, to prevent a likelihood of persons exceeding 10 CFR Part 20 limits, methods and occasions for conducting surveys, instructions for the use of monitoring equipment, and procedures for minimizing exposure in the event of an accident.

Contrary to the above, from September 4 until December 17, 1993, NDTS emergency procedures did not include the methods and occasions for conducting surveys, instructions for the use of monitoring equipment, and procedures for minimizing exposure in the event of an incident. (04014)

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

C. 10 CFR 20.102(a) [effective until January 1, 1994] required that a licensee determine the prior occupational exposure of individuals that were likely to have received, or would receive, in excess of 25 percent of one or more of the quarterly dose limits specified in 10 CFR 20.101(a).

Contrary to the above, NDTS did not determine the prior occupational exposure of two contract radiographers to ensure that they would not exceed the limits in 10 CFR 20.101(a) prior to allowing them to perform radiography on September 4, 1993. (05014)

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

D. 10 CFR 71.12(b) requires that NDTS have an approved quality assurance program in order to transport licensed material under the provisions of 10 CFR 71.12(a).

Contrary to the above, NDTS transported radiography source packages during the period 1989 to December 17, 1993, without an approved quality assurance program. Specifically, the licensee's quality assurance program expired in 1989. (06014)

This is a repeat Severity Level IV Violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, NDT Services, Inc. (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 Penalties (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. 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 penalties by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalties proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalties 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 penalties will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalties, 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 penalties should not be imposed. In addition to protesting the civil penalties in whole or in part, such answer may request remission or mitigation of the penalties.

In requesting mitigation of the proposed penalties, the factors addressed in Section VI.B.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 penalties 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 penalties, 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, letter with payment of civil penalties, and Answer to a Notice of Violation) should be addressed to: James Lieberman, 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 placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Atlanta, Georgia
this 16th day of July 1996