EA-99-074 - Code Services, Inc.

May 7, 1999

EA 99-074

Code Services, Inc.
ATTN: Mr. Reggie Lambert
Managing Partner
26412 Old Highway 20
Madison, AL 35758

                    (NRC INSPECTION REPORT NO. 150-00001/99-001)

Dear Mr. Lambert:

This refers to the inspection conducted on March 17 and 18, 1999, at the NASA Marshall Space Flight Center (MSFC), Huntsville, Alabama, an area of exclusive Federal jurisdiction, and your field office in Madison, Alabama. The purpose of the inspection was to determine whether activities authorized by a general license granted by the NRC in accordance with 10 CFR 150.20 were conducted safely and in accordance with NRC requirements. The results of the inspection including one apparent violation were discussed with members of your staff at an exit meeting on March 18, 1999, and formally transmitted to you by letter dated April 18, 1999. An open, predecisional enforcement conference was conducted at the NRC Region II office in Atlanta, Georgia, on April 22, 1999, to discuss the apparent violation, the root cause, and your corrective actions. The conference afforded you the opportunity to present your assessment of the effectiveness of your corrective actions and to address similar violations occurring in 1998 and documented by the State of Alabama's Department of Public Health, Office of Radiation Control. By facsimile dated April 27, 1999, you provided additional information regarding your corrective actions and documented statements of the employees interviewed by the NRC during the March 1999 inspection.

Based on the information developed during the inspection and the information that you provided during and following the conference, the NRC has determined that a violation of NRC requirements occurred. The violation is cited in the enclosed Notice of Violation (Notice), and the circumstances surrounding it are described in detail in the subject inspection report. The violation involves the failure of a radiographer's assistant to wear an alarm rate meter on February 16, 1999, while performing radiographic operations at the NASA MSFC, an area under NRC jurisdiction, as required by 10 CFR 34.47(a). This violation was identified by the NASA Radiation Safety Officer (RSO) while observing Code Services, Inc. at MSFC. Your review of the incident with the individuals involved resulted in statements that conflicted with those of the NASA RSO; however, we believe that you adequately addressed the conflicting statements as part of your corrective actions. Based on the evidence available, we conclude that the radiographer's assistant was not wearing the alarm rate meter during the radiographic operations observed by the NASA RSO.

Although, no occupational exposure limits of 10 CFR Part 20 were exceeded during the February 16, 1999 radiographic operations, the failure of personnel to use appropriate protective devices is a significant safety issue. Alarm rate meters are intended to give prompt and audible indication of high radiation levels so as to permit initiation of appropriate protective measures to avoid unnecessary or unexpected radiation exposures. Based on the safety significance of this issue, in accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, the violation described in the Notice has been categorized at Severity Level III.

In addition, the failure of Code Services, Inc. personnel to wear proper equipment during radiographic operations is a recurring problem. Code Services, Inc. was cited by the State of Alabama for a violation identified during an inspection on May 4, 1998, in which a radiographer was wearing an alarm rate meter that was not turned on during radiographic operations. On October 8, 1998, the State of Alabama again cited Code Services, Inc. for a violation that occurred on August 31,1998, during which a radiographer's alarm rate meter was not turned on, and the assistant did not have an alarm rate meter during radiographic operations.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $5500 is considered for a Severity Level III violation. Because you have been the subject of escalated enforcement actions involving similar violations issued by the State of Alabama within the last two years, 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. The MSFC site RSO identified and reported the February 16, 1999, alarm rate meter incident to you; therefore, credit for the factor of Identification was determined not to be warranted. Code Services, Inc.'s corrective actions for the Severity Level III violation included: 1) promptly conducting a mandatory safety meeting with staff on February 16, 1999; 2) attending a meeting with MSFC officials on February 18, 1999; 3) implementing a recovery plan with goals to achieve and maintain compliance with regulatory requirements; 4) issuing a follow-up letter to MSFC reiterating Code Services, Inc.'s commitment to safety and compliance; 5) increasing field audit frequencies of radiographers by the RSO from quarterly to monthly; 6) conducting weekly safety meetings with staff; and 7) implementing strong disciplinary action against the individual involved. Based on these actions, the NRC determined that corrective actions for the violation were prompt and comprehensive, and that credit was warranted for the factor of Corrective Action.

Based on the previously described assessment of Identification and Corrective Action, under our Enforcement Policy we would normally issue a base civil penalty of $5500 for the Severity Level III violation. However, after review of this violation and consultation with the Director, Office of Enforcement, the NRC has concluded that while a violation did occur, enforcement discretion is warranted, and the issuance of a civil penalty is not appropriate in this case. Discretion is being exercised pursuant to Section VII.B.6 of the Enforcement Policy based on 1) the new management/ownership of the company (as of November 1998) has taken steps to improve staff compliance with safety requirements; 2) significant disciplinary action was taken demonstrating to the employees that this violation would not be tolerated; 3) initial corrective actions taken by Code Services, Inc. in response to NASA's finding were prompt; and 4) radiographic operations directly observed by the NRC inspector in March 1999 were conducted safely and in accordance with regulatory requirements. However, Code Services, Inc. is on notice that should a similar violation occur in the future, more significant enforcement may be taken.

You are required to respond to this letter 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 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response will be placed in the 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.

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

Luis A. Reyes
Regional Administrator

Notice of Violation

Docket No. 150-00009
License No. General (10 CFR 150.20)

cc w/encls:
State of Alabama

Code Services, Inc.
Huntsville, Alabama
  Docket No. 150-00001
License No. General License
EA 99-074

During an NRC inspection conducted on March 17 and 18, 1999, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedures for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

     10 CFR 150.20 provides 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 areas of exclusive Federal jurisdiction within Agreement States, provided an NRC Form-241 is properly filed. The general license is subject to all provisions of the Act and to all applicable rules, regulations and orders of the Commission including Subpart C of Part 34.

10 CFR 34.47(a) requires, in part, that a licensee may not permit any individual to act as a radiographer or a radiographer's assistant unless, at all times during radiographic operation, each individual wears, on the trunk of the body, an operating alarm rate meter.

Contrary to the above, on February 16, 1999, an individual, employed by Code Services, Inc., who holds a specific license from the State of Alabama and was granted an NRC general license pursuant to 10 CFR 150.20, acted as a radiographer's assistant at the NASA Marshall Space Flight Center, Huntsville, Alabama, an area of exclusive Federal jurisdiction, and the individual failed to wear an alarm rate meter. (01013)

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

Pursuant to the provisions of 10 CFR 2.201, Code Services, Inc. is hereby required to submit a written statement or explanation to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region II, within 30 days of the date of the letter transmitting this Notice of Violation (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for the violation: (1) the reason for the violation, or, if contested, the basis for disputing the violation, (2) the corrective steps that have been taken and the results achieved, (3) the corrective steps that will be taken to avoid further violations, and (4) 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. Where good cause is shown, consideration will be given to extending the response time.

If you contest this enforcement action, you should also provide a copy of your response to the Director, Office of Enforcement, U. S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and the Enforcement Officer, Region II.

Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

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. 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 with two working days.

Dated at this 7th day of May, 1999

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