EA-01-302 - High Mountain Inspection Service, Inc.

May 7, 2002

EA-01-302

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 030-33887/01-03)

Dear Mr. Fraser:

This refers to the predecisional enforcement conference conducted with High Mountain Inspection Service, Inc. (HMIS) in Casper, Wyoming on February 27, 2002. The conference was conducted to discuss 10 apparent violations of NRC requirements, the most significant of which involved HMIS management's apparent failures to ensure radiography activities were conducted in a manner that kept radiation exposures within NRC's limits. Our concerns centered around two HMIS radiographers who received annual occupational doses in excess of NRC limits in calendar year 2000. The findings from our inspection were discussed with you on January 30, 2002, and were documented in an inspection report dated February 12, 2002.

Based on the information developed during our inspection and the information that you provided during the conference and in your April 4, 2002, letter to Dwight Chamberlain, the NRC has determined that violations of NRC requirements occurred. The most significant violations are related to the overexposures and are contained in Part I of the attached Notice of Violation (Notice). They involve: (1) a failure to control annual occupational doses to two radiographers during calendar year 2000 to 5 rems; (2) a failure to formally investigate instances where personnel exceeded 500 mrem in any one month or 350 mrem per month on average during a calendar year; (3) a failure to review the radiation protection program content and implementation periodically; and (4) a failure by the RSO to assure radiation safety activities were being performed in accordance with approved procedures and requirements. During the conference, you stated that the violations occurred, in part, because of a lack of attention by your assistant radiation safety officer (ARSO) who was terminated from employment with HMIS in October 2000. In addition, you stated that you had delegated the responsibility for managing the day to day radiation safety activities of HMIS to the ARSO, and that it was not until his departure and the subsequent NRC inspection in October 2001 that you fully understood the extent of the problems that existed at HMIS.

The violations indicate that HMIS failed to adequately oversee its radiation safety program, resulting in personnel exposures to two radiographers in excess of NRC limits. Therefore, the violations in Part I are categorized collectively in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level III problem.

In accordance with the Enforcement Policy, a civil penalty in the base amount of $6,000 is considered for a Severity Level III problem. Because HMIS has not been the subject of escalated enforcement actions within the last 2 years, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. In evaluating your corrective actions, we noted that although you became aware of the overexposures in January 2001, you failed to take prompt corrective action to: (1) ensure that you were meeting the conditions of your license by investigating instances where personnel exceed 500 mrem in any one month and 350 mrem per month average; and (2) conduct an overall review of your radiation protection program to determine whether there were other requirements that you were not meeting, particularly those that may have contributed to the overexposures. Many of the violations identified by the NRC during its October 2001 inspection could have been identified and corrected by these reviews.

During the conference, you stated that your corrective actions included a commitment to provide increased oversight of the radiation safety program and contracting with a consultant to revise aspects of your program and implement a system for monitoring key requirements of the program. While we acknowledge these corrective actions, they were not prompt nor sufficiently developed at the time of the conference to warrant corrective action credit. This results in the assessment of a civil penalty at the base value.

Therefore, to emphasize the importance of assuring on an ongoing basis that you are operating your radiation safety program in accordance with NRC requirements, and the importance of prompt and comprehensive correction of violations, 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 for the Severity Level III problem described in Part I of the Notice. In addition, issuance of this Notice constitutes escalated enforcement action that may subject you to increased inspection effort.

In addition to the violations that resulted in the proposed civil penalty, six other violations were identified and are listed in Part II of the enclosed Notice. These violations are classified at Severity Level IV and are not candidates for a civil penalty.

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 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,
		/RA/
		Ellis W. Merschoff Regional Administrator

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

Enclosures:
1. Notice of Violation and Proposed Imposition of Civil Penalty
2. NUREG/BR-0254 Payment Methods

cc w/Enclosure 1: 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-01-302

During an NRC inspection completed January 24, 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:

I.	Violations Assessed a Civil Penalty
A.	10 CFR 20.1201(a)(1)(i) requires, with exceptions not applicable here, that the licensee control the occupational dose to individual adults to an annual dose limit of 5 rems total effective dose equivalent. Contrary to the above, the licensee did not limit the annual occupational dose to two adult radiographers to 5 rems, total effective dose equivalent. Specifically, the individuals received doses of 5.412 and 5.961 rems, total effective dose equivalent, for the period January 1 to December 31, 2000.
B.	Condition 18 of License 49-26808-02 requires, in part, that the licensee shall conduct its program in accordance with the statements, representations, and procedures contained in the documents submitted with the license application, including any enclosures. Specifically, Supplement 7, Section 5.7a(2) enclosed with the Application For Material License dated September 27, 2000, states, "the Radiation Safety Officer will evaluate monthly badge exposure reports and will formally investigate all instances where personnel exceed 500 mrem in any one month and 350 mrem per month average in a calendar year beginning with the second month in a calendar year. If the exposures are unwarranted corrective action will be taken. Results of the investigation and any corrective action will be summarized in a report and maintained." Contrary to the above, on several occasions from January 2000 through September 2001, the licensee failed to formally investigate all instances where personnel exceeded 500 mrem in any one month and 350 mrem per month average in a calendar year.
C.	10 CFR 20.1101(c) states that the licensee shall periodically (at least annually) review the radiation protection program content and implementation. Contrary to the above, the licensee failed to review the radiation protection program content and implementation periodically for calendar years 1999 and 2000.
D.	10 CFR 34.42 states, in part, that the RSO shall ensure that the radiation safety activities are being performed in accordance with approved procedures and regulatory requirements in the daily operation of the licensee's program. Contrary to the above, the RSO failed to ensure that the radiation safety activities were being performed in accordance with approved procedures and regulatory requirements in the daily operation of the licensee's program as required by 10 CFR 34.42. Specifically, the RSO failed to: (1) limit the annual occupational dose to two adult radiographers to 5 rems, total effective dose equivalent as required by 10 CFR 20.1201; (2) investigate all instances where personnel exceeded 500 millirem (mrem) in any one month and an average of 350 mrem per month in a calendar year as required by license condition; and (3) review the radiation protection program content and implementation for calendar years 1999 and 2000 as required by 10 CFR 20.1101.
These violations represent a Severity Level III problem (Supplement IV). Civil Penalty - $6,000
II.	Violations Not Assessed a Civil Penalty
A.	10 CFR 20.2203(a)(2)(i) requires, in part, that the licensee shall submit a written report to the U.S. Nuclear Regulatory Commission within 30 days after learning of doses in excess of the occupational dose limits for adults as specified in 20.1201. 10 CFR 20.2205 requires, in part, that the licensee provide a copy of the report submitted to the Commission as required by 10 CFR 20.2203(a) to the individual. This report must be transmitted at a time no later than the transmittal to the Commission. Contrary to the above, the licensee failed to submit a written report to the U.S. Nuclear Regulatory Commission within 30 days after learning of doses in excess of the occupational dose limits for adults as specified in 20.1201, and did not provide a copy of the report to the individual. Specifically, on January 22, 2001, the licensee concluded that two individuals employed by High Mountain Inspection Services, Inc., exceeded the regulatory dose limit of 5 rems and failed to submit a report to the U.S. Nuclear Regulatory Commission until August 21, 2001, a time interval that exceeded 30 days. Additionally, the licensee failed to provide a copy of the report to the two individuals that received a dose in excess of the regulatory dose limits as specified in 20.1201. This is a Severity IV violation (Supplement IV).
B.	10 CFR 19.13 states, in part, that the licensee shall report to the individual, annually and in writing, the worker's dose as shown in records maintained by the licensee pursuant to the provisions of 20.2106 of 10 CFR Part 20. Contrary to the above, the licensee failed to report to its workers, annually and in writing, the workers' doses for calendar years 1999 and 2000. This is a Severity Level IV violation (Supplement IV).
C.	10 CFR 34.43(e)(1) requires, in part, that the RSO or designee shall conduct an inspection program of the job performance of each radiographer and radiographer's assistant to ensure that the Commission's regulations, license requirements, and the applicant's operating and emergency procedures are followed. The inspection program must include observation of performance of each radiographer and radiographer's assistant during an actual industrial radiographic operation, at intervals not to exceed 6 months. Contrary to the above, the licensee failed to conduct inspections of the job performance for each radiographer and radiographer's assistant during an actual industrial radiographic operation, at intervals not to exceed 6 months. Specifically, from December 1999 through October 2001, several personnel employed by the licensee were not inspected for job performance at an actual radiographic operation, a period that exceeded 6 months. This is a Severity Level IV violation (Supplement VI).
D.	10 CFR 34.43(d) states that the licensee shall provide annual refresher safety training for each radiographer and radiographer's assistant at intervals not to exceed 12 months. Contrary to the above, the licensee failed to provide annual refresher safety training for each radiographer and radiographer's assistant at intervals not to exceed 12 months. Specifically, for the period of January 1999 through October 3, 2001, the licensee did not provide annual safety refresher training for several employees, an interval that exceeded 12 months. This is a Severity Level IV violation (Supplement VI).
E.	10 CFR 71.5 requires each licensee who transports licensed material to comply with the applicable DOT regulations in 49 CFR Parts 170 through 189. 49 CFR 172.702 requires that each hazmat employer shall ensure that each of its Hazmat Employees is trained and tested, and that no Hazmat Employee performs any function subject to the requirements of 49 CFR Parts 171-177 unless trained, in accordance with Subpart H of 49 CFR Part 172. The terms Hazmat Employer and Hazmat Employee are defined in 49 CFR 171.8, and the licensee meets the definition of Hazmat Employer. 49 CFR 172.704(c)(2) provides that a Hazmat Employee shall receive the training required by Subpart H of 49 CFR Part 172 at least once every 3 years. Contrary to the above, during the period between December 1999 through October 2001, the licensee did not provide training for its Hazmat Employees as required by Subpart H to 49 CFR Part 172. Specifically, from December 1999 through October 2, 2001, the licensee failed to provide recurrent hazmat training for several employees at least once every 3 years. This is a Severity Level IV violation (Supplement V).
F.	10 CFR 30.34(c) requires, in part, that each licensee confine his possession and use of byproduct material to the locations and purposes authorized by the license. Contrary to the above, on May 28, 2001, the licensee did not confine its possession and use of byproduct material to the locations authorized by the license. Specifically, from May 28 through October 2, 2001, the licensee possessed and used iridium-192 and cobalt-60 contained in radiographic exposure devices on several occasions at 2000 Revenue Drive, Casper, Wyoming, a location not authorized by the license. This is a Severity Level IV violation (Supplement VI).

Pursuant to the provisions of 10 CFR 2.201, High Mountain Inspection Service, 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 Penalty (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. 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 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 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 the time specified, 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 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 Publicly Available Records (PARS) component of 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 2.790(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 are required to post this Notice within two working days.

Dated this 7th day of May 2002