[Federal Register Volume 61, Number 69 (Tuesday, April 9, 1996)]
[Notices]
[Pages 15836-15838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8787]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 030-05373; 030-32163 License Nos. 29-09814-01; 29-09814-02
EA 96-085]
Eastern Testing & Inspection, Inc. Thorofare, New Jersey; Order
Suspending Licenses Effective Immediately
I
Eastern Testing & Inspection, Inc., (Licensee or ETI) is the holder
of Byproduct Nuclear Material Licenses No. 29-09814-01 and No. 29-
09814-02 issued by the Nuclear Regulatory Commission (NRC or
Commission) pursuant to 10 CFR Part 30. License No. 29-09814-01
authorizes possession and use of iridium-192 and cobalt-60 sealed
radiography sources for use in a compatible radiographic source
exposure device. The license was last renewed on December 16, 1994 and
is due to expire on December 31, 1999. License No. 29-09814-02
authorizes the use of portable gauges, was issued on May 23, 1991, and
is due to expire on May 31, 1996.
II
The NRC Office of Investigations (OI) conducted an investigation of
ETI and based on that investigation, it appears that with respect to
License No. 29-09814-01:
(1) The ETI President, Mr. Himat Soni, deliberately caused the
Licensee to create an inaccurate record in violation of 10 CFR 30.9 and
30.10, by signing an ETI radiographer's card, dated June 16, 1995,
which certifies that an employee meets the applicable requirements of
the SNT-TCI-IA and is authorized to perform the duties of Radiographer
Level I per ETI procedures, when the employee had received only a few
hours of instruction and told Mr. Soni that the employee had not
completed 40 hours of formal classroom training in radiation safety as
specified by ETI Radiation Safety Procedures, Procedure No. RS-1, Rev.
G, (March 14, 1994), incorporated by reference in Condition 17 of
License No. 29-09814-01;
(2) The ETI Radiation Safety Officer (RSO), Mr. Joseph Badiali,
deliberately caused the Licensee to create an inaccurate record of an
employee's Radiation Safety Examination for Assistant Radiographer,
dated June 20, 1995, in violation of 10 CFR 30.9 and 30.10, by
providing the employee with answers to the examination;
(3) The ETI RSO deliberately caused the Licensee to create an
inaccurate record of an employee's training, in violation of 10 CFR
30.9 and 30.10, by signing a document dated June 20, 1995, representing
that he had given the employee an oral quiz as part of a practical
examination, when the employee had not been given the oral quiz or a
practical examination;
(4) ETI deliberately directed at least one unqualified and
untrained employee, the employee referred to in subparagraphs (1)-(3)
above, to perform radiography between June 15, 1995, and July 26, 1995,
in violation of 10 CFR 34.31;
(5) ETI personnel did not complete utilization records on 97
occasions between January 1, 1994 and August 31, 1995, in violation of
10 CFR 34.27; and
(6) On September 29, 1995, the President of ETI threatened a former
employee with physical harm, based on the belief that the former
employee may have cooperated with an NRC investigation and/or
inspection of ETI.
In addition, on May 24, 1995, July 11 and 13, 1995, and August 1,
2, and 23, 1995, the NRC conducted an inspection at the ETI facility in
Thorofare, New Jersey, and at a temporary jobsite in Deepwater, New
Jersey. During the inspection, violations of NRC requirements were
identified related to the radiography license (No. 29-09814-01). The
violations involved:
(1) The provision of a few hours of instruction, rather than 40
hours of formal classroom instruction to an employee, who performed
work as a radiographer's assistant between June 15, 1995 and July 26,
1995, in violation
[[Page 15837]]
of 10 CFR 34.31(b) and ETI Radiation Safety Procedure No. RS-1,
Revision 4, dated March 14, 1994, incorporated by reference in
Condition 17 of License No. 29-09814-01;
(2) The failure to maintain records of audits of the radiation
program content and implementation for 1994 and 1995, as required by 10
CFR 20.2102(a)(2);
(3) The failure to ``rezero'' pocket dosimeters before the start of
each shift on April 12, 1994, May 6, 1994, March 16, 1995, March 28,
1995, July 6, 1995, July 26, 1995, August 8, 1995, and August 23, 1995,
as required by 10 CFR 34.33(a) and ETI Radiation Safety Procedures,
Procedure No. ETI-1, Revision G, dated March 14, 1994, incorporated by
reference in Condition 17 of License No. 29-09814-01;
(4) The failure on January 24 and 25, 1995, and August 31, 1995, to
use survey meters calibrated within three months and to maintain
records of survey meter calibrations, as required by 10 CFR 34.24;
(5) The failure to complete dosimetry records for the period June
1995 through July 1995, as required by 10 CFR 20.2106(c), in that the
names, social security numbers or birth dates of individuals were
missing;
(6) The failure to complete utilization logs and return completed
utilization logs to the Radiation Safety Officer, for the period June
1994 through August 1995, as required by ETI Radiation Safety
Procedures, Procedure No. ETI-1, Revision G, dated March 14, 1994,
incorporated by reference in Condition 17 of License No. 29-09814-01;
(7) The failure on August 23, 1995, to perform physical radiation
surveys to ensure readings at roped-off boundaries do not exceed 2
millirem in an hour as required by ETI Radiation Safety Procedures,
Procedure No. ETI-1, Revision G, dated March 14, 1994, incorporated by
reference in Condition 17 of License No. 29-09814-01;
(8) The failure on August 23, 1995, to perform a survey after each
exposure to determine that the sealed source has been returned to the
shielded position as required by 10 CFR 34.43(b);
(9) The failure on July 12, 1995, to complete a shipping paper
prior to transporting licensed material outside the confines of the
licensee's plant as required by 10 CFR 71.5(a) and 49 CFR 177.817(a);
(10) The failure on July 12, 1995, to identify the activity or
transport index on the RADIOACTIVE label attached to a package
containing licensed material transported outside the confines of the
licensee's plant, as required by 10 CFR 71.5(a) and 49 CFR 172.403; and
(11) the failure on August 23, 1995, to block and brace packages
containing licensed material transported outside the confines of the
ETI facility, as required by 10 CFR 71.5(a) and 49 CFR 177.842(d).
The NRC staff performed a follow-up inspection of License No. 29-
09814-01 on March 14, 1996, to determine the Licensee's compliance with
NRC safety requirements. The staff concludes that the Licensee
deliberately falsified documents of radiographer examinations, given
during an annual eight hour refresher training course, in violation of
10 CFR 30.9 and 30.10. The responses to the 22 questions on the
examination, dated January 16, 1996, were identical in the examination
forms of the President of ETI and a radiographer. ETI Invoice No. 32478
and ETI Work Order No. 9512220007, however, document that on January
16, 1996, the radiographer was working at a jobsite in Brooklyn, New
York. The work order states that the radiographer arrived at the
Brooklyn jobsite at 6:00 a.m. and departed the Brooklyn jobsite at 2:00
p.m. The job-site is approximately a three-hour drive from the
Licensee's facility, at which the RSO stated that the training had been
given.
The Licensee has a poor enforcement history. Civil penalties have
been issued to ETI twice since 1987 for violations of NRC
requirements.1 Some of the violations identified during the
subject recent 1995 inspection were repetitive of violations that
formed the basis for the $7,500 civil penalty issued on September 17,
1992.2 The currently identified violation of directing an
unqualified employee to perform radiography is repetitive of a 1994
violation.3 Some of the violations listed in the 1992 action, and
to which the licensee admitted, were found to be in careless disregard
of NRC requirements, and thus willful.4
\1\ On July 24, 1987, a Notice of Violation (EA 87-079) was
issued citing 4 violations and a civil penalty of $6500 was
proposed, which was subsequently paid in full. On September 17,
1992, a Notice of Violation (EA 92-136) was issued citing 9
violations and a civil penalty of $7500 was proposed, which was
subsequently reduced to $5000 in light of financial considerations.
\2\ The 1992 and 1995 inspections both found (1) violations of
10 CFR 34.43(b) for failure to survey the entire circumference of
the radiographic exposure device, and (2) violations of 49 CFR
177.842(d), failure to block and brace the device in transport.
\3\ On July 20, 1994, the NRC issued a Notice of Violation to
the Licensee for permitting an individual to act as a radiographer's
assistant without having successfully completed a practical field
examination, in violation of 10 CFR 34.31(b). By letter dated August
26, 1994, the Licensee stated that its corrective action consisted
of administering the practical field examination to all assistant
radiographers and including the examination requirement in its
training procedures.
\4\ The letter transmitting EA 92-136 notes: ``* * * the
Radiation Safety Officer (RSO) at the facility was aware of the
actions needed to ensure compliance with requirements, but did not
take those necessary actions in a timely manner * * * with respect
to [certain violations] * * * the RSO indicated that he understood
the need for action to comply with the requirements, but just did
not get to completing those actions * * * * with respect to the
violation involving the movement of a radiographic device in an
unauthorized container, the RSO indicated that he understood the
requirement for an approved container, but believed that the
container fabricated for the transport was safe enough. These
failures to ensure that the licensed activities were conducted in
accordance with NRC requirements constitute careless disregard on
the part of the RSO and therefore are considered willful within the
context of the NRC enforcement policy.''
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III
Based on the above, the Licensee has violated numerous NRC
requirements, some willfully, and has failed to take appropriate
actions to prevent the recurrence of past violations. In particular,
the Licensee deliberately created inaccurate records, in violation of
10 CFR 30.9 and 30.10, and threatened a former employee with physical
harm, based on the belief that the former employee had cooperated with
an NRC investigation or inspection. Also, the Licensee deliberately
utilized an employee, with no prior radiography experience, to perform
radiography one day after he was hired, even though the individual had
not received the required training, and ETI deliberately falsified ETI
records representing that the employee was qualified to perform
radiography. The Commission must be able to rely on its Licensees to
provide complete and accurate information and to otherwise comply with
NRC requirements, and to refrain from conduct which could impede NRC
inspections or investigations of safety concerns. The Licensee,
however, through its President and its Radiation Safety Officer, Mr.
Himat Soni and Mr. Joseph Badiali, respectively, has demonstrated an
unwillingness to comply with NRC requirements. The actions of the
Licensee and its senior officials have raised serious doubt as to
whether the Licensee and its employees can be relied upon in the future
to comply with NRC requirements and to maintain complete and accurate
records of licensed activities.
Consequently, I lack the requisite reasonable assurance that the
Licensee's current operations can be conducted under License Nos. 29-
09814-01 and 29-09814-02 in compliance with the Commission's
requirements and that the health and safety of the public,
[[Page 15838]]
including the Licensee's employees, will be protected. Therefore, the
public, health, safety and interest require that License Nos. 29-09814-
01 and 29-09814-02 be suspended, pending further investigation.
Furthermore, pursuant to 10 CFR 2.202, I find that the significance of
the violations, and the willfulness of the Licensee's conduct, as
described above, are such that the public health, safety, and interest
require that this Order be immediately effective.
IV
Accordingly, pursuant to sections 81, 161b, 161i, 161o, 182 and 186
of the Atomic Energy Act of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202 and 10 CFR Part 30, it is hereby ordered,
effective immediately, that license Nos. 29-09814-01 and 29-09814-02
are suspended in accordance with the following terms, pending further
order:
A. All NRC-licensed material in the Licensee's possession shall be
placed in locked storage.
B. All activities under its licenses to use licensed material shall
be suspended; however, licensed material may be transferred to an
authorized recipient after providing written notice (telephonic
facsimile is acceptable) to and receiving acknowledgement from the NRC,
Region I, at least 72 hours prior to the transfer. The notice shall
include the time, date, and location of the proposed transfer,
identification of the materials to be transferred, and the name and
license number of the recipient. All other requirements of the licenses
remain in effect.
C. No NRC-licensed material shall be received while this order is
in effect.
D. All records related to licensed activities shall be maintained
in their original form and must not be removed or altered in any way.
The Regional Administrator, Region I, may, in writing, relax or
rescind this order upon demonstration by the Licensee of good cause.
V
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, within 20 days of the
date of this Order. Where good cause is shown, consideration will be
given to extending the time to request a hearing. A request for an
extension of time must be made in writing to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C.,
20555, and include a statement of good cause for the extension. The
answer may consent to this Order. Unless the answer consents to this
Order, the answer shall, in writing and under oath or affirmation,
specifically admit or deny each allegation or charge made in this order
and set forth the matters of fact and law on which the Licensee or
other person adversely affected relies and the reasons as to why the
Order should not have been issued. Any answer or request for a hearing
shall be submitted to the Secretary, U.S. Nuclear Regulatory
Commission, ATTN: Chief, Docketing and Services Section, Washington,
D.C. 20555. Copies of the hearing request also should be sent to the
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, D.C. 20555, to the Assistant General Counsel for Hearings
and Enforcement at the same address, to the Regional Administrator, NRC
Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406, and
to the Licensee if the hearing request is by a person other than the
Licensee. If a person other than the Licensee requests a hearing, that
person shall set forth with particularity the manner in which the
individual's interest is adversely affected by this Order and shall
address the criteria set forth in 10 CFR 2.714(d).
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held,
the issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any other
person adversely affected by this Order, may, in addition to demanding
a hearing, at the time the answer is filed or sooner, move the
presiding officer to set aside the immediate effectiveness of the Order
on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or a written approval of
an extension of time in which to request a hearing, the provisions
specified in Section IV above shall be final 20 days from the date of
this Order without further order or proceedings. If an extension of
time for requesting a hearing has been approved, the provisions
specified in Section IV shall be final when the extension expires if a
hearing request has not been received. An answer or a request for
hearing shall not stay the immediate effectiveness of this order.
Dated at Rockville, Maryland this 29th day of March 1996.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 96-8787 Filed 4-8-96; 8:45 am]
BILLING CODE 7590-01-P
