[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15486]


[[Page Unknown]]

[Federal Register: June 27, 1994]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION
[Docket No. 030-32190; License No. 49-27356-01 EA 93-238]

 

Western Industrial X-Ray Inspection Company, Inc., Evanston, 
Wyoming; Order Suspending License (Effective Immediately) and Demand 
for Information

I

    Western Industrial X-Ray Inspection Company, Inc. (Licensee or WIX) 
is the holder of Byproduct Material License No. 49-27356-01 issued by 
the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 
CFR Parts 30 and 34. The license authorizes the Licensee to possess 
sealed sources of iridium-192 in various radiography devices for use in 
performing industrial radiography activities. The license, originally 
issued on August 12, 1991, is due to expire on August 31, 1996.

II

    In April 1993 and in January and March 1994, the NRC conducted 
inspections and investigations of Western Industrial X-Ray Inspection 
Company, Inc., at the company's offices in Evanston, Wyoming, and at 
temporary job sites near Granger, Wyoming. These inspections and 
investigations identified numerous violations of NRC's radiation safety 
requirements, including some violations which were found to have 
recurred after being found in previous inspections. These violations 
were described in inspection reports 030-32190/93-01 and 030-32190/94-
01 issued on May 12, 1994. In addition, based on the investigations 
conducted by the Office of Investigations (OI), several of the 
violations have been determined by the NRC to have been committed 
deliberately by Licensee employees.
    In a March 2, 1994, letter to the Licensee, the NRC described the 
apparent violations that had been identified as of that date and 
confirmed the arrangements for the Licensee to attend an enforcement 
conference in the NRC's Arlington, Texas office. The enforcement 
conference, which was transcribed, occurred on April 1, 1994. The 
Licensee was represented by Mr. Larry D. Wicks, who is the president 
and owner of WIX as well as the company's designated radiation safety 
officer (RSO).
    The most significant of the NRC's concerns, and many of the 
violations, are related to a July 31, 1993, incident involving a WIX 
radiographer and radiographer's assistant who were performing 
radiography on a pipeline near LaBarge, Wyoming. The incident involved 
a radiographic device containing a 37-curie, sealed iridium-192 source 
and resulted in a potentially significant radiation exposure to the 
radiographer's assistant.
    This incident was reviewed during the inspection and investigation 
that began in January 1994. The following information regarding this 
incident is based on joint interviews conducted by the inspector and 
investigator; on signed, sworn statements taken by the investigator 
during these interviews; and on statements made by Mr. Wicks at the 
April 1 enforcement conference. With the exception of certain 
statements made by Mr. Wicks at the enforcement conference, which are 
noted below, all other statements were made to the inspector and 
investigator during their joint interviews of WIX personnel.
    The radiographer admitted that he violated NRC requirements by not 
observing the assistant as she radiographed welds and moved equipment 
from one location to another (in a later statement, the radiographer 
said he was aware he was responsible for the assistant but not aware 
that he had to observer performing radiographic operations 100% of the 
time). The assistant admitted that she violated NRC requirements by not 
performing a radiation survey after each radiographic exposure and by 
not locking the sealed radioactive source in the radiography device 
prior to moving equipment to another weld. The assistant stated further 
that after moving the equipment to another weld she noticed her survey 
instrument was ``pegged,'' an that her self-reading pocket dosimeter 
was off-scale, both indications that the device's radioactive source 
had not been returned to its fully shielded position or had been 
jostled from its shielded position when the device was moved. The 
assistant stated that her alarm ratemeter, a protective device which is 
set to alarm in a radiation field of 500 millirem/hour, did not alarm 
but added that it was probably turned off. Both she and the 
radiographer stated that she immediately brought this incident to the 
radiographer's attention an that he ``cranked'' the source into the 
device and locked it, and that they stopped work for the day.
    Both the assistant and the radiographer stated that they prepared 
incident reports for their employer, Larry Wicks, the company president 
an RSO, and that the incident reports were false in that they falsely 
stated that the radiographer and the assistant were working together at 
the time of the incident and falsely stated that they had surveyed the 
device and locked the source in the device prior to its being moved. 
The Assistant claimed that she told Mr. Wicks at the time the reports 
were turned in that the incident reports were false, but Mr. Wicks 
denied this claim during interviews with the inspector and investigator 
and at the enforcement conference, stating that he did not know the 
incident reports were false until brought to his attention by the NRC.
    Mr. Wicks stated during the investigation and at the enforcement 
conference that after learning of the incident he sent the assistant's 
thermoluminescent dosimeter (TLD) in for immediate processing along 
with other TLDs worn by company personnel during the month of July 
1993. Mr. Wicks also stated that all of the TLDs were sent in the same 
package. However, the company that processes TLSs for WIX, Laudauer, 
Inc., stated, through its representative, to NRC personnel that while 
it had received TLDs from WIX for other employees for the month of July 
1993, it had no record of receiving a TLD for the assistant for the 
month of July 1993 and no record of receiving a request from Mr. Wicks 
for immediate processing of any TLDs sent in for that month. Exposure 
records mailed by Landauer to WIX and retained by WIX contain no 
information regarding the assistant's exposure for the month of July 
1993 (her exposure records for all other months are available). The 
assistant, whom Mr. Wicks placed on restricted duty pending a 
determination of their exposure, also told NRC personnel that she 
persisted in trying to obtain from Mr. Wicks her exposure record for 
the month of July and that Mr. Wicks eventually--about three weeks 
after the incident--told her that she had received 350 millirem.
    Mr. Wicks stated during the investigation, however, that he never 
provided the assistant an exposure estimate based on Landauer's 
processing of the TLD because he did not have such a number to give 
her. The only explanation he has offered for not pursuing the question 
of her July 1993 exposure is that he was very busy. Despite the 
occurrence of the following events, Mr. Wicks has stated that he was 
not reminded of the need to evaluate the assistant's exposure from the 
incident or for the month of July 1993: (1) Placing the assistant on 
restricted duty from the date of the incident (July 31, 1993) until she 
left his employ in September 1993; (2) receiving Landauer reports for 
July 1993 which contained no exposure records for the assistant even 
though, according to Mr. Wicks' statement, he had sent in her TLD for 
immediate emergency processing; (3) preparing a summary of the 
assistant's radiation exposure history for her employer, which included 
the period in question (July 1993); and (4) responding in the fall of 
1993 to a request from the NRC for the radiation exposure reports of 
terminated employees. In responding to the latter request, Mr. Wicks 
did not provide a report for the radiographer's assistant despite 
having provided one for her husband, whose termination date occurred 
five days after hers. As of the time of the inspection and 
investigation in January 1994, Mr. Wicks had not performed an adequate 
evaluation to determine the assistant's exposure resulting from the 
July 31, 1993 incident. After further requests from the NRC, Mr. Wicks 
submitted on March 8, 1994, an estimate of 6 rems for the assistant's 
whole body exposure and at the enforcement conference characterized 
that estimate as ``pure and simply a guess,'' noting that ``I had to 
have something to send you.''
    Based on its inspection and investigation of the July 31, 1993 
incident, as well as the information obtained during the enforcement 
conference, the NRC has concluded that the Licensee and its employees 
violated NRC requirements by failing to: (1) perform an evaluation of 
the assistant's radiation exposure to ensure compliance with NRC 
limits, as required by 10 CFR 20.201, and send the assistant's TLD in 
for immediate processing when her pocket dosimeter had gone off-scale, 
as required by 10 CFR 34.33(d); (2) check the alarm function on alarm 
ratemeters prior to the start of each shift, as required by 10 CFR 
34.33(f)(1); (3) perform a radiation survey of a radiography device 
following each exposure, as required by 10 CFR 34.43(b); (4) lock the 
sealed radioactive source in the device after each exposure, as 
required by 10 CFR 34.22(a); (5) ensure that radiographers supervise 
assistant radiographers who are performing radiographers operations, as 
required by 10 CFR 34.44, a repeat violation in that it occurred in 
July 1993, was discussed during the inspection in January 1994, and was 
found again in March 1994; (6) provide NRC a report of an individual's 
radiation exposure following the individual's termination of 
employment, as required by 10 CFR 20.408(b); and (7) ensure that alarm 
ratemeters worn by radiography personnel were calibrated at a one-year 
frequency, as required by 34.33(f)(4), a repeat violation in that it 
was found and discussed with Mr. Wicks following the inspection and 
investigation in April 1993, recurred in July 1993 and was found again 
in January 1994.
    Other violations found during the NRC's inspections and 
investigations, but unrelated to the July 1993 incident, include the 
Licensee's failure to: (1) ensure that pocket dosimeters worn by 
radiography personnel were checked for correct response to radiation at 
12-month intervals, as required by 10 CFR 34.33(c), a violation that 
occurred on January 18, 1994, 13 days after the inspector had informed 
the RSO that he should remove uncalibrated dosimeters from service; (2) 
perform and record quarterly audits of radiography personnel for all 
calendar quarters in 1992, as required by license condition; (3) 
maintain constant surveillance and immediate control of licensed 
material in March 1993, as required by 10 CFR 20.207; (4) submit to the 
NRC a quality assurance program for use of shipping containers, as 
required by 10 CFR 71.12(b), a repeat violation in that it was cited in 
1992 and had not been corrected by January 1994; and (5) leak test 
sealed sources prior to removing them from storage and transferring 
them to the manufacturer in April 1993 and December 1993, as required 
by license condition.
    The NRC has also concluded from its inspections and investigations 
that Mr. Wicks and employees of WIX violated the provisions of 10 CFR 
30.10, ``Deliberate Misconduct,'' a regulation which prohibits 
individuals from deliberately causing a licensee to be in noncompliance 
with NRC requirements and prohibits individuals from deliberately 
providing materially false information to the NRC or a licensee. 
Specifically, based on its review of the July 31, 1993 incident, its 
review of the OI findings, and its review of the enforcement conference 
transcript, the NRC has concluded that Mr. Wicks deliberately failed to 
perform an evaluation of the assistant's radiation exposure; that Mr. 
Wicks deliberately failed to send the assistant's TLD in for immediate 
processing; that the radiographer deliberately failed to watch an 
assistant perform radiography operations; and that the radiographer and 
assistant deliberately provided materially false information to the 
Licensee about the incident.
    Based on its review of violations that were unrelated to the July 
1993 incident, the NRC has concluded that Mr. Wicks deliberately failed 
to perform and record quarterly audits of radiography personnel in 
1992, because Mr. Wicks stated that he was aware of these requirements 
and his responsibility to comply with them but failed to do so. The NRC 
also has concluded that Mr. Wicks deliberately failed to ensure that 
alarm ratemeters used by radiography personnel in March, April and July 
1993 and January 1994 were calibrated at a one-year frequency, again 
because Mr. Wicks stated that he was aware of these requirements and 
his responsibility to comply with them but repeatedly failed to do so.

III

    Based on the above, it appears that Licensee employees, including 
the president and radiation safety officer, have engaged in deliberate 
misconduct by deliberately violating NRC requirements that are 
important to the protection of radiography personnel and the public and 
have failed to ensure compliance with numerous requirements that are 
important to the safe use of radiographic sources. Deliberate 
violations of the nature described above cannot and will not be 
tolerated by the NRC. Further, the history of numerous violations, 
including repetitive violations, and the failure to follow through on 
important safety issues, indicate that Mr. Wicks, who is the president 
and radiation safety officer, is either incapable or unwilling to 
ensure that the Licensee's radiography program is conducted in 
accordance with all NRC requirements.
    Consequently, I lack the requisite reasonable assurance that the 
Licensee's current operations can be conducted under License No. 49-
27356-01 in compliance with the Commission's requirements and that the 
health and safety of the public, including the Licensee's employees, 
will be protected. Therefore, the public health, safety, and interest 
require that License No. 49-27356-01 be suspended. Furthermore, 
pursuant to 10 CFR 2.202, I find that the significance of the 
violations and deliberate misconduct 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, 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 Parts 30 and 34, It is hereby 
ordered, effective immediately, that license no. 49-27356-01 is 
suspended pending further order.
    The Regional Administrator, Region IV, 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. 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 Service Section, 
Washington, DC 20555. Copies of the hearing request also should be sent 
to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, to the Assistant General Counsel for 
Hearings and Enforcement at the same address, to the Regional 
Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, 
Arlington, Texas 76011, 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 his 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, the provisions specified 
in Section IV above shall be final 20 days from the date of this Order 
without further order or proceedings. An answer or a request for 
hearing shall not stay the immediate effectiveness of this order.

VI

    In addition to issuance of this Order Suspending License No. 49-
27356-01, the Commission requires further information from the Licensee 
in order to determine whether the Commission can have reasonable 
assurance that in the future the Licensee will conduct its activities 
in accordance with the Commission's requirements or, lacking such 
assurance, whether the Commission should proceed to revoke the license.
    Accordingly, pursuant to sections 161c, 161o, 182 and 186 of the 
Atomic Energy Act of 1954, as amended, and the Commission's 
requirements in 10 CFR 2.204 and 10 CFR 30.32(b), in order for the 
Commission to determine whether License No. 49-27356-01 should be 
revoked, or other enforcement action taken to ensure compliance with 
NRC regulatory requirements, the Licensee is required to submit to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, within 20 days of the date of this Order and 
Demand for Information, the following information, in writing and under 
oath or affirmation:
    A. State way, in light of the violations and managerial failures 
discussed in II and III above, NRC License No. 49-27356-01 should not 
be revoked.
    B. State why, in light of the facts described above, an order 
should not be issued to Mr. Wicks as an individual prohibiting Mr. 
Wicks from performing NRC-licensed activities. In addition, if an order 
is not issued to prohibit Mr. Wicks from performing NRC-licensed 
activities, then why should the NRC have confidence Mr. Wicks will 
comply with Commission requirements.
    Copies also shall be sent to the Assistant General Counsel for 
Hearings and Enforcement at the same address, and to the Regional 
Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, 
Arlington, Texas 76011-8064.
    After reviewing your response, the NRC will determine whether 
further action is necessary to ensure compliance with regulatory 
requirements.

    Dated at Rockville, Maryland this 16th day of June 1994.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 94-15486 Filed 6-24-94; 8:45 am]
BILLING CODE 7590-01-M