[Federal Register Volume 59, Number 193 (Thursday, October 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24758]


[[Page Unknown]]

[Federal Register: October 6, 1994]


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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-32190; License No. 49-27356-01, EA 94-131]

 

Western Industrial X-Ray Inspection Company, Inc., Evanston, 
Wyoming; Order to Transfer Material (Effective Immediately) and Order 
Revoking License

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, and due to expire on August 31, 1996, was 
suspended by NRC Order (EA 93-238) on June 16 1994.

II

    On June 16, 1994, the NRC issued an Order Suspending License 
(Immediately Effective) (Suspension Order) and Demand for Information 
to WIX. The Suspension Order was based on inspections and 
investigations that had identified numerous violations of NRC's 
radiation safety requirements, including some violations which were 
found to have recurred after being found in previous inspections and 
several which were determined to have been committed deliberately by 
WIX employees and by the President and Radiation Safety Officer (RSO) 
for WIX, Larry D. Wicks. Apparent violations were described in 
inspection reports 030-32190/93-01 and 030-32190/94-01 issued on May 
12, 1994. The violations were also described in the June 16, 1994 
Suspension Order. The Suspension Order required WIX to suspend its use 
of NRC-regulated material and to place it in safe storage pending 
further order. The Demand for Information required WIX to describe why, 
in light of the violations and managerial failures discussed in the 
Suspension Order, NRC License No. 49-27356-01 should not be revoked and 
also why an order should not be issued to Mr. Wicks prohibiting him 
from performing NRC-licensed activities.
    On June 17 and June 28, 1994, letters were submitted to the NRC on 
behalf of WIX by its attorney, John C. Phillips. These letters provided 
WIX's response to the violations and requested relaxation or rescission 
of the Suspension Order. In response to the violations, WIX admitted 
some of the violations, denied some of the violations, and denied that 
Larry D. Wicks had ever deliberately caused the Licensee to be in 
violation of NRC requirements or at any time provided materially false 
information to the NRC. In addition, the June 28, 1994 letter included 
a Corrective Measure Plan that described various actions taken by WIX 
to preclude a recurrence of the violations that led to the Suspension 
Order. Actions described in the responses include obtaining more alarm 
ratemeters, establishing a system for their system for their issuance 
and ensuring the current of their calibrations, designation of an 
Assistant RSO, and creation of additional records, along with 
statements assuring future compliance. The responses amount to 
assertions of being in compliance, that most of the violations were 
inconsequential and the public health and safety had not been 
jeopardized, and that future conduct will prevent violations. These 
responses were submitted as a basis for relaxing or rescinding the 
Suspension Order and did not provide an adequate or specific response 
to the Demand for Information which asked why the license should not be 
revoked. The NRC reviewed the information in these letters to determine 
whether WIX had provided sufficient justification for the NRC to relax 
or rescind the Suspension Order. On July 19, 1994, the NRC denied WIX's 
requests in writing, stating, ``Given the nature of the violations in 
this case, the NRC's concerns about the integrity of certain WIX 
personnel, and the licensee's failure to address adequately the 
fundamental problems identified in the Order, e.g., our significant 
concerns regarding the capability or willingness of Mr. Wicks and other 
WIX personnel to ensure compliance with NRC requirements, I find the 
mere promise in your submittals of future compliance with NRC 
requirements insufficient assurance at this time that WIX employees 
will conduct licensed activities in accordance with NRC requirements.''
    In its second report, OI concluded that four WIX employees, 
including the President, committed four deliberate violations. These 
violations have safety significance, such as failure to evaluate a 
potential overexposure, preparation of false reports concerning a 
potential overexposure, and failure to supervise radiography 
operations. The NRC remains concerned about the deliberate violations 
caused by WIX's President and RSO, especially as they pertain to a 
possible overexposure incident, and his other failures to properly 
direct the conduct of licensed activities in a safe manner. It is this 
failure to conduct licensed activities in a safe manner, coupled with 
questions as to the integrity of several employees, that cause the NRC 
to be concerned about public health and safety. In its response, WIX 
did not sufficiently demonstrate that the NRC could rely upon it to 
ensure that the public health and safety would be protected if 
radioactive materials were to be used in the future under License No. 
49-27356-01.

III

    The acts and omissions of WIX's President and RSO violated NRC 
requirements over an extended period of time. These violations 
jeopardized the public health and safety and, on that basis alone, 
represent a very significant regulatory concern. These violations 
demonstrate that the Licensee and its President are not willing or able 
to comply with the Commission's requirements to protect the public 
health and safety. As a result, I am also issuing an Order (EA 94-140) 
this date to the President and RSO of WIX prohibiting him from engaging 
in NRC-licensed activities (except as necessary to store and tranfer 
material).
    WIX's license has remained suspended since June 16, 1994. Several 
radiography exposure devices containing sealed radiation sources have 
remained in the Licensee's possession although the Licensee does not 
have authorization to use the material. Given the seriousness of the 
violations that occurred, and the NRC's order removing WIX's President 
and RSO, who is responsible for this material, I find that the public 
health, safety, and interest require the Licensee to transfer all NRC-
regulated material in its possession and that License No. 49-27356-01 
be revoked. Furthermore, in view of the nature of the violations and 
the deliberate misconduct described in both the June 16, 1994 
Suspension Order (EA 93-238) and the Order Prohibiting Involvement in 
NRC-licensed activities (EA 94-140) issued this date to Mr. Wicks, the 
Commission does not have reasonable assurance that the material will be 
safety stored and transferred during the time that it might take to 
litigate this Order and the removal Order (EA 94-140). Therefore, 
pursuant to 10 CFR 2.202, I find that the significance of the 
violations and deliberate misconduct described in the June 16, 1994 
Suspension Order (EA 93-238) and the Order (EA 94-140) to Mr. Wicks of 
this date, are such that the public health, safety, and interest 
require that the Order to Transfer Material part of this Order be 
immediately effective.

IV

    Accordingly, pursuant to sections 81, 161b, 161c, 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 Parts 30 and 34:
    A. It is hereby ordered, effective immediately, that:
    1. The licensee shall transfer all NRC-licensed material acquired 
or possessed under the authority of License No. 49-27356-01 within 20 
days of the date of this Order, either by returning the material to the 
manufacturer or transferring it to another person authorized to possess 
that material;
    2. Any sources that have not been leak tested within six months 
prior to the transfer shall be leak tested by a person authorized to do 
so, prior to transfer of the source;
    3. The Licensee shall notify Ms. Linda Kasner, NRC, Region IV, 
(817) 860-8213, by telephone at least two working days prior to the 
date(s) of transfer of radioactive material so that the NRC, may, if it 
elects, observe the transfer of the material; and
    4. The licensee shall, within 5 days after transfer of the 
material, certify in writing to the Regional Administrator, NRC Region 
IV, that all material has been properly transferred and provide the 
Regional Administrator copies of records of transfer required by 10 CFR 
30.51.
    5. The issuance of this Order does not otherwise alter the 
continued effectiveness of the Suspension Order.
    B. It is further ordered that: Following confirmation of the 
transfer of all NRC-licensed material currently possessed, as discussed 
above, License No. 49-27356-01 is revoked.
    The Director, Office of Enforcement, may, in writing, at any time 
prior to final agency action sustaining the revocation of License No. 
49-27356-01, relax or rescind this order on demonstration by the 
Licensee, in writing, 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 matter 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, D.C. 20555. 
Copies also shall 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 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 or her 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 Section 
IV.A of this Order on the ground that portion of 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 the order to 
transfer material set forth in section IV.A of this order.

    Dated at Rockville, Maryland this 27th day of September 1994.

    For the Nuclear Regulatory Commission.
[FR Doc. 94-24758 Filed 10-5-94; 8:45 am]
BILLING CODE 7590-01-M