[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]
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