[Federal Register Volume 61, Number 50 (Wednesday, March 13, 1996)]
[Notices]
[Pages 10387-10389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5993]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-32202; License No. 11-27316-01; EA 95-148]
Diamond H Testing Company; Pocatello, Idaho; Order Imposing Civil
Monetary Penalty
I
Diamond H Testing Company (DHT, Licensee) is the holder of NRC
Materials License No. 11-27316-01 issued by the Nuclear Regulatory
Commission (NRC or Commission). The license authorizes the Licensee to
possess sealed radioactive sources and to utilize those sources to
conduct industrial radiography in accordance with the conditions
specified therein.
II
An inspection of the Licensee's activities was conducted June 16
through July 12, 1995, following the Licensee's report of an incident
that occurred during radiography activities in Hawaii. The results of
this inspection, documented in a report issued on September 11, 1995,
indicated that the Licensee had not conducted its activities in full
compliance with NRC requirements. A predecisional enforcement
conference was conducted on September 26, 1995, in the NRC's Arlington,
Texas, office. A written Notice of Violation and Proposed Imposition of
Civil Penalty (Notice) in the amount of $8,000 was served upon the
Licensee by letter dated October 25, 1995. The Notice described the
nature of the violations, the provisions of the NRC's requirements that
the Licensee had violated, and the amount of the civil penalty proposed
for the violations.
The Licensee responded to the Notice in two letters both dated
November 15, 1995 (Reply to a Notice of Violation and Answer to a
Notice of Violation). In its responses, the Licensee admitted that
portions of the regulations were violated, but denied that it should be
held responsible for the violations because they resulted from
independent decisions made by one of its radiographers, and stated that
certain factors warranted mitigation of the proposed civil penalty.
III
After consideration of the Licensee's response and the statements
of fact, explanation, and argument for mitigation contained therein,
the NRC staff has determined, as set forth in the Appendix to this
Order, that the violations occurred as described in the Notice, that
the Licensee is fully responsible for the violations committed by its
radiographer, and that the penalty proposed for the violations
designated in the Notice should be mitigated by $3,000. Thus, a civil
penalty in the amount of $5,000 should be imposed.
IV
In view of the foregoing and pursuant to Section 234 of the Atomic
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205,
it is hereby ordered that:
The Licensee pay a civil penalty in the amount of $5,000 within 30
days of the date of this Order, by check, draft, money order, or
electronic transfer, payable to the Treasurer of the United States and
mailed to James Lieberman, Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, One White Flint North, 11555 Rockville
Pike, Rockville, MD 20852-2738.
V
The Licensee may request a hearing within 30 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 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. A request for a hearing
should be clearly marked as a ``Request for an Enforcement Hearing''
and shall be addressed to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission Washington, D.C. 20555, with a copy to
the Commission's Document Control Desk, Washington, D.C. 20555. 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.
If a hearing is requested, the Commission will issue an Order
designating the time and place of the hearing. If the Licensee fails to
request a hearing within 30 days of the date of this Order (or if
written approval of an extension of time in which to request a hearing
has not been granted), the provisions of this Order shall be effective
without further proceedings. If payment has not been made by that time,
the matter may be referred to the Attorney General for collection.
In the event the Licensee requests a hearing as provided above, the
issues to be considered at such hearing shall be:
(a) Whether the Licensee was in violation of the Commission's
requirements as set forth in Section I of the Notice referenced in
Section II above, and
[[Page 10388]]
(b) Whether, on the basis of such violations, this Order should be
sustained.
For the Nuclear Regulatory Commission.
Dated at Rockville, Maryland, this 5th day of March 1996.
James Lieberman,
Director, Office of Enforcement.
Appendix--Evaluation and Conclusions
On October 25, 1995, a Notice of Violation and Proposed
Imposition of Civil Penalty (Notice) in the amount of $8,000 was
issued to Diamond H Testing Company (DHT or Licensee) for violations
identified during an NRC inspection. The Licensee responded to the
Notice in two letters both dated November 15, 1995. The Licensee
admitted that portions of the regulations were violated, but denied
that it should be held responsible for the violations because they
resulted from independent decisions made by one of its
radiographers, and stated that certain factors warranted mitigation
of the proposed civil penalty.
Restatement of Violations I.A, I.B, and I.C
A. 10 CFR 34.22(a) requires, in part, that, during radiographic
operations, the sealed source assembly be secured in the shielded
position each time the source is returned to that position.
Contrary to the above, on two occasions on June 14, 1995, during
radiographic operations at the Hawaiian Electric Company Kahe Unit 5
Power Plant, a licensee radiographer did not secure the sealed
source assembly in the shielded position after returning the source
to that position. (01012)
B. 10 CFR 34.33(a) requires that the licensee not permit any
individual to act as a radiographer or a radiographer's assistant
unless, at all times during radiographic operations, the individual
wears a direct-reading pocket dosimeter, an alarm ratemeter, and
either a film badge or a thermoluminescent dosimeter.
Contrary to the above, on June 14, 1995, during radiographic
operations at the Hawaiian Electric Company Kahe Unit 5 Power Plant,
a licensee radiographer did not wear an alarm ratemeter while
conducting radiographic operations. (01022)
C. 10 CFR 34.43(b) requires, in part, the licensee to ensure
that a survey with a calibrated and operable radiation survey
instrument is made after each radiographic exposure to determine
that the sealed source has been returned to its shielded position.
The survey must include the entire circumference of the radiographic
exposure device and any source guide tube.
Contrary to the above, on June 14, 1995, during radiographic
operations at the Hawaiian Electric Company Kahe Unit 5 Power Plant,
a licensee radiographer did not perform an adequate survey after a
radiographic exposure to determine that the sealed source had been
returned to its shielded position in that the survey only included a
portion of the source guide tube. (01032)
These violations represent a Severity Level II problem
(Supplement VI). Civil Penalty--$8,000
Summary of Licensee's Response to Violations I.A, I.B, and I.C
The Licensee argued that there are several parts to each of the
cited requirements for the above violations and that only one part
of each requirement was violated. In addition, the Licensee denied
that it should be held responsible for the violations because they
resulted from independent decisions made by one of its
radiographers.
DHT did not admit responsibility for the violations, all of
which DHT asserts resulted from the independent actions of the same
radiographer who, DHT states, was experienced and appropriately
trained. DHT also noted that the NRC found no negligence on DHT's
part with respect to its radiation safety program or training of
employees.
NRC Evaluation of the Licensee's Response to Violations I.A, I.B,
and I.C
The sections of 10 CFR Part 34 cited in the Notice set forth a
number of requirements, and, in some cases, more than one
requirement is contained in the same subsection or paragraph. As an
NRC licensee, DHT is required to comply with each and every
requirement in every instance in which a requirement applies. In
this case, DHT failed to ensure that: (1) The sealed source was
secured in the camera, (2) an adequate survey was performed, and (3)
an alarm ratemeter was worn during radiographic operations; and the
Licensee did not dispute the fact that these violations occurred.
Therefore, the NRC concludes that the violations occurred as stated.
The NRC strongly disagrees with, and is concerned about, DHT's
failure to accept responsibility for the violations. The Commission
resolved the responsibility issue between a licensee and its
employees in its decision concerning the Atlantic Research
Corporation case, CLI-80-7, dated March 14, 1980, a copy of which is
enclosed. In that case, the Commission stated, in part, that ``a
division of responsibility between a licensee and its employees has
no place in the NRC regulatory regime which is designed to implement
our obligation to provide adequate protection to the health and
safety of the public in the commercial nuclear field.''
The NRC does not specifically license the management or the
employees of a company; rather, the NRC licenses the entity. The
licensee uses, and is responsible for the possession of, licensed
material. The licensee is the entity that hires, trains, and
supervises the employees. All licensed activities are carried out by
employees of licensees and, therefore, all violations are committed
by employees of licensees. The licensee obtains the benefits of the
employees good performance and suffers the consequences of their
poor performance. Not holding the licensee responsible for the
action of its employees, whether negligent or willful, is tantamount
to saying that the licensee is not responsible for the use or
possession of licensed material. If the NRC accepted DHT's position:
(1) The NRC would have little ability to ensure its requirements on
licensees were met and the public health and safety were protected;
and (2) there would be little incentive for licensees to monitor
their activities to assure compliance. Therefore, the NRC holds
licensees responsible for the actions of their employees (``General
Statement of Policy and Procedure for NRC Enforcement Actions''
(Enforcement Policy), NUREG-1600, Section VI.A). With regard to the
DHT's argument that the NRC found no negligence on DHT's part and
found its radiation safety and training programs adequate, the NRC
considers this irrelevant to whether a violation occurred. As to
civil penalties, Section VI.B of the Enforcement Policy provides
that ``the lack of management involvement may not be cause to
mitigate a civil penalty.''
Summary of the Licensee's Request for Mitigation
The Licensee offered numerous arguments for mitigation of the
proposed penalty. Below is a summary listing of the Licensee's
arguments that are related to its request for mitigation, some of
which have been consolidated. The NRC's evaluation follows each
argument.
1. DHT argued that it should be given credit for identifying the
violations, in accordance with Section VI.B.2 of the NRC Enforcement
Policy (Policy).
NRC Evaluation
DHT correctly notes that credit may be given for identification
through an event. The NRC agrees that the licensee responded
promptly and thoroughly to the event, and that the licensee's
investigation was important in determining the actual circumstances
that resulted in the event. However, the intent of this provision is
to allow credit only in situations where a licensee's investigation
following an event uncovers violations and problems that were not
apparent (for example, where a licensee uncovers programmatic
weaknesses in procedures or training or design of equipment and
takes action to correct those in addition to taking action to
correct the direct causes of the event).
The Policy notes that ``ease of discovery'' and ``licensee self-
monitoring effort'' are two of the factors that will be considered.
In the case at hand, the NRC believes that the violations that
resulted in the incident were easily discovered and were not
identified as a result from a DHT self-monitoring effort, such as an
audit or a program review. The overriding Policy principle in this
case is to emphasize the importance of preventing events that
threaten the safety of employees or members of the public. After
considering the guidance in Section VI.B.2.b and in particular sub
paragraph (iv) the NRC concludes that the Licensee did not provide
an adequate basis for mitigating the civil penalty based on DHT's
identification.
2. DHT argued that the violations do not appear to fit any of
the examples of Severity Level II violations in Supplement VI, and
that they appear to fit Example C.7 in Supplement VI (``A breakdown
in the control of licensed activities involving a number of
violations . . .''). The Licensee argued therefore that the
violations should have been classified at Severity Level III.
[[Page 10389]]
NRC Evaluation
As noted in Section IV of the Policy, the examples in the
supplements are neither exhaustive nor controlling. The NRC noted in
the letter proposing the civil penalty that each of the violations
that formed the basis for the civil penalty could have been
classified at Severity Level III (Supplement VI, C.8) and,
therefore, could have been assessed separate penalties. Factoring in
the significance of the violations, their relationship to a single
event, and the involved willfulness on the part of the radiographer
with respect to at least one of the violations, the NRC utilized its
discretion to consider the violations collectively and to treat them
at the next highest severity level, Severity Level II.
3. DHT argued that compliance was achieved in a major portion of
all three of the regulations, substantiating that the radiographer
had knowledge of the requirements and was not operating under a
total disregard for the safety requirements, but rather under a
potentially significant lack of attention or carelessness toward
licensed activities. In addition, DHT contends that the violations
appear to fit the criteria in Section VII.B.1.(d)(iii) for
enforcement discretion because the violations appeared to be an
isolated act of an employee without management involvement.
NRC Evaluation
The NRC agrees with DHT's views concerning the radiographer's
conduct. However, the Licensee's argument is not applicable with
regard to mitigation of the civil penalty. As to DHT's contention
that the violations appear to fit the criteria in Section
VII.B.1.(d)(iii), the NRC disagrees with the Licensee because
Section VII.B.1.(d)(iii) concerns licensee-identified Severity Level
IV violations, not Severity Level II violations. Moreover, a
radiographer, for purpose of the Enforcement Policy, is not a ``low-
level individual.'' Therefore, enforcement discretion based on
Section VII.B.1. does not apply to this case.
4. DHT cited several corrective actions which went beyond those
described at the predecisional enforcement conference and therefore
were not considered in the decision to propose a civil penalty. The
additional corrective actions cited by DHT included 40-hour (versus
8-hour) refresher training for all radiography personnel who have
been with the company for more than 1 year and are due for annual
refresher training.
NRC Evaluation
These corrective actions were taken by the Licensee after the
conference and were not factored into the decision-making process.
Although the NRC gave the Licensee credit for its corrective actions
in determining the proposed civil penalty amount, the NRC considers
these additional corrective actions noteworthy because they go
beyond what most small radiography licensees commit to and are
somewhat beyond our expectations, given the circumstances of this
case. Therefore, the NRC believes that discretion should be utilized
to mitigate the proposed civil penalty by $3,000.
NRC Conclusion
The NRC has considered all of the arguments the Licensee made
and concluded that the violations occurred as stated in the original
Notice and that they were appropriately classified as a Severity
Level II problem. However, given the extensive corrective actions
committed to by this Licensee, particularly the additional training
of its radiography personnel, the NRC has determined that a basis
exists for exercising discretion to reduce the proposed penalty by
$3,000. Consequently, a civil penalty in the amount of $5,000 should
be imposed.
EVALUATION OF VIOLATIONS NOT ASSESSED A CIVIL PENALTY
Of the violations not assessed a civil penalty, Diamond H
Testing Company (DHT or Licensee) neither admitted nor denied
Violations II.A and Violation II.B. However, the Licensee again
argued that the violations were the result of independent actions by
its radiographer. In addition, the Licensee questioned the validity
of citing 10 CFR 20.1801 with regard to Violation II.B.
Restatement of Violation II.B
B. 10 CFR 20.1801 requires that the licensee secure from
unauthorized removal or access licensed materials that are stored in
unrestricted areas. 10 CFR 20.1802 requires that the licensee
control and maintain constant surveillance of licensed material that
is in an unrestricted area and that is not in storage. As defined in
10 CFR 20.1003, unrestricted area means an area, access to which is
neither limited nor controlled by the licensee.
Contrary to the above, during an 8 to 10 minute period between
approximately 9:45 p.m. and 10:00 p.m. on June 14, 1995, the
licensee did not secure from unauthorized removal or limit access to
a 48.2 curie iridium-192 sealed source in a Gamma Century exposure
device located on the 9th floor of the Hawaiian Electric Company
Kahe Unit 5 Power Plant, an unrestricted area, nor did the licensee
control and maintain constant surveillance of this licensed
material. (03014)
This is a Severity Level IV violation (Supplement IV).
Summary of Licensee's Response to Violation II.B
The Licensee questioned the validity of including 10 CFR 20.1801
as applying to the circumstances in question. The Licensee stated
that ``It [the exposure device] had been left for a period of 8 to
10 minutes when the radiographer went to notify the RSO [radiation
safety officer] of the situation.'' DHT's position is that 10 CFR
20.1801, which was cited in conjunction with 10 CFR 20.1802, should
not apply because the radiography camera was not ``stored'' at the
field site location.
NRC Evaluation of Licensee's Response
The Licensee admits that the camera was left in an unrestricted
area and neither secured the material from unauthorized removal nor
maintained constant surveillance of the licensed material.
Therefore, while the NRC agrees with DHT that 10 CFR 20.1801 may not
have applied, the NRC concludes that Licensee failed to comply with
these requirements.
NRC Conclusion
Based on the above, the NRC concludes that the licensee has not
provided an adequate basis for withdrawal of the Violation II.B.
Therefore, the Violation II.B occurred as stated in the Notice.
[FR Doc. 96-5993 Filed 3-12-96; 8:45 am]
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