[Federal Register Volume 62, Number 106 (Tuesday, June 3, 1997)]
[Notices]
[Pages 30346-30348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14394]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-30691 License No. 35-26953-01 EA 96-502]
In the Matter of Barnett Industrial X-Ray, Inc., Stillwater, OK;
Order Imposing Civil Monetary Penalty
I
Barnett Industrial X-Ray, Inc., (BIX or Licensee) is the holder of
Materials License No. 35-26953-01 issued by the Nuclear Regulatory
Commission (NRC or Commission) on December 28, 1988, and last renewed
on March 21, 1996. The license authorizes the Licensee to possess
sealed radioactive sources for use in conducting industrial radiography
activities in accordance with the conditions specified therein.
II
An inspection and investigation of the Licensee's activities was
conducted October 3, 1996, through December 9, 1996, in response to a
radiography incident which the Licensee reported to the NRC. The
results of this inspection and investigation indicated that the
Licensee had not conducted its activities in full compliance with NRC
requirements. A written Notice of Violation and Proposed Imposition of
Civil Penalty (notice) was served upon the Licensee by letter dated
February 24, 1997. 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 a letter dated March 11,
1997. In its
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response, the Licensee admitted the violations, but requested that the
civil penalty be remitted based on the circumstances of this case (see
Appendix).
III
After consideration of the Licensee's response and the arguments
for mitigation contained therein, the NRC staff has determined, as set
forth in the Appendix to this Order, that the penalty proposed for the
violations designated in the Notice 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 $4,000 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 Mr. 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:
Whether on the basis of the violations admitted by the Licensee,
this Order should be sustained.
Dated at Rockville, Maryland this 23rd day of May 1997.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
Appendix
Evaluation and Conclusions
On February 24, 1997, a Notice of Violation and Proposed
Imposition of Civil Penalty (Notice) was issued for violations
identified during an NRC inspection and investigation. Barnett
Industrial X-Ray, Inc., (BIX or Licensee) responded to the Notice on
March 11, 1997. BIX admitted the violations, but requested that the
civil penalty be remitted based on the circumstances of this case.
The NRC's evaluation of the Licensee's request and conclusions
follow:
Summary of Licensee's Request for Mitigation
BIX stated that the employees who committed the violations were
amply trained in radiation safety as well as proper radiography
techniques and were audited by BIX more often than required by NRC
regulations. BIX further stated that it feels the ``two men in
question took it upon themselves to disregard what they knew to be
right and legal.'' BIX stated that 50 percent responsibility on the
part of the company, as the penalty implies,1 is
inequitable, and requested that the penalty be remitted in light of
the circumstances of the case and BIX's actions in responding to and
reporting the incident.
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\1\ The proposed penalty was one half of the base value for a
Severity Level II problem.
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NRC Evaluation of Licensee's Request for Mitigation
The NRC recognizes that BIX's employees were fully trained and
audited in accordance with NRC requirements. The NRC's Enforcement
Policy, however, does not allow mitigation of a civil penalty for
that reason because training and auditing are required by NRC
regulations. While the NRC acknowledges that Licensee employees may
have been audited more frequently than what is required by NRC
requirements, it appears that such frequency was not sufficient to
prevent the violations described in the Notice. NRC regulations set
forth minimum auditing requirements. It is BIX's responsibility to
control its activities, including auditing as necessary to ensure
compliance. In that regard, it is noteworthy that BIX stated, in its
March 11, 1997 response to the Notice, that it has ``increased the
number of jobsite audits by 100% per radiographic crew.''
As to BIX's statement that the radiographers disregarded
regulatory requirements, the NRC considered the radiographers'
conduct in its enforcement decision. Specifically, on April 15,
1997, the NRC issued a Confirmatory Order to the radiographer
prohibiting him from engaging in NRC-licensed activities for a
period of three years, and a letter to the assistant radiographer
reminding him that similar misconduct in the future may lead to
significant enforcement action against him.
Nevertheless, the radiographers' conduct on October 3, 1996,
does not relieve BIX of its responsibility as a licensee of the
Commission. As noted below, the Commission has left no doubt that
licensees are responsible for violations of NRC requirements
regardless of whether they occurred as a result of negligence or
willful misconduct. BIX's argument that it should not be held fully
responsible for the actions of its employees is contrary to NRC
requirements, the Enforcement Policy, and past enforcement actions.
10 CFR 34.2, defines Radiographer as ``any individual who
performs or who, in attendance at the site where the sealed source
or sources are being used, personally supervises radiographic
operations and who is responsible to the licensee for assuring
compliance with the requirements of the Commission's regulations and
the conditions of the license.'' [Emphasis added]
Section VI.A. of the Enforcement Policy states, in part, that
``licensees are not ordinarily cited for violations resulting from
matters not within their control, such as equipment failures that
were not avoidable by reasonable licensee quality assurance measures
or management controls. Generally, however, licensees are held
responsible for the acts of their employees.''
The Commission formally considered 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.
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.'' Therefore, the
Licensee's understanding of its responsibility (i.e., 50 percent
responsibility on the part of BIX) is incorrect. The NRC holds its
licensees 100 percent responsible for licensed activities. To hold
otherwise, would mean that BIX improperly transferred control of
licensed material to its employees.
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 the licensee and, therefore, all violations are caused
by employees. A licensee obtains the benefits of good employee
performance and suffers the consequences of poor employee
performance. Not holding the licensee responsible for the actions of
its employees, whether such actions result from negligence or
willful
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misconduct, is tantamount to not holding the licensee responsible
for the use or possession of licensed material. If the NRC adopted
this position, there would be less incentive for licensees to
monitor their own activities to assure compliance because licensees
could attribute noncompliance to employee negligence or misconduct.
With regard to BIX's argument that its actions in responding to
and reporting the incident should be considered, the NRC notes that
BIX's actions were considered in proposing the civil penalty. In
fact, as stated in the NRC's February 24, 1997 letter, BIX's prompt
voluntary reporting of the incident to the NRC and its prompt and
comprehensive corrective actions formed the basis for proposing a
civil penalty limited to one-half of the base value for a Severity
Level II problem. Thus, the NRC believes that the circumstances of
this case were appropriately considered in determining the proposed
penalty amount.
NRC Conclusion
The NRC rejects BIX's arguments that it should not be held fully
responsible for the violations, and believes that BIX's actions in
responding to and reporting the incident were appropriately
considered in determining the proposed penalty amount. The NRC
concludes, therefore, that the Licensee has not provided adequate
justification for a reduction or remission of the proposed civil
penalty. Consequently, the proposed civil penalty in the amount of
$4,000 should be imposed by order.
[FR Doc. 97-14394 Filed 6-2-97; 8:45 am]
BILLING CODE 7590-01-P
