IR 05000621/2007016
| ML20153E802 | |
| Person / Time | |
|---|---|
| Site: | 05000621, 03010856 |
| Issue date: | 02/24/1986 |
| From: | Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | CALUMET TESTING SERVICES, INC. |
| Shared Package | |
| ML20153E788 | List: |
| References | |
| EA-85-093, EA-85-93, NUDOCS 8602250159 | |
| Download: ML20153E802 (9) | |
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t UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of CALUMET TESTING SERVICES,
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Docket No. 030-10856 INCORPORATED
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License No. 13-16347-01 1945 N. Griffith Boulevard
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EA 85-93 Griffith, IN 46319
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ORDER IMPOSING CIVIL MONETARY PENALTIES I
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Calumet Testing Services, Incorporated, Griffith, IN (the licensee) is the holder of License No. 13-16347-01 issued by the Nuclear Regulatory Commission (the Commission /NRC) which authorizes the licensee to use byproduct material to conduct industrial radiography.
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An NRC safety inspection of the licensee's activities under the license was conducted June 21 through July 16, 1985. During the inspection, the NRC staff determined that the licensee had not conducted its activities in full compliance with NRC requirements. A written Notice of Violation and Proposed Imposition of Civil Penalties was served upon the licensee by letter dated September 9,1985..
The Notice stated the nature of the violations, the provisions of the Nuclear Regulatory Commission's requirements that the licensee had violated, and the cumulative amount of the proposed civil penalties. The base civil penalty was increased by 100 percent because of the licensee's prior poor performance and failure to implement effective corrective actions for similar problems. A response dated October 18, 1985 to the Notice of Violation and Proposed Imposition of Civil Penalties was received from the licensee.
0602250159 860224 IE LIC30 13-16347-01 PDR
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III After consideration of the licensee's response and the statements of fact, explanation, and arguments for remission or mitigation of the proposed civil penalties contained therein, as set forth in the Appendix to this Order, the Director, Office of Inspection and Enforcement has determined that the violations occurred as stated and the penalties proposed in the Notice of
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Violation and Proposed Imposition of Civil Penalties should be mitigated by Four Thousand Dollars ($4,000) based on the licensee's prompt identification and reporting of an overexposure.
IV In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2282, PL 96-295), and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:
The licensee pay' civil penalties in the cur.,L-tive amount of Twelve Thousand Dollars ($12,000) within thi't. ;<ys if the date of this Order, by check, draft, or money order, payable to the Treasurer of the United States and mailed to the Director, Office of Inspection and Enforcement, U. S. Nuclear Regulatory Commission, Washington, D.C.
20555.
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V
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The licensee may, within thirty days of the date of this Order, request a hearing.
A request for a hearing shall be addressed to the Director, Office of Inspection and Enforcement. A copy of the hearing request also shall be sent to the Executive Legal Director, U. S. Nuclear Regulatory Commission, Washington, D.C.
20555.
If a hearing is requested, the Commission will issue an Order designating the time and place of hearing.
If the licensee fails to request a hearing within thirty days of the date of this Order, the provisions of this Order shall be effective without further proceedings and, 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 violated NRC requirements as set forth in the Notice of Violation and Proposed Imposition.of Civil Penalties, and
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(b) whether, on the basis of such violations, this Order should be sustained.
FOR THE NUCLEAR REGULATORY COMMISSION
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Ja es M. Taylor, irector 0 fice of Inspe ion and Enforcement
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Dated at Bethesda, Maryland
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thisJd8A ay of February 1986 d
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APPENDIX EVALUATION AND CONCLUSION In a letter dated October 18, 1985 the licensee responded to the Notice of Violation and Proposed Imposition of Civil Penalties dated September 9,1985.
In its response,.the licensee admits certain violations occurred as described in the Notice, denies other violations, requests mitigation of the civil penalties and provides reasons why it believes that mitigation of the penalties is appropriate. Provided below are (1) a restatement of each violation, (2) the licensee's assertion regarding each violation, (3) NRC's response to each licensee assertion, (4) a summary of the licensee's arguments in support of mitigation of the proposed penalties, and (5) NRC's evaluation and conclusion.
I.
Restatement of Violations, Licensee Assertions, and NRC's Response A.
Restatement of Violation A 10 CFR 20.101(a) provides that no licensee shall possess, use, or transfer licensed material in such a manner as to cause any individual in a restricted area to receive in any period of one calendar quarter from radioactive material and other sources of radiation a total occupational dose in excess of 18.75 rems to the hands and forearms.
Contrary to the above, on June 14, 1985, during the second calendar quarter of 1985, a radiographer's assistant received a calculated hand dose of greater than 75 rems.
Licensee's Assertion The licensee does not agree that the radiographer's assistant received a hand dose in excess of regulatory limits.
However, based on time and distance measurements made during reenactments, the licensee does agree that 1.2 percent of the individual's hand (approximately 2 cm2 in surface area) may have received over 75 rems and less than 9 percent of the hand may have received over 18.75 rems. From these data the licensee concludes that because only parts of the hand received doses in excess of regulatory limits, it did not constitute a. violation. The licensee further asserts that even if the radiographer's assistant did receive a hand dose in excess of the regulatory limits, because only a small portion (i.e., 2 cm2) of his hand received greater than 75 rems, the severity level is more appropriately set at Severity Level III.
NRC Response The licensee's analysis assumes that 10 CFR 20.101(a) provides for averaging of extremity dose over the entire surface area of the exposed individual's hand. However, this assumption is erroneous because this section of 10 CFR Part 20 provides no basis to permit averaging the dose.
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Appendix
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The licensee admits'that an area of approximately-2 cm2 of the exposed individual's hand may have received at least 75 rems. The licensee further admits that an additional area of _approximately 14 cm2
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received greater than 18.75 rems. Therefore, the licensee violated
the provisions of 10 CFR 20.101(a)..
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Determination of the. severity level for the violation is based on the'
amount of dose received. As such, the determination of radiation dose
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is predicated on the radiation dose standards found in 10 CFR Part 20.
That a licensee employee received 75 rems to only a small portion of:
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his hand does not prevent.the violation from being appropriately categorized at a Severity Level II. Accordingly, no basis exists in
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the licensee's response for reducing the severity level of the violation.
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B.
Restatement of Violation B i
10 CFR 34.43(b) requires that a survey with a radiation survey i
instrument shall be made after 'each radiographic exposure. to determine that the sealed source has been returned to its shielded position.
The entire circumference of the radiographic exposure device shall be surveyed.
If the radiographic exposure device has a source guide tube, the survey shall include the guide tube.
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Contrary to the above, on June 14, 1985, aradiographer's$ssistant
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failed to perform a radiation survey after a radiographic exposure
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to determine that the sealed source had been returned to its shielded
position.
Licensee's Assertion
The licensee admits a survey was not made after each radiographic
I exposure and states the violation occurred because_ the radiographer's i
assistant made a personal decision not to make-a survey, contrary to
NRC requirements and the procedures of Calumet Testing Services,-
Incorporated (CTS).
NRC Response
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The licensee's assertion that the radiographer's assistant is responsible for the violation because he made a personal decision to
violate NRC rules and CTS procedures :is without merit. NRC holds the I
licensee responsible for violations committed by an employee even in i
the absence of a finding that management contributed to the violation.
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Atlantic Research Corporation, CLI-80-7,11 NRC 413 (1980). However,
management participation may be a consideration in determining the severity level of a violation in that the severity. level may_be r
increased where management is found to be involved. This factor was
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not used here in ' determining the severity level.
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R Appendix
C.
Restatement of Violation C 10 CFR 34.44 requires that whenever a radiographer's assistant uses radiographic exposure devices, sealed sources or related source handling tools, or conducts radiation surveys required by 34.43(b) to determine that the sealed source has returned to the shielded position after an exposure, he shall be under the personal supervision of a radiographer. The personal supervision shall include:
(a) the radiographer's personal presence at the site where the sealed sources are being used, (b) the ability of the radiographer to give imediate assistance if required, and (c) the radiographer's watching the assistant's performance of the operations referred to in this section.
Contrary to the above, on June 14, 1985, two radiographer's assistants performed three radiographic operations without the personal presence of a radiographer. As a result, a radiographer would not have been able to give imediate assistance if required and did not watch the assistants performing the operations.
Licensee' Assertion The licensee denies that radiographer's assistants were performing radiographic exposures without the personal presence of a radiographer and asserts that a radiographer was in a position to be of imediate assistance since a radiographer was on site and was working on the same boiler as the assistants. The licensee admits that the radiographer did not actually watch the assistants while they were making radiographic exposures.
NRC Response The regulation requires visual observation. Although a radiographer was present at the building site, he was making radiographic exposures-in another area and could not. observe two radiographer's assistants while they were making radiographic' exposures. As a result, the radiographer was not aware of any problem until after he was notified that one of the radiographer's assistants received an extremity overexposure.
It should be noted that when the radiographer's assistant discovered that the radiography source was exposed he did not imediately contact the radiographer.
Instead, accompanied by a second radiographer's assistant, he reentered the-restricted area, unlocked the exposure device and retracted the source to a proper shielded position.
If the radiographer had complied with the requirements of 10 CFR 34.44, he would have ensured that the radiographer's assistant did not approach the exposure device after an exposure without making a complete radiation survey, especially after it was discovered that the radioactive source was in an unshielded position. Accordingly, no basis has been provided in the licensee's response for withdrawal of this violatio '..
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Appendix
II. Licensee's Request for Mitigation The licensee offers eight reasons why it believes the proposed civil penalty should be mitigated.
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The event was 'promptly reported as it may have been an overexposure.
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The licensee cooperated with NRC requests.
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The NRC inspected two job sites and found no problem with the quality of training.
4.
The overexposure was not the result of improper training. Several examples are cited to support the claim that the radiographer's-assistant knew that surveys were required; but the individual made a personal decision not to make a survey.
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The event that occurred in June 1983 and resulted in a $4,000 civil penalty that the licensee paid on September 1, 1983 occurred as a result of not surveying and was not the result of insufficient supervision of the assistant.
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The radiographer's assistant did not experience any high degree of serious radiation injury as evidenced by examinations, blood tests, and chromosome studies.
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The licensee quotes the Enforcement Policy, page 8585 of the Federal
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Register, dated March 8, 1984 which states, "a civil penalty can be fully mitigated for a first offense in an area of concern or for an offense in an area in which no previous offense had occurred for a period of at least two years." The licensee also notes, "the two incidents were just eight hours shy of being two years apart."
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The licensee had to write off a significant amount in bad debts and expects this amount to be even higher in 1985.
The licensee stated,
"[a] large penalty would cause considerable hardship as we are still
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in a difficult economic environment."
NRC Evaluation The following evaluation will separately address each of the eight reasons set forth by the licensee in support of mitigation.
1.
The NRC agrees that the licensee promptly reported the overexposure (the day after the overexposure occurred).
However, in considering whether to reduce a civil penalty based on a licensee's prompt identification and reporting, the NRC Enforcement Policy, 10 CFR Part 2, Appendix C (1985),Section V.B.1 states that "[n]o consideration will be given to this factor if the licensee does not take immediate action to correct the problem upon discovery." The NRC's concern regarding this proviso was initially based on statements made by. the President,
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Calumet Testing Services, Incorporated at the July 8,1985 enforcement conference. The president stated that immediate corrective action was
limited to meeting with the radiographers and radiographer's assistants involved during which he emphasized the importance of following safety procedures and NRC regulations. The NRC considers such immediate corrective action to be adequate and we have consequently reduced the proposed civil penalty as described below in section III, NRC Conclusion.
2.
The NRC acknowledges that the licensee cooperated with NRC requests, i
However, corrective action is always required when there is a violation, and the licensee's compliance with NRC's request.that additional corrective action be initiated was an expected response.
Regarding the licensee's corrective. actions, our evaluation indicates that on the whole the corrective actions are only what NRC would expect.
In addition, training of personnel, modification of locks on
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radiographic exposure devices, and the program of disciplinary action i.
against employees who violate NRC regulations.and CTS procedures are
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corrective actions which were implemented only after the NRC emphasized the importance of such actions at the enforcement conference (more
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than three weeks after the overexposure occurred).
Under the enforcement policy a civil penalty may be reduced where a licensee's corrective actions are found to be unusually prompt and
extensive. However, in this case the licensee's corrective actions were neither prompt nor extensive. Accordingly, no adequate basis d
exists in the licensee's response for reducing the civil penalty amount.
l 3.
The NRC did not issue a citation for an inadequate training program in this case. However, two similhr incidents in the last two years
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i involving radiation overexposure to a radiographer's assistant would
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seem to indicate a weakness in the licensee's training program.
Further, that inspections of two of the licensee's job sites did not j
result in cited violations involving training does not necessarily demonstrate that training at other job sites or the-licensee's training
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program as a whole are adequate.
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The licensee was not cited for failure to have an adequate training 4.
program. The NRC agrees that the incident itself is not conclusive as j
to the adequacy of the licensee's training program. However, as stated above, two such similar incidents within a fairly short time period
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suggest inadequate training was a possible contributing factor.
5.
The NRC agrees that the principal cause of the 1983 overexposure was the failure to perform an adequate survey of_ the exposure device.
However, it should be noted that at the time the radiographer's.
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assistant was making the inadequate survey, the radiographer was inside
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the boiler and was not observing the assistant. Consequently, as in the present case, failure to adequately supervise the radiographer's i
assistant contributed to the violation. Therefore, the radiographer's
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Appendix
assistants' failures to perform surveys and the radiographers' failure to adequately supervise were contributing factors in both cases--thus the similarity.
6.
The NRC believes that any radiation dose in excess of regulatory limits is a matter of serious concern and does not rely on physical damage as a criterion for evaluating overexposures.
7.
The NRC Enforcement Policy provides that a civil penalty can be fully mitigated for an offense in an area in which no previous offense has occurred for a period of at least two years.
Conversely, the Policy provides for up to 100% escalation for poor perfonnance in.the area of concern. The NRC staff acknowledges that almost two years had elapsed since issuance of the last civil penalty to the licensee.
However, because the two year criterion is a guideline and because the 1983 violation was so similar to the present violation, the NRC considers the present violation to fit a situation of prior poor performance in the area of concern.
8.
It is not the NRC's intention that the economic impact of a civil penalty be such that it puts a licensee out of business. The NRC staff has reviewed the licensee's financial statements submitted with its October 18, 1985 response and is unable to conclude, from the information presented by the licensee, that payment of the civil penalty as reduced would create an undue hardship for the licensee.
III. NRC Conclusion The hRC staff has determined that all violations did occur as originally stated in the September 9,1985 Notice of Violation and Proposed Imposition of Civil Penalties. The licensee's October 18, 1985 response did not provide a sufficient basis for withdrawal of the violations. However, the NRC staff has concluded that a $4,000 reduction in the proposed base civil penalty is appropriate because the licensee promptly identified and reported the overexposure violation.
Therefore, the NRC staff has concluded that a
$12,000 civil penalty should be imposed.
This amount reflects 50% of the base civil penalty of $8,000 for prompt identification and reporting which was balanced against 100% escalation for prior poor performance.