ML20035A059

Order Imposing Civil Monetary Penalty in Amount of $8,000 for Violation Noted During Insp on 921028.Evaluation & Conclusion Encl

ML20035A059
Person / Time
Site:	15000030
Issue date:	03/22/1993
From:	Thompson H NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	WESTERN TECHNOLOGIES, INC.
Shared Package
ML20035A058	List: ML20035A057 ML20035A059
References
EA-92-216, NUDOCS 9303240014
Download: ML20035A059 (8)

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UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of

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Docket 150-00030 WESTERN TECHNOLOGIES, INC.

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General License

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Phoenix, Arizona

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EA 92-216 i

ORDER IMPOSING CIVIL MONETARY PENALTY f

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On October 28, 1992, Western Technologies, Inc. (WTI) conducted radiography activities pursuant to the general license authorized 6

by the Nuclear Regulatory Commission (NRC or Commission) in 10 l

CFR 150.20.

The general license authorizes the performance of radiography in accordance with the terms and conditions specified i

in a specific license issued by an Agreement State and with the

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1 NRC regulations listed in 10 CFR 150.20(b).

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i An inspection of WTI activities in NRC jurisdiction was conducted I

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on October 28, 1992, at White Sands Missile Range in New Mexico.

I The results of this inspection indicated that WTI had not j

i conducted its activities in full compliance with NRC f

requirements.

A written Notice of Violation and Proposed j

Imposition of Civil Penalty (Notice) was served upon WTI by

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letter dated December 28, 1992.

The Notice described the nature

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WTI had violated, and the amount of.the civil penalty proposed f

t for one of the violations.

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9303240014 930322 PDR 'STPRG ESCAZ PDR i

{ WTI responded to the Notice in a letter dated January 26, 1993.

f In its response, WTI admitted the violation which resulted in the proposed civil penalty, but requested full mitigation for reasons that are summarized in the Appendix to this Order.

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After consideration of WTI's response and the statements of fact, j

explanation, and argument for mitigation contained therein, the NRC staff has determined, as set forth in the Appendix to this Order, that the violation occurred as stated and that the penalty proposed for the violation designated in the Notice should be i

imposed.

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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 l

10 CFR 2.205, IT IS HEREBY ORDERED THAT:

WTI pay a civil penalty in the amount of $8,000 within 30 I

days of the date of this Order, by check, draft, money order, or electronic transfer, payable to the Treasurer of f

the United States and mailed to the Director, office of

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I Enforcement, U.S.

Nuclear Regulatory Commission, ATTN:

Document Control Desk, Washington, D.C.

20555.

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WTI may request a hearing within 30 days of the date of this i

Order.

A request for a hearing should be clearly marked as a i

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" Request for an Enforcement Hearing," and shall be addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, ATTN:

Document Control Desk, Washington, D.C.

20555.

I Copies also shall be sent to the Assistant General Counsel for i

Hearings and Enforcement at the same address and to the Regional

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Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, I

Arlington, Texas 76011.

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l If a hearing is requested, the Commission will issue an Order designating the time and place of the hearing.

If WTI fails to request a hearing within 30 days of the date of this Order, the provisions of this Order shall be effective without further proceedings.

If payment has not been made by that time, the i

matter may be referred to the Attorney General for collection.

In the event WTI requests a hearing as provided above, the issue f

to be considered at such hearing shall be:

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-4 Whether, on the basis of the violation admitted by WTI, this Order should be sustained.

FOR THE NUCLEAR REGULATORY COMMISSION

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Thompso, J D

ty Executi e ir tor for Nuclear Mate i.. Safety, Safeguards and Operations Support Dated at Rockville, Maryland thisjf d day of March 1993 I

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I APPENDIX i

EVALUATION AND CONCLUSION I

On December 28, 1992, a Notice of Violation and Proposed l

Imposition of Civil Penalty (Notice) was issued for violations identified during an NRC inspection.

Western Technologies, Inc.,

(WTI) responded.to the Notice on January 26, 1993.

WTI admitted

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the violation that resulted in the proposed civil penalty, but requested full mitigation.

The NRC's evaluation and conclusion regarding WTI's request are as follows:

i Restatement of Violation f

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Violation Assessed a Civil Penalty 10 CFR 34.33(a) requires, in part, that:

(1) a licensee not

'l' 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.n i

film badge or a thermoluminescent dosimeter (TLD);.and (2) pocket dosimeters be recharged at the start of each shift.

Contrary to the above, on October 28, 1992, two radiographers employed by Western Technologies, Inc.

l (Licensee), did not wear alarm ratemeters-while conducting radiographic operations at the White Sands Missile Range,

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New Mexico, and did not recharge their direct reading pocket i

dosimeters at the start of the shift.

This is a Severity Level II violation (Supplement VI).

l Civil Penalty - $8,000.

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'I Summary of WTI's Recuest for Mitication In its January 26, 1993, letter, WTI admitted the above violation but requested full mitigation of the penalty, citing the i

following reasons *

1) There was no radiati on hazard to persons-in the area and no harm was done to any pt. son;

2) The involved t

radiographers were disciplined and all radiographers were:

l reminded that they are not to operate without required safety a

equipment;

3) This-is the only violation that Western-1 Technologies, Inc. has received and the company has an excellent i

record in the state of Arizona;

4) This was an isolated.

'I occurrence and the company's audit programs have not identified 1

any other infractions;

5) The company has spent. considerable money to investigate and ensure against a recurrence, including the cost of attending the NRC enforcement' conference; and 6) The j

NRC's announcement of its enforcement action has done I

- considerable damage to the company's reputation and should count

-j as a monetary value against the fine.

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Appendix NRC Evaluation of WTI's Recuest for Mitication i

The NRC's evaluation of WTI's arguments for mitigation follows:

1.

The NRC agrees with WTI that no actual harm was done.

However, the severity level of the violation and the civil penalty amount were determined in accordance with the NRC's Enforcement Policy and the enforcement action was consistent with action taken for similar violations.

The NRC has placed great importance on wearing alarm ratemeters because they are designed to prevent significant radiation exposures to radiographers and persons in the vicinity of radiography work.

Thus the violation is of significant regulatory concern and given its willful nature was properly categorized at Severity Level II.

2.

The NRC recognized the corrective actions taken by WTI and gave WTI the maximum amount of credit permitted by the 4

Enforcement Policy, i.e.,

a reduction in the penalty by 50 percent of the base value.

3.

Regarding WTI's regulatory performance in the Agreement State of Arizona, the guidance in the Enforcement Policy, l

Section VI.B.2. (c), does provide that mitigation of the base civil penalty may be appropriate where past regulatory performance has been good.

However, given the willful nature of the violation, the NRC staff, as an exercise of discretion, did not find that there was an adequate basis l

for mitigation of the penalty based on the licensee performance factor.

The exercise of such discretion in cases involving willfulness is permitted under the Enforcement Policy in Section VII, and is intended to reflect the level of NRC's concern regarding.the willful violation and ensure that the enforcement action conveys the appropriate message to the licensee.

4.

WTI argues that it has an audit program and that this was an l

isolated occurrence.

However, the central fact in applying the factor for identification is that the NRC inspector identified the violation to the involved radiographers.

The NRC escalated the penalty by 50% in accordance with its Enforcement Policy, which provides for such an increase when violations are identified by the NRC, to emphasize that j

licensees should be identifying and correcting their own i

violations.

By definition (10 CFR 34.2), a radiographer is an individual who is responsible to the licensee for assuring compliance with the requirements of the Commission's regulations.

In the case at hand, the radiographers knew that they did not have the required alarm i

ratemeters; however, they conducted the operation anyway.

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Appendix 5.

The NRC recognizes that Western Technologies, Inc., has spent money to investigate the incident, develop corrective actions and attend the enforcement conference.

However, corrective actions are expected and required and, as discussed above, were considered in applying the civil penalty adjustment factors.

With regard to the expense of attending the enforcement conference, development of corrective actions, and licensee investigation of violations, the Enforcement Policy does not provide for using such expenses as a factor in determining the amount of a civil penalty.

6.

The NRC announced its proposed enforcement action consistent with NRC practices for keeping the public informed of regulated activities.

While the NRC understands that such announcements may possibly harm a licensee's reputation, this may provide an additional incentive to take lasting corrective action.

The NRC Enforcement Policy does not provide for considering the impact of negative publicity as a factor in determining the amount of a civil penalty.

NRC Conclusion The NRC has concluded that neither an adequate basis for a reduction of the severity level of the violation nor for mitigation of the civil penalty was provided by WTI.

Consequently, the proposed civil penalty in the amount of $8,000 should be imposed.

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Western Technologies, Inc.

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