ML20045E878
| ML20045E878 | |
| Person / Time | |
|---|---|
| Issue date: | 06/27/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-090, SECY-A-80-90, NUDOCS 9307060174 | |
| Download: ML20045E878 (34) | |
Text
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, s UNITED STATES 1
NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 ADJUDICATORY SECY-A-80-90_
June 27, 1980 COMMISSIONER ACTION For:
The Commission From:
James A.
Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-594 (!!ATTER OF ATIAliTIC RESEARCH CO!!PANY)
Facility:
Byproduct licensee (radiography) in Alexandria, Virginia
Purpose:
To inform the Commission of an Appeal Board decision for which no petitions f
for review have been filed land which, in b our opinion, 7
Review Time Expires:
July 9,1980 (as extended)
Discussion:
On March 14, 1980, the Commission over-turned an Appeal Board decision in this case and held that a licensee is account-able for its employees' conduct even though there is no finding of affirma-tive management culpability.
See AIAB-542, 9 NRC 611 (1979), rev'd, CLI-80-7, 11 11RC (March 14, 1980).
The CommissIoIremanded the matter to the Appeal Board "for further consideration solely on the issue of mitigation."
CLI 7, supra slip op. at 19.
The only issue before the Board on romand was the amount of the penalty.
Both the licen-see and the staff provided their views on mitigation:
the licensee urged that Informahi h IVs r::c j va ej the whole amount of the penalty should in a:cxdance r/B IM f riefem of lr.famati:n be mitigated, while the staff urged that Act, extmp:i;33
~ g there be no mitigation.
The Appeal Board majority decided to mitigate the FOIA.
f2-y_jg---
penalty in part to $2,000.
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F 9307060174 930317 PDR FOIA CILINSK92-436 PDR g gggg g E.
Chopko, GC (o; \\0
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The Appeal Board followed closely the Commission's decision that the licensee could be held responsible for its. en-ployees' actions in this case.
As the Appeal Board found on remand, however, the Commission did not preclude their consideration of the degree of licensee culpability in determining whether or to what extent mitigation of the amount of the penalty should occur.
ALAB-594, 11 NRC (June 2, 1980), slip op. at 7.
Thus, the issue before the Board was "whether -- taking all pertinent factors into account
-- the interest of jus-tice would be best served by mitigating th j$8,600 civil penalty."
Slip op. at Contrary to the licensee's arguments that its record supported the imposition of no penalty whatsoever, the majority con-sidered the equities raised by the licensee -- the lack of management 3
culpability and the " black mark" on the licensee's reputation of the NRC finding of a license violation -- simply as factors bearing upon whether there should be some mitigation.
The Board also considered as a mitigative factor the constructive attitude of the licen-see af ter the incident.
Taking all circumstances into account the Board adjudged that the penalty should be reduced.
1I In deciding to examine the record again for purposes of mitigation, the Appeal Board relied on Radiation Technology, 1
ALAB-567, 10 NRC 533 (1979), in finding that the adjudi,
j catory hearing on a challenge to civil penalties is de novo consideration and not a review of the Director's decision.
Thus, the Board's consideration is independent of the Director's determination and the Board may impose any penalty up to the initial penalty proposed by the Director.
ALAB-594, slip op. at 11-14, see 10 CFR 2.205(f) and slip op at 7, n.8.. In making this de novo determination, a Board may be guided by the scheHule of civil penalties set out in the Inspection and Enforcement Manual, Chapter 0800.
Slip op. at 25-28 (Appendix ),
7 3
The Board then explained that all of the employee misconduct that occurred at Atlantic Research could be viewed as "one violation," that is, all resulting from the same cause -- a single personal problem then troubling the licensee's employee.
Slip op. at 19-20 [ citing transcript].
Viewed in this light, the majority concluded that the penalty should be reduced to $2,000, the minimum amount described in the I&E enforcement manual for this kind of licensee.
While not binding on the Board, this document was deemed to be relevant for its co sideration of an appropriate penalty._g/
The Board mitigated the penalty only in part in order to focus the attention of licensees generally on the importance of scrupulous conpliance by their employees with regulatory requirements while at
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the same time recognizing the mitigative circumstances present in this case.2/
-1
' 6v. i u
1/
As the Board explained. (slip op. at 15-16), the I&E Manual describes penalties for radiographer licensees (such as in the instant case) in three categories:
violations ($2000 to S3000), infractions (S1000-52000), and deficiencies
($300-S500).
Each dollar range represents the minimum and 1
maximum penalty.
Atlantic Research was assessed the minimum amount for each separate transgression by I&E, See slip op, at 5.
El Dr. Buck concurred in part and dissented in part,. agreeing' that there should be mitigation but believing that the entire amount of the penalty should be mitigated.
He con-
.trasted thin situation to the situation in Radiation Technology where seven derelictions -
"all of which could be laid directly at the management's doorstep" -- occurred -
but only a $3,300 penalty was assessed h the ALJ.
Slip op.
at 23.
Dr. Buck's point is well-taken; Bowever, in our gy.s ll
- view, 1
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gv i, 5
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l Recommendation:
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1.
ames A.
Fi gerald Assistant General Counsel Attachments:
1.
ALAB-594 2.
Draft Memo, Chilk to Dircks Comissioners' coments should be provided directly to the Office of the Secretary by c o.b.
Tuesday, July 8, 1980.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT July 2,1980, with an infomation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coninent, the Comissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Comissioners Commission Staff Offices Secretariat 4
e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOlaD Alan S. Rosenthal, Chairman gg 3 Dr. John H. Buck S W ED Michael C. Farrar
)
In the Matter of
)
)
ATLANTIC RESEARCH CORPORATION
)
Byproduct Material License
)
No. 45-02808-04 Alexandria, Virginia
)
)
Dr. Coleman Raphael, Alexandria, Virginia, for the appellant, Atlantic Research Corporation.
Mr. James Lieberman (with whom Mr. James P.
s i
Murray was on the brief) for the Nuclear t
Regulatory Commission staff.
S noct @
O us@0 K
3 DECISION gg ithe W k,..i'mt,stukt June 2, 1980 wa 7
(ALAB-594) g 4
This civil penalty. proceeding involving the Atlantic Research Corporation (licensee) is before us for a second time.
In May 1979, we concluded that the licensee was free of management culpa-bility; on that basis, we overturned the decisions of the Adminis-trative Law Judge U which had upheld the imposition by the Director of the Office of Inspection and Enforcement (I&E) of civil penalties l/
ALJ-77-2, 6 NRC 702 (19 7 7) ; ALJ-7 8-2, 7 NRC 701 (1978).
against the licensee in the total amount of $8,600.
ALAB-542, 9 NRC 611.
Earlier this year, on the NRC staff's appeal, the Commission held, contrary to our own conclusion, that the li-censee was liable for civil penalties in the agreed-upon cir-cumstances of the case.
CLI-80-7, 11 NRC (March 14, 1980).
It accordingly vacated ALAB-542 and remanded the proceeding to us "for further consideration solely on the issue of mitiga-j tion" of the amount of the penalty.
Id. at (slip opinion,
- p. 19).
At our invitation, both the licensee and the staff filed supplemental memoranda on that issue.
The licensee urged that, "in the interest of justice", the civil penalty be mitigated "in its entirety".1 /
The staff, on the other hand, asserted that the $8,600 assessment reflected the " reasonable applica-tion of established (enforcement) policies" and, as's'uch, should not be disturbed.1 !
These rarkedly different theses were there-after explored in greater detail at an oral argument.
We have fully considered the views of the respective par-ties against the background of the Commission's decision in CLI-80-7 and our understanding of the principles which come
_2l/
Licensee Brief for Mitigation, dated April 10, 1980, at p.
4.
_3/
Staff Views on Mitigation, dated May 2, 1980, at p. 8.
~. --~ ~.- ----. ~ ~
3-into play in determining whether an assessed civil penalty should be mitigated.
We find that there is warrant for par-tial -- but not total -- mitigation in this instance.
More particularly, for the reasons hereinaf ter stated, we are re-ducing the total amount of the assessment against the licensee to S2,000.
I The civil penalties were assessed by the I&E Director by reason of the undisputed conduct of a radiographer engaged in activities covered by the byproduct material license held by Atlantic Research, his employer.
As outlined in the Commis-sion's decision, CLI-80-7, supra, 11 NRC at (slip opinion, 1
1!
pp. 3-4):
An employee-radiographer of the Atlantic Research Corporation, the corporate licen.
i see, was assigned to perform certain radio-graphic operations for the Licensee at the Licensee's cobalt-60 radiographic facility during the early hours of Sunday, Decem-ber 12, 1976.
The radiographer entered the radiographic facility, without wearing a film badge, pocket chamber, or pocket do-sineter, tested the alarm system, set up I
the first shot, and then opened the inter-locked door because the room was uncom-fortably warm.
The radiographer was accom-panied by another employee, a technician
--4/
As the Commission noted, the summary was drawn from the staff's brief before it.
The events are also described in some detail in the first decision of the Administra-tive Law Judge.
See ALJ-77-2, supra, 6 NRC at 703-05.
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working on the project, who was not a radiog-rapher and who had not been issued a film badge, a pocket chamber, or pocket dosimeter.
Because the interlocked door had been propped open, the alarm system horn sounded as de-signed; the radiographer turned off the alarm system at the control panel because the sound of the horn annoyed him.
The radiographic exposures continued with the At the end of the alarm system turned of f.the radiographer inadvertently fifth shot, f ailed to crank the source into the shielded Both individuals then reentered the position.
replaced the exposed film radiographic cell, and with a new cassette, set up another shot, returned to the control room for the sixth and final
- The total time in the cell with the un-shot.
A survey shielded source was about 60 seconds.
meter was apparently taken into the cell be-tween radiographic exposures but the radiog-rapher could not recall observing the meter reading.
the radiog-At the beginning of the sixth shot, rapher realized from the source crank position that the Co-60 source had been unshielded dur-He also realized that he ing the last entry.
and the project technician were not wearing film badges or any other type of personnel The radiographer then noti-monitoring device.
fied his supervisor, finished the last exposure, secured the f acility and returned to the radia-The radiographer did not tion safety office.
record his name and the date of the radiographic operation tests he conducted in the utilization He also did not record the final radiation log.
survey when the source was secured af ter the Due to the lack of last radiographic exposure.
doses were esti-dosimetry during the incident,(thermoluminescent dosimeter) mated using T.L.D.These measurements showed the measurements.
1,250 + 15% rem dose to radiographer received the lef t thumb and 9.2 + 15% rem dose to the whole body (lens of eyes).
The project techni-cian received a dose to the whole body (lens of The extremity dose to eyes) of 4.4 + 15% rem.
~%_
__.m.
the radiographer was later substantiated with 1
the development of erythema to the lef t thumb and first two fingers, and dry desquamation of the tip of the left thumb._5_/
CLI-80-7 further contains (11 NRC at fn, 4) this sum-mary of seven item.s of non-compliance which the I&E Director discerned from this episode, and the penalty which he determined appropriate in the instance of each of those items: 6,/
(1)
Very high exposure of radiation (a ra-diographer received approximately 1250 rems to portions of one hand and approximately 9.2 rems to the whole body; another non-radiog-rapher employee received a whole body dose of approximately 4.4 rems), a violation, in non-compliance with 10 CFR 20.101(a) ($2,000 civil penalty) ; (2) radiographer's failure to make surveys to detern.ine that the source was re-turned to its shielded position prior to entering the radiographic cell, a violation, in noncompliance with 10 CFR 34.4 3(b) ($2,000 civil penalty); (3) radiographer's intentional defeat of the automatic alarm system, a viola-tion, in noncompliance with license condition i
16, procedures 6a, item 3 ($2,000 civil penalty);
(4) radiographer's failure to wear and (5) to require the non-rcdiographer to wear either a film badge or a pocket dosimeter (or pocket chamber), both infractions, in noncompliance with 10 CFR 34.33 (a) and license condition 16, procedure 6 (d) respectively ($1,000 each civil penalty); (6) radiographer's f ailure to maintain j
the "utilizaticn logs"; and (7) radiographer's failure to make a record of the required sur-veys, both deficiencies, in noncompliance with 10 CFR 34.27,10 CFR 34.4 3 (d) and license con-dition 16, operating procedure 9.1.2(c) respec-tively (S300 each civil penalty).
j 5/
To put the staff's medical terminology into layman's terms, t eve-al of the radiographer's fingers turned red and there was i m Ting of the skin on the tip of his thumb.
6/
See als. ALJ-77-2, supra, 6 NRC at 705-06.
With respect to an eighth item, no penalty was assessed.
6-In ALAB-542, we had found no occasion to focus upon either the precise nature of the radiographer's derelictions or the details of the I&E Director's penalty computation.
Although recognizing that the " transgressions were major ones * *
- in the form of excessive radiation exposure (principally to the errant -
employee himself)",1 ! we held that 'none theless the imposition of any civil penalty against the licensee was foreclosed as a This conclusion rested upon "the absence of any matter of law.
assertion by 1&E (let alone an adiudicatory finding) either (1) that management malfeasance, ndsfeasance, or nonfeasance that contributed in any way to the license violations; or (2) the licensee f ailed to take prompt and corrective action to ob-viate a repetition of the occurrence".
9 NRC at 613-14.
Its The Commission, however, saw the matter otherwise.
decision plain'.y teaches that management culpability 'in connec-s violation of NRC regulations or license tion with a.
.s s
conditions by an employee is not to be taken as an absolute prerequisite to the imposition of civil penalties against the licensee-employer.
As the Commission put it, it is enough that "a violation has been established, that civil penalties ray positively af fect the conduct of the licensee or other sinilarly i
situated persons in accord with the policies in the Atonde Energy
_7/
9 NRC at 619.
Act, and that civil penalties are not grossly disproportionate to the gravity of the of fense * * *".
CLI-80-7, 11 NRC at (slip opinion, p. 12).
As we read our present mandate, however, there is never-theless room for taking into accoant the management culpability f actor in determining whether, and if so to what extent, the assessed civil penalties should be mitigated.
At least two con-siderations support that conclusion.
First, had the Commission thought that the appropriate amount of the penalty is to be determined by reference solely to the gravity of the radiographer's misconduct, it seems scarcely likely that the r e would have been a remand for the purpose of considering whether to " mitigate", i.e., to reduce,0 the 58,600 assessment.
This follows not only from the lack of any dispute about the seriousness of the radiographer's offenses, but also from the last paragraph in CLI-80-7.
The Commission 8/
In contemplation of law, the term " mitigation" has the settled meaning of the "[allieviation, reduction, abate-
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ment or diminution of a penalty or punishment * * *".
Black's Law Dictionary (Fif th Ed.1979), p. 904.
See also, to the same effect, Webster's Third New Interna-tional Dictionary, p. 1447.
Absent contrary indication, the Commission must be understood to have so employed the term in CLI-80-7.
Beyond that, NRC staff counsel explicitly acknowledged at the oral argument on remand (App. Tr. 47-48) that an increase in the amount of the assessed civil penalties is legally foreclosed by 10 CFR 2,205, taken in conjunction with the I&E Director's March 28, 1977 Order Imposing civil Monetary Penalties (FOOTNOTE CONTINUED ON NEXT PAGE) j
there announced that it was calling upon us to " consider whether the circumstances of this case would justify mitigation of the amount of the penalty * *
- although the $8,600 civil penalty was not the largest that might have been levied and could be viewed as small due to the employee's deliberate disregard for safety systems" (emphasis supplied).9 /
Given this appraisal, it is reasonable to suppose that a Commission judgment that only the radiographer's actions were of relevance on the mitigation question would have produced a summary determination that no reduction in the $8,600 assessment was justified -- thus bring-ing this already lengthy proceeding to an end without the neces-sity of further briefing, argument and opinions.
Second, and perhaps of yet greater significance, in his concurring opinion Commissioner Hendrie stated:
Where licensee management has taken proper steps to assure that employees observe li-cense conditions and regulations and a violation occurs, I believe that the li-censee's ef forts should be recognized in g/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) and the Commission's April 8, 1977 notice of hearing on that order.
In view of the agreement of the parties on that matter, and the Commission's own apparent recogni-tion that the assessed penalties can now be reduced but not increased, we see no need to belabor the point here.
It suf fices to note that Section 2.205 (f) in terms pro-vides that, if a hearing is held at the licensee's re-i quest, "an order will be issued after the hearing by the i
presiding officer or the Commission dismissing the pro-ceeding or imposing, mitigating, or remitting the civil-penalty".
In context, it seems quite clear that the Section has in mind the civil penalty of the amount im-j posed by the office director.
9_/
11 NRC at (slip opinion, p. 19).
)
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terms of any civil penalty which may be as-sessed.
I expect that the Appeal Board will do that in this case.
11 NRC at (emphasis supplied).
To be sure, Commissioner Bendrie was writing for himself alone and his vote was not necessary to form a majority for the result which was reached in CLI-80-7.lS!
It may be fairly presumed, however, that the Commissioners who subscribed to the majority opinion were aware of his articulated expectation regarding what would be done on the remand and, if in disagreement with him, would have said so equally explicitly.
That that opinion does not even hint of such disagreement gives us confidence that, on that question at least, all of the Commissioners were of one mind.
i II We thus now turn to the question whether -- taking all per-tinent factors into account (including both the seriousness of 32! and the want of management culpability 32/)
the misconduct the interests of justice would be best served by mitigating the
$8,600 civil penalty.
la/
Although, because of the absence of certain Commissioners when the formal vote was taken, it was recorded as 2-1, in
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actuality four Commissioners had decided to join in the vacation of ALAB-542 and the remand to us for further con-sideration of the mitigation question.
See CLI-80-7, 11 (slip opinion, p.19).
Commissioner NRC at fn.
lennedy dissented; he would have affirmed our decision.
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- o one, including the licensee, disputes that. it was seri-ous.
12/
We do not read the Commission's decision as overturning our conclusion (based upon the stipulated facts) that
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(FOOTNOTE CONTINUED ON NEXT PAGE)
~n
. A.
In confronting that question, we are obliged at the outset to ascertain the standard to which we should resort.
In this connection, as was noted in ALAB-542 (9 NRC at 617),
the I&E Director has issued a manual which contains, inter alia, the criteria which he uses for determining not merely whether a civil penalty should be imposed for a particular dereliction but, as well, what its amount should be.
These criteria will be later discussed in greater detail (see p. 15, infra); it is enough for present purposes to note that each of the penalties assessed by the Director here appears to be within the monetary range prescribed by the manual -- and, indeed, at the lowest M/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) there was no such culpability.
At one point, the Com-ndssion did observe that, af ter the event, the licensee had " instituted procedures that are designed to obviate a repetition of the incident".
11 NRC at (slip opinion, p. 12).
It hastened, however, to " emphasize that we are not using the licensee's subsequent improve-ments of its procedures to establish culpability but we are taking note of it as further evidence that conduct may be improved in general in response to strong enforce-Id. at fn. 19.
ment actions such as that proposed here".
At another point (fn. 9) the Co= mission took issue with l
the weight which we had attached in ALAB-542 to a state-ment made by the I&E Director at the mitigation hearing before the Administrative Law Judge.
But while deter-i mining that that statement "was not meant to completely absolve the management from culpability", the Commission did not suggest that there were disclosures of record J
which af firmatively indicated the existence of culpa-Our own reexamination of the matter on this bility.
i remand has disclosed nothing which would lead us inde-insofar as pendently to alter our prior judgment that, i
this record reveals, the fault lay with the radiographer exclusively.
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point in that range.
The staff seized upon that fact in urging, both in its supplemental memorandum (at p. 6) and at argument (App. Tr. 3-4), that we should look upon the Director's assess-ment as reflecting that he has, by application of " established policies", already given full recognition to the " mitigating factors";
i.e.,
to "the lack of direct management involvement, good enforcement history, the lack of repetitive items of non-the pro' ptness of corrective action".
compliance, m
Although thus maintaining that the Director properly exercised his discretion, the staff does not contend that our review is necessarily governed by an " abuse of discretion" standard.
We were told by its counsel at argument that the staff would also have no objection were we, instead, to put ourselves in the place of the Director and, " apply [ing] his policies and procedures", exercise our own judgment'as to the appropriate civil penalty (App. Tr. 4).
The staff also ac-knowledged a third possible option:
we might arrive independ-ently at the amount of the penalty by applying our own judgment without regard to the Director's policies (App. Tr. 5).30 /
Staff counsel observed that, were that" option selected, 13/
we would be bound by any limithtions imposed by the Com-
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mission in remanding the case and, additionally, could not increase the amount of the penalty assessed by the Director.
See fn.
8, supra.
e4
12 -
The choice among these alternatives is not a difficult one in light of our decision last year in Radiation Technology, Inc.,
ALAB-567, 10 NRC 533.
One of the assertions advanced by the licensee in that civil penalty proceeding was that the I&E Director's decision to proceed against it rested upon "off-the record", ex-parte reports made by NRC safety inspectors.
Com-plaining that it had had no opportunity to cross-exandne the Director to determine whether he had been improperly influenced by those reports, the licensee insisted that it had been denied due process.
This was because the " ultimate f act finder" had been privy to " allegations not on the record".
10 NRC at 536.
By way of response, the staf f pointed out that, "[o)nce the Licensee requested a hearing, it became the responsibility
- Administrative Law Judge to decide the and duty of the The Director was no longer the 'decisionmaker".
case anew.
Upon the receipt of all of the evidence bearing upon the ex-istence of the alleged violations and "any mitigating circum-stances", "[t]he Administrative Law Judge then had to arrive at a decision on whether the violations occurred, [and) whether and in what amount a civil penalty should be imposed" (emphasis supplied).
In making that determination, "the Administrative Law Judge was not bound by the Director's imposition of a $4,800 penalty, although one purpose of the staff's testimony was to
u persuade the Administrative Law Judge that a $4,800 penalty was appropriate under the circumstances".li/
We expressly agreed with the staff's position.
Rejecting the licensee's due process claim as resting upon a "misconcep-i tion", we said:
The Director is not the ultimate fact finder in civil penalty matters.
Conadssion regula-tions afford one from whom a civil penalty is sought the right to a hearing on the charge against it.
10 CFR 2.205 (d) and (e).
At that hearing, the Director must prove his allega-tions by a preponderance of the reliable, probative, and substantial evidence.
It is the presiding officer at that hearing, not the Di-rector, who finally determines on the basis of the hearing record whether the charges are sustained and civil penalties warranted.
10 NRC at 536-37.
In short, Radiation Technology teaches that -- as the staff itself there stressed -- the adjudicatory hearing in a civil penalty proceeding is essentially a trial de novo.
Subject only to observance of the principle that the penalty assessed by the I&E Director constitutes the upper bound of the penalty which may be imposed af ter that hearing, the Administrative Law Judge (and this Board and the Commission on review) may substitute their own judgment for that of the Director.
Stated otherwise, 14/
Staf f's Brief opposing Licensee's Exceptions to the Initial Decision in Radiation Technology, Inc., dated
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April 16, 19 79, at pp. 7 5-7 6 The 54,800 penalty had been based upon nine asserted derelictions.
Because the Administrative Law Judge upheld only seven of' the nine charges, the total penalty was reduced by him (without mitigation) to S3,300.
See fn.19, infra.
the if deemed to be warranted in the totality of circumstances, adjudicator is entirely free to mitigate or remit the assessed penalty.
10 CFR 2.205(f); see fn.
8, supra.
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This does not mean that the schedule of civil penalties bb! amounts to set out in the Inspection and Enforcement Manual In the interest of achieving general equclity so much waste ink.
of treatment among offending licensees (and of putting those 11-censees on fair advance notice of the dimensions of the enforce-there ment action which may be instituted against them by I&E),
is much to be said for the adoption of such a schedule and its And, even though it use by the Director and his subordinates.
does not have the force of a regulation,lb/ should the quantum of the penalty end up in dispute the same considerations militate in favor of the adjudicators according the schedule some attention But to bear the schedule in mind is not.to give it and weight.
necessarily conclusive effect.
As the ultimate decisional au-thority, with the expressly conferred power to mitigate or remit j
a penalty assessed by the Director on the basis of the schedule, the adjudicators manifestly must be thought to have the latitude to effect a reduction to a level below the schedule range.
1__5/
See p. 15, infra.
The staff so conceded when this proceeding was previously before us.
See ALAB-542, supra, 9 NRC at 613 fn. 4.
16/
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~ mn Whether that discretion should be exercised (either by the Administrative Law Judge or a reviewing tribunal) will, of course, hinge upon the f acts of the specific case.
B.
Chapter 0800 of the Inspection and Enforcement Manual is concerned with enforcement actions.
It begins by assigning all " items of noncompliance" (i.e.,
"the failure to comply with
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a regulatory requirement") to one of "three categories of and deficiencies".ll/
The severity:
violations, infractions, schedule of civil penalties for each category is set out in Table II,lE! following Section 0855.06.
As is seen from the Table, different ranges are provided for the various types of licensees, from power reactor operators to medical and academic licensees.
For radiographer licensees with more than ten em-ployees (e.c., the licensee hereinvolved), the specified range is:
$2000-$3000 Violations
$1000-$2000 Infractions
$ 300-S 500 Deficiencies 17/
Section 0802.03.
The categories are listed in descend-ing order of severity.
What is included in each is set forth, respectively, in subsections.04,
.05 and.06 of Section 0802.
The text of those subsections is included in the appendix to this opinion, infra, pp. 25-27.
18/
That table also is reprinted in full in the appendix, infra, p. 28.
e e
w
, +
As already seen (p. 5, supra), this licensee was as-two in-sessed with penalties for a total of three violations, fractions and two deficiencies.
And, in each instance, the i
assessment was the schedule minimum:
$2000 per violation;
$1000 per infraction, and S300 per deficiency.
Once again, this result is said to have stemmed from the Director's ap-plication of the " mitigating factors" such as lack of manage-ment culpability.
h'e must dismiss summarily the licensee's argument 1.
In its that the civil penalties should be mitigated in full.
supplemental memorandum, the licensee placed almost exclusive reliance upon the point emphasized by it throughout the pro-that the incident is not attributable to fault ceeding: viz.,
Although that factor struck a responsive chord i
on its part.
it obviously no with us when ALAB-542 was rendered last year, longer can carry the day in view of the Commission's interven-that decision leaves room for consideration ing decision.
- True, of the management culpability factor.in determining whether some J
measure of mitigation is justified.
But violence would be plainly done to both the Commission's analysis and our obligation to fulfill l
-l its commands were we to conclude anew that the absence of licensee fault prec'ludes the imposition,of agt monetary sanction for the l
serious transgressions of the radi, grapher.
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- r
. i t
For like reasons, we are unable to accept the licensee's alternative suggestion at argument that the civil penalties should be mitigated in their entirety because it has already paid a severe price for those transgressions -- in the form of the impressing of a " black mark" on its assertedly otherwise unblemished reputation (App. Tr. 69-72).
Presumably, the Com-mission was aware that, of itself, a finding of a license violation adversely affects a licensee which has a previously clean compliance record.
It seems equally implicit in what was said in CLI-80-7, however, that this consideration was not deemed to be of sufficient deterrent value to serve as a total substitute for the imposition of a monetary sanction.
At the most, then, it can be looked upon by us simply as one of the myriad f actors bearing upon whether there should be some mitiga-tion of the assessed civil penalties.
2.
While thus casting aside the proposition that there both can and should be a reaffirmation of the uitimate result rea:ned in ALAB-542 -- i.e., no penalties at all -, we do find ample cause for substantial mitigatiors.
More particularly, all things taken into account, it seems to us that a penalty in the aggregate amount of $2,000 will in this instance both j
(1) achieve the intended objective of focusing the attention of NRC licensees generally upon the importance of scrupulous l
~ ~.
compliance by their employees with all regulatory requirements; and (2) give deserved recognition not merely to the apparent lack of management culpability but, as well, to the construc-tive attitude which this licensee has manifested with respect to the fulfillment of its obligations under the Commission's regulations.11!
if the radiographer's misconduct is properly To be sure, viewed (as it was by the I&E Director) as involving seven distinct transgressions for which seven separate penalties should be imposed, the consequence is that we are going below the lower limit of the various penalty range's set out in the manual schedule.
But, once again, the schedule is not bind-ing upon us.
(Indeed, if it were, there would be no room for the licensee's actions -- not just On the latter score,
[g,/
its words -- are persuasive that it has neither minimized the gravity of what its employee did nor f ailed to appre-hend the need to do all that might be required to obviate We might add that this is in sharp contrast a repetition.
to the impression lef t with us by the licensee in Radia-tion Technology, ALAB-567, supra (see particularly 10 NRC at 553), which had received a penalty totaling $3,300 for seven established derelictions (all of which could be laid It is true that directly at the management's doorstep).
This no undue radiation exposure had resulted therefrom.
was, however, wholly fortuitous; it is manifest from the description of the derelictions in ALAB-567 (10 NRC at most of them had very serious potential conse-535) that quences along that line.
In this regard, staf f counsel here told us at oral argument that, in assessing civil penalties for "an item of non-compliance" (i.e., a " violation", an
" infraction" or a " deficiency"), "[t]he issue is not the amount of the overexposure, it is the potential for anWe overexposure" (App. Tr.15-16; see also id. at 26).
agree with-that view of the matter.
any reduction of the 58,600 aggregate penalty at all, inasmuch as each of its components represented the minimum provided by the schedule for the particular dereliction involved.)
As it appears to us, we would be unfaithful to the discharge of our independent responsibilities were we not to give expression to our judgment respecting the sanct..on which will best serve the ends of justice.
Although that judgment obviously has subjec-tive elements, this is always the situation in the confrontation of questions of penalty mitigation.
It should be sufficient that, as we are satisfied is so here, the record provides a rational foundation for the conclusion which we have reached.
There is, however, a different perspective from which the case might be viewed, which in turn would reconcile our mitiga-tion determination with the manual schedule.
Common experience suggests that the series of transgressions committed'by the radiographer stemmed from the single personal problem which was then troubling himlE/ and in that context might fairly be re-garded as a single transaction on his part.
True, the licensee is ultimately responsible for all the violations and there is no doubt that, as a matter of law, each can be the subject of a separate penalty.
But here the miscreant's employer in no way
,-0/
See the transcript of the June 2,1977 pre-hearing con-2 ference, pp. 24-25; and the transcript of the. January 31, 1978 mitigation hearing, p. 93.
s.
'N
_ _ _ m encouraged or condoned the misconduct and it all occurred in a very brief period before preventive steps could be taken.21/
As a matter of equity, then, there is at least some reason here to deal with the employer -- for mitigation purposes only -- as though its errant employee's chain of infractions constituted f
but a single incident.12/
Under this "one violation" view, the Director's own criteria would support a penalty of $2,000 (see p. 15, supra).S2/
The 58,600 civil penalty assessed by the Director of the Office of Inspection and Enforcement is reduced in amount to
$2,000.
The events took place in a two-hour period after midnight 21/
The radiographer was permanently removed on a Sunday.
from his job that afternoon.
June 2,1977 Tr. at 7; January 31, 1978 Tr. at 51, 61, 103-04.
Lest we be misunderstood, we stress again the unusual na-22/
ture of the f acts here:
the record depicts a trusted, well-trained and theretofore dependable employee suddenly June 2, and briefly. departing f rom prescribed practices.
1977 Tr. at 6-7; January 31, 1978 Tr. at 103-04.
Viewing his conduct as a single course of action does not mean that other types of violations, involving different cir-cumstances, would induce us to take a similar approach to mitigation.
There is one other point which is worthy of mention, even 23/
As has been though our result does not hinge upon it.
seen (p. 4, supra), a crucial element of the incident in question was the ability of the radiographer to turn off the alarm system with little difficulty.
(Indeed, it seems highly unlikely that there would have been any radiation exposure at all had the employee not found it so easy to defeat that system.)
In that circumstance, given I&E's f
. presumed interest in avoiding a repetition of this type o occurrence (which interest assertedly is at the root of the civil penalty assessment here), one might have thought that guidance respecting the proper wiring of alarm systems (FOOTNOTE CONTINUED ON NEXT PAGE)
It is so ORDERID.
FOR THE APPEAL BOARD b
S i
C. Je n Bishop Secret ry to the Appeal Board The opinion of Dr. Buck, concurring in part and dissenting in part, follows, pp. 22-24, infra.
23/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) would have been furnished licensees generally.
We thus-asked staf f counsel to inform us at oral argument whether this had been done.
May 5, 1980 order (unpublished) at p.
2.
The staff responded by furnishing us with copies of two documents which had dealt with the incident at bar:
Report to Congress on Abnormal Occurrences, October-December 1976 (NURIG-0090-6);
Public Meeting on Radiation Safety for Industrial Radiographers, OR1 RIG-04 95).
The first of these documents apparently was not routinely fur-nished to all radiography licensees (App. Tr. 31-32).
Although the second was so furnished (App. Tr. 33), the discussion in it of this incident (as one of thirteen " case histories") was quite brief and concluded with the simple notation (at p. 38) that the " incident would have been avoided had the radiographer followed procedures and if management controls had existed to assure he followed procedures".
Leaving aside that the second part of the statement is dif ficult to square with the stipu-lated facts before us, this scarcely served as advice to li-censees that alarm systens should be hard-wired to make discon-nection more difficult to achieve.
It is, of course, not our function to instruct the I&E Direc-tor respecting the guidance which his of fice should supply (or directly to licensees by means of bulletins and circulars other broadly-disseminated documents such as information no-tices).
We must say, however, that the absence of such guid-ance with regard to the hard-wiring of alarm systems brings at least into question the importance attached by I&E to preventing a repetition of what transpired in this instance.
And this consideration certainly is relevant (albeit not dis-positive) on the question of the amount of the civil penalty which would ultimately be assessed in the interest of deter-ring future occurrences of a similar nature.
4 r
8'l
concurring in part and dissenting in part:
Opinion of Dr. Buck, I am in basic agreement with the reasons assigned by my colleagues for mitigating the $8,600 civil penalty originally But I believe their con-assessed against Atlantic Research.
clusion that a civil penalty of S2,000 should be now imposed is arbitrary and does not properly consider the entire circum-stances of this case.
In my judgment, the assessed monetary penalty should be remitted in its entirety.
Obviously, the Commission's decision (CLI-8 0-7 ) teaches that this licensee must bear legel responsibility for the in-cident and, as a consequence carry the violation on its record.
But it does not perforce follow that a civil penalty must or should he imposed.
My colleagues take note of the f act that the transgressions occurred when a long-term, well-trained and trusted employee was (unknown to called in for a special project late at night when he was confronted with serious personal problems.
his employer)
For this reason, my colleagues conclude that the incident can
)
appropriately be viewed (for penalty mitigation purposes) as one violation and for this one violation they assess a $2,000 civil i
While I agree with the appraisal that the incident penalty.
can properly be viewed as a single violation, I do not concur in their further judgment that this calls for a civil penalty.
i 1
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.x -
l l That judgment, as I see it, neither gives proper weight to the licensee's attitude and past performance nor attaches adequate significance to the total lack of management involve-ment in this particular incident.
As my colleagues point out in their extensive fn. 23, at p. 20, "a crucial element of the incident in question was the ability of the radiographer to turn off the alarm system 1/
with little difficulty"~~
(emphasis added).
However, the licensee's system was fully in compliance with the staff criteria at the time of the incident and still would have been if it had remained unchanged until early 1980 when the staff finally issued a regulation concerned with the matter.
See App. Tr. 34.
In other cases, moreover, the Director of I&E has remitted the 2/
~~
entire monetary penalty even with known management involvement.
One must also compare the present proceeding with the situation in the Radiation Technolocy case discussed by my colleagues (at fn. 19, p. 18), where a penalty of S3,300 was imposed for seven derelictions "all of which could be laid to directly at the management's doorstep".
1/
See my remarks on this subject during the oral argument 1ast year when the licensee's appeal was first before us
~~
(at Tr. 88-89).
2_/
The example given by staff counsel' at oral argument (App.
Tr. 24-27) concerned a case where management neglected to cbtain the facility key from an employee when he was fired.
He later entered the facility by the use of that key and was found intoxicated near a radioactive source.
It is unknown as to the radiation he received but the potential for seri-ous overdosage is apparent.
.i
--.6
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2
-.s a
0-24 -
In my opinion the only fair and nonarbitrary decision in this proceeding (in view of the record of no management involve-ment and where the incident was caused by the temporarily dis-turbed, valuable, and trusted employee) is to remit the monetary penalty in its entirety.
4 G
y
w 4'.
APPENDIX Excerpts from the Inspection and Enforcement Manual Issued by the NRC Office of Inspection and Enforcement Section 0802 Definitions
.04 Violation A violation is an item of noncompliance of the type listed below, or an item of noncompliance (1) which has caused, contributed to or aggravated an incident of the type listed below, or (2) which has a substantial potential for causing, contributing to or aggravating such an incident or occurrence; e.g., a situation where the preventive capability or controls were removed or otherwise not employed and created a sub-stantial potential for an incident or occurrence with actual or potential consequences of the type listed belows (a)
Exposure of an individual in excess of the radiation dose specified in 10 CFR 20.403 (b) or exposure of a group of individuals resulting in each individual receiving a radiation dose which exceeds the limits of 10 CFR 20.101 and a total dose for the group exceeding 25 man-rems.
(b)
Radiation levels in unrestricted areas which exceed 50 times the regulatory limits.
(c)
Release of radioactive materials in amounts which exceed specified limits or concentrations of radioactive materials in effluents which exceed 50 times the regu-latory limits.
(d)
Fabrication, or construction, or testing or operation of a seismic category I system or structure in such a manner that the saf ety function or integrity is lost.
(e)
Failure to function when required to perform the safety function or loss of integrity of a Seismic Category I system, or structure; or other component, system, or structure with a safety or consequences limiting function, j
(f)
Exceeding a safety limit as defined in technical speci-i fications associated with facility licenses.
A
+
Industrial sabotage of utilization or fuel f acilities.
(g)
Radiation or contamination levels in excess of limits (h) on packages or loss of confinement of radioactive materials in packages offered for. shipment on a common carrier.
(1)
Diversion or thef t of plutonium, uranium 233, or uranium enriched in the isotope U-235.
MUF or LEMUF exceeds any applicable limit by a factor (j) of two.
All security barriers or controls removed or inoperative (k) and there is unimpeded access to a vital area.
Other similar items of noncompliance having actual or (1) potential consequence of the same magnitude.
Failure to report the above items as required constitutes a violation of the srme importance level.
.05 Infractions An infraction is an item of noncompliance of the type listed below, or an item of noncompliance (1) which resulted in a reduction of preventive capability below requirements but redundant controls precluded an item of noncompliance of the which caused, contributed to or violation category, or (2) aggravated such an incident or occurrence; e.g.,
the pre-ventive capability or controls were removed or otherwise not employed and thert was substantial potential for an incident or occurrence with actual or potential consequences of the type listed below:
Exposure of an individual or groups of individuals to (a) radiation in excess of permissible limits but less than the values in 10 CFR 20.403.
Release of radioactive materials in concentrations or (b) rates which exceed permissible limits but in amounts less than permissible limits.
Failure to function or loss of integrity of a Seismic (c)
Category I system or structure, or other component, system, or structure with safety or consequences li-miting function during test; or failure to meet sur-veillance frequencies.
p*-
.=
~
l 27 -
l l
(d)
Fabrication, or construction, testing or operation of j
a Seismic Category I system or structure in such a manner that the safety function or integrity is impaired.
(e)
Exceeding limiting conditions for operation (LCO).
j (f)
Inadequate management or procedural controls in the QA impicmentation.
(g)
Safety system settings less conservative than limiting safety system settings.
(h)
MUF or LEMUF exceeds any applicable limit by any amount up to a factor of two.
i (i)
Security degraded or impaired by removal or impairment of a required barrier or control but a redundant system operative.
i (j)
Exceeding limits or limiting conditions for operation in licenses, technical specifications, guides, codes, or standards which are imposed for the purpose of minimizing adverse environmental impact.
(k)
Other similar items or noncompliance having actual or potential consequences of the same magnitude.
Failure to report the above items as required constitutes an item of noncompliance of the same category.
.06 Deficiency A deficiency is an item of noncompliance in which the threat to the health, safety, or interest of the public or the common defense and security is remote; and no undue expenditure of time or resources to implement corrective action is required; and deficiencies include such items as noncompliance with records, posting, or labeling requirements which are not serious enough to amount to infractions.
Failure to report deficiencies as required constitutes an item of noncompliance of the same category.
...e,.,
s
,.o i--- -.--- ----
TABhE 11 (fo'llowing Section 0855.06]
SCIIEDULE OF CIVIL PENALTIES FOR HRC LICENSEF.S
~
Range of Honetary Penalty For Construction. Startup or Operation of I
Reactors, Fuel Facilities or Heterial Prngrnas Safer,uards and Phynical Security Per item of Honenepliance k
1.
Power Reactors and Irradisted Fuel 1.
Power Reactors and Irradiated Fuel Reprocessors l
Reprocessors Violations
$4000 - 5000 Violations infractions 3000 - 4000 Infractions 1000 - 2000 Deficiencies Deficiencies 2.
Test' Reactors. Fuel Processore 2.
Processing and Fnbrication Fuel Facilites (Iligh Enriched r
>20Z U-235)
Viointions 3000 - 4000 Violations 2000 - 3000 Infractions Infractions 500 - 1000 Deficiencies Deficiencies f
3.
Research Reactore, Hajor Distributors, 3.
Processing and Fabrication Fuel Facilities (Lou EnricheI < 20% U-235) oo Radiographer Licensees With Hore Than Ten Employees, Waste Burial Firms. Uranium j
Hills and Uranium Conversion or Feed Plants Violatione 2000 - 3000 Violations 1000 - 2000 Infractions Infractions 300 - 500 Deficiencies Deficiencies 4.
Critical Experiment Facilities, Radio-4.
Small Scale R & D Facilities grapher. Licensees With No More Than Ten (Nonproduction)
Employees. Other Industrial Licensees, and Persons Without a License Violations Violations 1000 - 2000 Infractione 500 - 1000 Infractione 50 - 500 Deficiencies Defielencies 5.
Ifedical, Academic and Other Licensees 3.
Medical, Academic and other Licensees Violations 500 - 1000 Violations Infractions 300 - 500 Infractions Deficiencien 50 - 100 Deficiencies Attachment I to Section 0855
-.