[Federal Register Volume 69, Number 175 (Friday, September 10, 2004)]
[Notices]
[Pages 54816-54818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20496]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-35059; License No. 34-06943-02; EA-03-204]
In the Matter of U.S. Inspection Services, Dayton, OH; Order
Imposing Civil Monetary Penalty
I
Materials License No. 34-06943-02 was issued by the Nuclear
Regulatory Commission (NRC or Commission) to U.S. Inspection Services
(Licensee) on August 31, 1999. The license authorizes the Licensee to
receive, acquire, possess, and transfer iridium-192 and cobalt-60 in
sealed sources for use in industrial radiography and depleted uranium
for shielding in industrial radiography equipment in accordance with
the conditions specified therein. The license was renewed in its
entirety on June 22, 2004, with Amendment No. 7 and is to expire on
September 30, 2011.
II
An inspection of the Licensee's activities was conducted on
September 12, 2003. The results of this inspection 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
June 15, 2004. The Notice states 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 July 12,
2004. In its response, the Licensee did not deny the violations, in
whole or in part, did not dispute the severity level assigned to the
violations, and did not contest the application of enforcement
discretion to increase the amount of the civil penalty. The amount of
the civil penalty was increased because of a lack of management
oversight of the radiation safety program that significantly
contributed to the conditions leading to the overexposure event
described in the June 15, 2004, letter and Notice. However, the
Licensee protested the proposed imposition of a civil monetary penalty
in the amount of $19,200 indicating that the civil penalty adjustment
factor for Identification was applied incorrectly. The Licensee also
claimed that credit was not given for the corrective actions the
Licensee had implemented.
III
After considering the Licensee's response and the statements of
fact, explanation, and argument for mitigation contained therein, the
NRC staff has determined, as set forth in the Appendix to this Order,
that the violations occurred as stated and that the civil penalty of
$19,200 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 $19,200 within 30
days of the date of this Order, in accordance with NUREG/BR-0254. In
addition, at the time of making the payment, the Licensee shall submit
a statement indicating when and by what method payment was made, to the
Director, Office of Enforcement, U.S. Nuclear
[[Page 54817]]
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, DC 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, EA-
03-204'' and shall be submitted to the Secretary, U.S. Nuclear
Regulatory Commission, ATTN: Rulemakings and Adjudications Staff,
Washington, DC 20555. Copies also shall be sent to the Director, Office
of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC
20555, to the Assistant General Counsel for Materials Litigation and
Enforcement at the same address, and to the Regional Administrator, NRC
Region III, 2443 Warrenville Road, Suite 210, Lisle, IL 60532-4351,
Because of continuing disruptions in delivery of mail to United States
Government offices, it is requested that requests for hearing be
transmitted to the Secretary of the Commission either by means of
facsimile transmission to (301) 415-1101 or by e-mail to
[email protected] and also to the Office of the General Counsel
either by means of facsimile transmission to (301) 415-3725 or by e-
mail to [email protected].
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.
For the Nuclear Regulatory Commission.
Dated this 1st day of September 2004.
Frank J. Congel,
Director, Office of Enforcement.
APPENDIX--Evaluation and Conclusion
A response to the Notice was provided by U.S. Inspection
Services (Licensee) in a letter dated July 12, 2004. In its
response, the Licensee did not deny the violations, in whole or in
part, and the Licensee did not contest the severity level assigned
to the violations. The Licensee also did not dispute the use of
enforcement discretion to increase the amount of the civil penalty.
The amount of the civil penalty was increased due to a lack of
management oversight of the radiation safety program which
significantly contributed to the conditions leading to the
overexposure event. However, the Licensee protested the proposed
imposition of a civil monetary penalty in the amount of $19,200
because the Licensee believed that the civil penalty adjustment
factor for Identification was incorrectly applied and credit was not
given for the corrective actions taken by the Licensee.
Licensee's Request for Recission or Mitigation of the Civil Penalty
In the response to the Notice, the Licensee contended that the
NRC incorrectly applied the civil penalty assessment process
described in Section VI.C.2 of the ``General Statement of Policy and
Procedures for NRC Enforcement Actions'' (Enforcement Policy),
NUREG-1600. In its presentation, the Licensee indicated that a prior
escalated enforcement action, EA-02-201, that occurred within two
years or two inspections of the current enforcement actions should
be withdrawn. With EA-02-201 withdrawn, the Licensee contended that
the Licensee would no longer have an escalated enforcement history
within the prior two years or two inspections; therefore, the NRC
Staff was not required to assess the civil penalty adjustment factor
for Identification in accordance with Section VI.C.2.b(1) of the
Enforcement Policy. In requesting that EA-02-201 be withdrawn, the
Licensee argued that 10 CFR 34.41, the regulation cited in the
Notice associated with EA-02-201, does not require that radiographic
personnel be in direct line-of-site with each other; rather, the
radiographic personnel present on August 29, 2002, maintained
contact with each other by radio which is sufficient to meet the
requirements of 10 CFR 34.41.
The Licensee also contended that credit was not given for the
Corrective Action civil penalty adjustment factor.
NRC Evaluation of Licensee's Request for Recission or Mitigation of the
Civil Penalty
A. The Licensee is correct that the previous escalated
enforcement action, EA-02-201, should not have been considered in
determining the application of the civil penalty adjustment factor
for Identification. Section VI.C.2.b(1) of the Enforcement Policy
provides that the NRC will consider the civil penalty adjustment
factor for Identification for the second non-willful Severity Level
III violation within a period of two years or two inspections,
whichever is longer. The violations in the current escalated
enforcement action, EA-03-204, were categorized as a Severity Level
II problem.
In accordance with Section VI.C.2.b(1) of the Enforcement Policy
the NRC Staff is not required to consider a Licensee's enforcement
history in assessing the civil penalty adjustment process for a
Severity Level II violation. Since the current violations are
categorized as a Severity Level II problem, the NRC Staff was not
required to consider a previous escalated enforcement action to
assess the Identification civil penalty adjustment factor.
Therefore, the existence of EA-02-201 is not a factor in assessing
the civil penalty adjustment factor for Identification.
The NRC Staff concludes that the civil penalty adjustment factor
for Identification was properly assessed in accordance with the
Enforcement Policy and consideration of the previous escalated
enforcement action, EA-02-201, was not required by the Enforcement
Policy to complete that assessment. Since the NRC Staff identified
the violation, no credit for the Identification factor was
warranted.
B. As part of its argument regarding the civil penalty
adjustment factor for Identification, the Licensee contended that
the prior enforcement action, EA-02-201, should be withdrawn. On
November 29, 2002, the NRC issued a Severity Level III violation
associated with the Licensee's failure to have two qualified
individuals present during radiographic operations on August 29,
2002, at a field location in Indianapolis, Indiana, in violation of
10 CFR 34.41(a), ``Conducting Industrial Radiographic Operations.''
The Licensee contends that 10 CFR 34.41(a) does not require
radiographic personnel to maintain direct visual line-of-site
contact. Rather, the Licensee personnel used radios on August 29,
2002, to maintain communications at the temporary site in
Indianapolis, Indiana, and the use of radios improved their ability
to provide immediate assistance to prevent unauthorized entry into
the radiation field. Therefore, EA-02-201 should be withdrawn.
The Commission's regulations at 10 CFR 34.41 provide that during
field radiography, the radiographer must be accompanied by at least
one other qualified individual and the other qualified individual
must observe operations and be capable of providing immediate
assistance to prevent unauthorized entry. Additionally, 10 CFR
20.1902, ``Posting Requirements,'' provides, in part, that the
Licensee will post each radiation area with a conspicuous sign or
signs marking the radiation hazard.
A ``radiation area'' is defined in 10 CFR 20.1003 as an area,
accessible to individuals, in which radiation levels could result in
an individual receiving a dose equivalent in excess of 0.005 rem in
1 hour at 30 centimeters or 30 centimeters from any surface that the
radiation penetrates. For the purposes of 10 CFR 20.1003, individual
means any human being. Measurements and assessments of the radiation
level at the Indianapolis, Indiana, job site indicated a level of 25
milliroentgen per hour, exterior to the building, at 65 feet from
the exposure device containing 41 curies of iridium-192, assuming a
point source, a gamma constant
[[Page 54818]]
of 5.2 roentgen per hour per curie at 30 centimeters, and
considering shielding inherent to the facility including structures
and equipment.
On August 29, 2002, a radiographer and a radiographer's
assistant were assigned by the Licensee to conduct field
radiographic operations at a temporary job site in Indianapolis,
Indiana. The radiography consisted of eight exposures, including
uncollimated panoramic exposures, of a heat exchanger inside of a
building. The radiographer and the radiographer's assistant did not
conspicuously post the radiation area exterior to the building to
warn of the radiation area created during the radiographic
exposures. While the radiographer remained inside the building to
observe the radiographic operation, the radiographer's assistant was
to stay outside of the building to warn anyone approaching the area
of the radiation hazard.
One section of the radiation area was behind a wooden fence and
that area was accessible to the public. That section was not posted
as a radiation area and the fence blocked the view of that area for
the radiographer's assistant. Therefore, neither the radiographer
nor the radiographer's assistant could provide immediate assistance
to prevent unauthorized entry into the radiation area because the
radiographer's view of the area was blocked by the building wall.
While controlling access outside of the building to prevent
unauthorized entry into another section of the radiation area, the
radiographer's assistant was approached by the owner of an adjacent
building with questions about potential radiation hazards in that
person's building. The radiograph's assistant left the radiation
area where he was posted to control access to prevent unauthorized
access and went to the near-by building to answer questions about
potential radiation hazards. While inside the adjacent building, the
radiographer's assistant could not view the radiation area and the
radiographer could not maintain visual surveillance of the area
because of the intervening building wall. The absence of a qualified
individual to maintain surveillance to prevent unauthorized access
to a radiation area and the failure to post warnings of the
radiation hazard are violations of 10 CFR 34.41(a) and 10 CFR
20.1902.
The NRC Staff concludes that the radiographer's assistant could
not observe a section of the radiation area at the temporary job
site in Indianapolis, Indiana, and therefore could not observe
radiographic operations or provide assistance to prevent
unauthorized entry into a radiation area and the area was not marked
as a radiation area. The NRC Staff also concluded that the
radiographer's assistant left another section of the radiation area
unattended and the radiation area was not posted; therefore, no
means existed to warn individuals of the presence of a radiation
area or to prevent unauthorized entry into that area. The use of
radios between Licensee personnel would not have adequately
compensated for the absence of the radiographer's assistant or
appropriate postings to warn of the radiation hazard.
Since qualified individuals could not observe the radiation area
exterior to the building while radiographic operations were taking
place, they were not in a position or capable of providing immediate
assistance to prevent unauthorized entry into the radiation area
exterior to the building, and radio communication would not have
provided any assistance to prevent unauthorized entry into the
radiation area. Therefore, EA-02-201 remains valid and will not be
withdrawn.
C. The Licensee contended that the NRC did not give credit for
the civil penalty adjustment factor associated with Corrective
Action. As explained in the June 15, 2004, letter from the NRC,
credit was warranted for the Corrective Action adjustment factor and
no additional civil penalty was assessed for the Corrective Action
factor.
The NRC gave appropriate credit to the Licensee for the
corrective actions implemented by the Licensee, as described in the
June 15, 2004, letter from the NRC to the Licensee.
Section VI.C of the Enforcement Policy, provides, in part, that
management involvement, direct or indirect, may lead to an increase
in the civil penalty. Section VII.A.1 of the Enforcement Policy
provides for escalating the amount of the civil penalty by the base
or twice the base civil penalty to ensure that the civil penalty
reflects the significance of the circumstances. The NRC escalated
the amount of the civil penalty by the base amount due to a lack of
management oversight of the radiation safety program which
significantly contributed to the conditions leading to the
overexposure event described in the June 15, 2004, letter and
Notice. The Licensee, however, did not contest this application of
enforcement discretion in its July 12, 2004, response to the Notice.
NRC Conclusion
The NRC has concluded that the violations occurred as stated and
neither an adequate basis for a reduction of the severity level nor
for recission or mitigation of the civil penalty was provided by the
Licensee. Consequently, the proposed civil penalty in the amount of
$19,200 should be imposed.
[FR Doc. 04-20496 Filed 9-9-04; 8:45 am]
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