United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-01-302 - Order Imposing CP

September 30, 2002

EA-01-302

Mr. Bill R. Fraser
President/Radiation Safety Officer
High Mountain Inspection Service, Inc.
P. O. Box 1508
Mills, Wyoming 82644

SUBJECT: ORDER IMPOSING CIVIL MONETARY PENALTY - $6,000

Dear Mr. Fraser:

This refers to your letter dated June 18, 2002, in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated May 7, 2002. Our letter and Notice describe a total of 10 violations identified from our inspection which concluded on January 24, 2002.

The first four violations in our Notice (Part I of the Notice) were related to two of your employees who received annual occupational exposures in excess of NRC limits in calendar year 2000. To emphasize the importance of assuring, on an ongoing basis, that you are operating your radiation safety program in accordance with NRC requirements, and the importance of prompt and comprehensive correction of violations, a civil penalty of $6,000 was proposed for those four violations. The remaining six violations were not assessed a civil penalty.

In your response you stated that the NRC did not fully and properly consider the facts presented in the February 27, 2002, predecisional enforcement conference and in your April 4, 2002, letter. Although you admitted all four violations associated with the civil penalty, you requested remission or at least significant mitigation of the civil penalty. In addition, you denied one of the violations that was not associated with the civil penalty. NRC's disposition of the disputed violation is included in Appendix B.

After consideration of your response, we have concluded, for the reasons given in Appendix A to the enclosed Order Imposing Civil Monetary Penalty, that the assessment of a $6,000 civil penalty was appropriate and in accordance with NRC's Enforcement Policy. Accordingly, we hereby serve the enclosed Order on High Mountain Inspection Service, Inc., imposing a civil monetary penalty in the amount of $6,000. Within 30 days you should either (1) pay the civil penalty in accordance with Section IV of the Order or (2) request a hearing in accordance with Section V of the Order. In addition, at the time payment is made, a statement indicating when and by what method payment was made, is to be mailed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. We will review the effectiveness of your corrective actions during a subsequent inspection.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and the enclosures will be made available in the NRC Public Document Room and electronically through the NRC's Agency wide Documents Access and Management System (ADAMS), accessible to the public through NRC's Internet web site at http://www.nrc.gov/reading-rm/adams.html.

Sincerely,

/RA/

Frank J. Congel, Director
Office of Enforcement

Docket No. 030-33887
License No. 49-26808-02

Enclosure: Order Imposing Civil Monetary Penalty

cc w/Enclosure: Wyoming Radiation Control Program Director


ENCLOSURE 1

UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of )
High Mountain Inspection Service, Inc. ) Docket No. 030-33887
Mills, Wyoming ) License No. 49-26808-02
) EA-01-302

ORDER IMPOSING CIVIL MONETARY PENALTY

I

High Mountain Inspection Service, Inc., (Licensee) is the holder of Materials License No. 49-26808-02 issued by the Nuclear Regulatory Commission (NRC or Commission) on October 3, 1995. The license authorizes the Licensee to conduct radiography activities in accordance with the conditions specified therein.

II

An inspection of the Licensee's activities was completed on January 24, 2002. The results of that 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 May 7, 2002. 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 June 18, 2002. In its response, the Licensee admitted to the violations associated with the civil penalty but asserted mitigating extenuating circumstances. Further, the Licensee stated that the NRC did not fully and properly consider the facts presented in the February 27, 2002, predecisional enforcement conference and in the licensee's letter dated April 4, 2002. The licensee requested remission or at least significant mitigation of the civil penalty.

III

After consideration of 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 Appendices to this Order, that the violations occurred as stated and that the penalty proposed for the violations designated in the Notice should be imposed.

IV

In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:

The Licensee pay a civil penalty in the amount of $6,000 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 Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.

V

In accordance with 10 C.F.R. § 2.202, the licensee, and any other person adversely affected by this Order, may request a hearing on this Order within thirty (30) days of the date of this Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, and include a statement of good cause for the extension. A request for a hearing should be clearly marked as a "Request for an Enforcement Hearing". Any request for a hearing shall be submitted to the Secretary, Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and Adjudications Staff, Washington, D.C. 20555. Copies also shall be sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555; to the Assistant General Counsel for Materials Litigation and Enforcement at the same address; to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011; and to the licensee if the hearing request is by a person other than the licensee. 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 hearing.docket@nrc.gov and also to the Office of the General Counsel either by means of facsimile transmission to 301-415-3725 or by e-mail to OGCMailCenter.Resource@nrc.gov.

If a person other than the licensee requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 C.F.R. §2.714(d).(1)

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 issue 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

/RA/

Frank J. Congel, Director
Office of Enforcement

Dated this 30thday of September, 2002


APPENDIX A

NRC EVALUATIONS AND CONCLUSION OF LICENSEE'S REQUEST FOR
REMISSION OR MITIGATION OF THE CIVIL PENALTY

On May 7, 2002, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for violations identified during an NRC inspection. High Mountain Inspection Service, Inc., (Licensee) responded to the Notice by letter dated June 18, 2002. The licensee admitted the violations but requested remission or at least significant mitigation of the proposed penalty. The NRC's evaluation and conclusion regarding the licensee's requests are as follows:

Restatement of Violation A of Part I

10 CFR 20.1201(a)(1)(i) requires, with exceptions not applicable here, that the licensee control the occupational dose to individual adults to an annual dose limit of 5 rems total effective dose equivalent.
Contrary to the above, the licensee did not limit the annual occupational dose to two adult radiographers to 5 rems, total effective dose equivalent. Specifically, the individuals received doses of 5.412 and 5.961 rems, total effective dose equivalent, for the period January 1 to December 31, 2000.
Summary of Licensee's Response to Violation A of Part I
The licensee admitted the violation with mitigating extenuating circumstances (see below). However, the licensee stated that the exposures it reported were 5,114 mrem and 5,961 mrem which are slightly different from the exposures stated in the Notice.
NRC Evaluation of Licensee's Response to Violation A of Part I
The NRC's response to the licensee's "mitigating extenuating circumstances" is below. However, the licensee reported a dose that was slightly different from the dose in the Notice. Therefore, this violation will be modified to correct the exposures. Both doses are still in excess of NRC requirements, and the basic premise of the violation remains valid.

Summary of Licensee's Request for Mitigation or Remission of the Civil Penalty

1) The NRC's press release unduly focused on the violations, and did not present a balanced picture of the significant number of items that the Licensee was currently performing satisfactorily or better. The NRC's press release has resulted in significant business losses greater than the proposed $6,000 fine.
2) The NRC's press release stated that the overexposures occurred as a result of the failure of the company's manager to follow NRC requirements. However, the Licensee presented mitigating extenuating circumstances involving the purchase of the personnel monitoring service vendor by another company. These extenuating circumstances included the vendor's unilateral change in monthly exchange period to a bimonthly periodicity, and the delay in obtaining personnel monitoring reports during the purchase. Further, daily radiation safety activities were being performed by the former Assistant Radiation Safety Officer (RSO), who was also the Vice President and a stockholder of the company. The Licensee stated that prior to January 2002, it had no reason to believe there were problems in the radiation safety program's implementation other than the overexposures identified in January 2001. The Licensee's April 4, 2002, letter, stated that the problems with the radiation safety program were a contributing factor to the dismissal of the former Assistant RSO. The Licensee believed that, in view of the Assistant RSO's position and experience, the NRC should have considered individual action against the Assistant RSO under Section VIII of the NRC's Enforcement Policy.
3) The Licensee stated it was deserving of corrective action credit. During the onsite inspection in October 2001, the NRC did not identify to the Licensee all the violations that were discussed during the January 30, 2002, exit briefing, and which were reflected in the February 12, 2002, inspection report. Thus, the Licensee contended, the corrective actions presented at the February 27, 2002, predecisional enforcement conference were extremely prompt and adequately developed considering the less than one month time frame. The Licensee stated that its "very prompt corrective actions" and "the excellent past radiation safety history" must be considered for corrective action credit.
4) The above discussions refer to the Licensee's responses to the violations in Part I of the Notice. In addition, the Licensee's response to Violation D in Part I of the Notice (violation of 10 CFR 34.42 dealing with the RSO's failure to ensure radiation safety activities were being performed in accordance with approved procedures and regulatory requirements) stated that it admitted the violation with regard to limited but not all radiation safety activities. In this regard, the Licensee also stated that this violation was nothing more than a summary of the other violations which had been discussed in Part I.

NRC Evaluation of Licensee's Request for Mitigation or Remission of the Civil Penalty

The NRC's evaluation of the Licensee's arguments is as follows:
(1) The NRC's Enforcement Policy provides that press releases are normally issued at the time the NRC issues a proposed imposition of civil penalty. The Licensee was informed of this at the predecisional enforcement conference. The NRC press release was consistent with NRC policies and procedures, and articulated the basis for the enforcement action. The Licensee's loss or potential loss of business as a result of the enforcement action is not a basis for mitigating the civil penalty.
(2) NRC Licensees are responsible for the actions of their contractors and employees, including officers and senior level employees who perform licensed activities. If violations occur because a senior company official does not adequately perform his duties, the NRC holds the Licensee responsible for the violations. In addition, the NRC places specific responsibilities and requirements on the Licensee's Radiation Safety Officer (RSO). 10 CFR 34.42 requires the RSO to ensure that radiation safety activities are performed in accordance with approved procedures and regulatory requirements in the daily operation of the license's program. Although the RSO may delegate activities to another individual, such as an Assistant RSO or a consultant, the responsibility for ensuring that operation of the program meets regulatory requirements remains with the RSO. In this case, the Licensee's RSO did not adequately review the former Assistant RSO's activities to ensure that the regulatory requirements were being met. The claimed "extenuating circumstances", arising from problems with the personnel monitoring service vendor, do not excuse the Licensee's failure to adequately oversee its radiation safety program.
As to the Licensee's assertion that the NRC should have considered individual action against the former Assistant RSO, there is no indication of deliberate misconduct by the former Assistant RSO which would warrant such action.
(3) The onsite portion of the NRC's inspection concluded in October 2001. The Licensee contends that only 3 of the 10 apparent violations were discussed during the inspection although the inspector believes that 8 of the 10 apparent violations were discussed. Eight of the 10 apparent violations were discussed with the licensee by the responsible branch chief and the inspector by telephone in late October or early November 2001. Also, after concluding the onsite inspection, the NRC staff continued its review of the issues raised by the inspection, after which time the NRC staff identified two additional apparent violations. The NRC staff informed the licensee of these changes in the apparent violations during the final exit briefing on January 30, 2002, and documented them in the February 12, 2002, inspection report.
The Licensee contends that it had developed very prompt corrective actions, considering that it had been informed of all the apparent violations less than one month prior to the February 27, 2002, predecisional enforcement conference. Notwithstanding the communication concerns raised by the licensee as discussed above, the NRC staff's basis for withholding corrective action credit was justified, however, and was described in the NRC's May 7, 2002 letter. Specifically, once the Licensee became aware in January 2001 of the overexposures, it failed to take prompt corrective action to: (1) ensure that the Licensee was meeting the conditions of its license by investigating instances where personnel exceeded 500 mrem in any one month and 350 mrem per month average; and (2) conduct an overall review of its radiation protection program to determine whether there were other requirements that it was not meeting, particularly those that may have contributed to the overexposures. If the Licensee had taken prompt corrective action for the overexposures in January 2001, it could have identified the additional violations prior to the NRC's October 2001 onsite inspection. Consistent with the Enforcement Policy, Licensees should not depend upon the NRC to identify their problems.
Contrary to the Licensee's assertion that the NRC did not consider the Licensee's "excellent" past radiation safety history, when assessing the civil penalty the NRC staff did consider the fact that the Licensee had not been the subject of escalated enforcement action within the past 2 years. See Section VI.C.2 of the Enforcement Policy.
(4) The Licensee admitted Violation D in Part I of the Notice of Violation, involving the RSO's failure to ensure that the Licensee's radiation safety activities were being performed in accordance with approved procedures and regulatory requirements. The Licensee, however, stated that the violation was not representative of all of the licensee's radiation safety activities, and that the violation is nothing more than a summary of all other violations. The Notice of Violation was clear in that the violation of 10 CFR 34.43 did not apply to all radiation safety activities, but only to specifically identified failures of the RSO: (1) to limit the annual occupational dose to two adult radiographers to 5 rems, total effective dose equivalent as required by 10 CFR 20.1201; (2) to investigate all instances where personnel exceeded 500 mrem in any one month and an average of 350 mrem per month in a calendar year as required by license condition; and (3) to review the radiation protection program content and implementation for calendar years 1999 and 2000 as required by 10 CFR 20.1101. This violation was not a mere summary of other violations cited in Part I of the Notice of Violation, but stated the RSO's failure to oversee the Licensee's radiation safety program to ensure compliance with regulatory requirements. Because the RSO's oversight failures contributed to the problem that resulted in the overexposures, this violation is part of the problem for which the civil penalty is warranted. The Licensee's April 4, 2002, response to this violation appears to focus on the use of consultant audits. Although consultant audits can be a useful tool in assisting the RSO to perform his duties, the Licensee is reminded that the RSO is still responsible under 10 CFR 34.42 for ensuring that the Licensee's radiation safety program meets regulatory requirements. See discussion in item (2), above.

NRC Conclusion

The NRC has concluded that the violations in Part I of the Notice of Violation occurred as stated and neither an adequate basis for a reduction of the severity level, nor for mitigation of the civil penalty, was provided by the Licensee. Consequently, the proposed civil penalty in the amount of $6,000 should be imposed.


APPENDIX B

EVALUATION OF VIOLATIONS
NOT ASSESSED A CIVIL PENALTY

Of the violations not assessed a civil penalty, the licensee admitted Violations A, B, C, E, and F of Part II of the May 7, 2002, Notice of Violation, and denied Violation D of the same Part.

Restatement of Violation D of Part II of the Notice of Violation

10 CFR 34.43(d) states that the licensee shall provide annual refresher safety training for each radiographer and radiographer's assistant at intervals not to exceed 12 months.
Contrary to the above, the licensee failed to provide annual refresher safety training for each radiographer and radiographer's assistant at intervals not to exceed 12 months. Specifically, for the period of January 1999 through October 3, 2001, the licensee did not provide annual safety refresher training for several employees, an interval that exceeded 12 months.

Summary of Licensee's Response to Violation D of Part II of the Notice of Violation

The Licensee denied the violation on the basis that periodic tailgate safety meetings were held, but not documented.

NRC Evaluation of Licensee's Response

The tailgate safety meetings may meet the requirements of 10 CFR 34.43(d). Implicit in the Licensee's statement is that the topics discussed during these tailgate meetings were sufficient to meet the intent of the requirement as discussed in Section 8.5 of the Licensee's license application submission as amended on September 27, 2000. Therefore, NRC will accede to the licensee's denial regarding the violation of 10 CFR 34.43(d). However, the failure to document the training is a violation of 10 CFR 34.79(b) and would be considered a minor violation. The Licensee is reminded that it must correct minor violations even though they are not normally documented by NRC.

NRC Conclusion

The NRC is withdrawing its conclusion that a violation of 10 CFR 34.43(d) occurred. However, the NRC concludes that the licensee was in violation of 10 CFR 34.79(b) and the licensee must take steps to correct this violation. Because the violation is minor, it will not be documented.


1. The most recent version of Title 10 of the Code of FederalRegulations, published January 1, 2002, inadvertently omitted the last sentence of 10 C.F.R. 2.714(d) and subparagraphs (d)(1) and (2), regarding petitions to intervene and contentions. Those provisions are extant and still applicable to petitions to intervene. Those provisions are as follows: "In all other circumstances, such ruling body or officer shall, in ruling on-(1) A petition for leave to intervene or a request for hearing, consider the following factors, among other things: (i) The nature of the petitioner's right under the Act to be made a party to the proceeding. (ii) The nature and extent of the petitioner's property, financial, or other interest in the proceeding. (iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest. (2) The admissibility of a contention, refuse to admit a contention if: (i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section; or (ii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.

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