EA-96-502 - Barnett Industrial X-Ray, Inc.

February 24, 1997

EA 96-502

Mr. Loyd Barnett, President
Barnett Industrial X-Ray, Inc.
P.O. Box 1991
Stillwater, Oklahoma 74076

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $4,000 (NRC Inspection Report No. 030-30691/96-01; NRC Investigation Report 4-96-054)

Dear Mr. Barnett:

This refers to the matters discussed with you and Mr. Todd Barnett at a predecisional enforcement conference conducted on January 6, 1997 in the NRC's Region IV office. The conference was conducted to discuss apparent violations related to an October 3, 1996 incident in Ponca City, Oklahoma involving radiography personnel employed by Barnett Industrial X-Ray (BIX). The apparent violations related to this incident, and the results of an investigation conducted by the NRC's Office of Investigations to determine whether the violations were willful, were described in an inspection report issued on December 23, 1996. As noted in the inspection report, BIX conducted a prompt investigation and reported the incident to the NRC by telephone on the morning that it occurred.

The October 3, 1996 incident involved a BIX radiographer and radiographer's assistant who were dispatched to an oil refinery to perform radiography on two welds. After the second of two radiographic exposures, the radiographer's assistant was in the process of disassembling the radiography equipment when he discovered that the radioactive source in the exposure device was not fully retracted to its shielded position. This would have been discovered earlier had these individuals taken the required steps of wearing alarm ratemeters and conducting a radiation survey prior to disassembling the equipment. Based on after-the-fact evaluations, this incident is not believed to have resulted in radiation exposures above the NRC's limits. That notwithstanding, there were serious violations of NRC requirements associated with this incident that had the potential to result in far more serious radiation exposures.

As a result of the information developed during the NRC's inspection and investigation and the information that you provided during the conference, the NRC has determined that the following three willful violations of NRC requirements occurred: 1) a failure of both individuals to wear personal radiation monitoring devices, including an alarm ratemeter; 2) a failure to conduct a survey using a survey instrument to assure that the source had been returned to its shielded position; and 3) a failure on the part of the radiographer to adequately supervise his assistant. Compliance with these requirements would have prevented this incident from occurring. It is our belief that these individuals deliberately chose not to utilize personal dosimetry devices because they were pressed for time and that the radiographer demonstrated careless disregard for the requirement to supervise his assistant.

Individually, each of these violations is of significant regulatory concern and could have been classified at Severity Level III because they circumvented three separate and distinct safety barriers that are designed to protect workers and members of the public from inadvertent and potentially significant radiation exposures. Therefore, given the seriousness of the three violations which involved basic radiation protection, the willfulness associated with the violations, and the fact that they were related to an actual event, these violations are of very significant regulatory concern and, therefore, have been collectively categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level II problem.

The NRC acknowledges BIX's actions in response to this incident and subsequent corrective actions, including: 1) a prompt investigation of the incident to assess radiation exposures; 2) prompt disciplinary action against the involved individuals; 3) prompt notification to the NRC; 4) a mandatory safety meeting with all employees to discuss this incident and the violations identified by BIX; 5) increased audits of radiography personnel; and 6) development of a formal disciplinary program and the communication of that program to employees. In addition, based on our inspections, it appears that BIX has maintained a radiation safety program in compliance with NRC requirements and with an appropriate emphasis on safety. Nonetheless, your radiographer and radiographer's assistant in this case committed serious violations which raise a concern about the effectiveness of BIX's control of licensed activities.

In accordance with the Enforcement Policy, a Severity Level II violation should normally result in a civil penalty regardless of identification and corrective action. The base value for a Severity Level II problem is $8,000. However, given the circumstances of this case, the NRC is exercising enforcement discretion in accordance with Sections VII.A.1 and VII.B.6 of the Enforcement Policy by mitigating the civil penalty to $4,000. This amount is less than the base value for a Severity Level II problem given BIX's action in voluntarily and promptly informing the NRC of the results of its preliminary incident investigation, as well as BIX's initiative in taking prompt and comprehensive corrective action.

Therefore, to emphasize to you and to other licensees: 1) the responsibility of ensuring that employees meet basic radiation safety requirements, and 2) the significance of the willful violations of safety requirements associated with the October 3, 1996 incident, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Regulatory Effectiveness, Program Oversight, Investigations and Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of $4,000. Actions against the individuals involved in this incident will be considered separately.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response will be placed in the NRC Public Document Room.

Sincerely,

org signed by J. E. Dyer Acting Regional Administrator

Docket No. 030-30691
License No. 35-26953-01

Enclosure:
Notice of Violation and Proposed Imposition of Civil Penalty

cc w/Enclosure:
State of Oklahoma

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Barnett Industrial X-Ray, Inc. Stillwater, Oklahoma

Docket No. 030-30691 License No. 35-26953-01 EA 96-502

During an NRC inspection conducted October 3 through December 9, 1996, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the Nuclear Regulatory Commission proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular problem and associated civil penalty is set forth below:

A. 10 CFR 34.43(b) requires, in part, the licensee to ensure that a survey with a calibrated and operable radiation survey instrument is made after each exposure to determine that the sealed source has been returned to its shielded position. The survey must include the entire circumference of the radiographic exposure device and the source guide tube.

Contrary to the above, on October 3, 1996, a radiographer's assistant did not perform a survey after a radiographic exposure to determine that the sealed source had been returned to its shielded position. (01012)

B. 10 CFR 34.33(a) requires, in part, that the licensee not permit any individual to act as a radiographer or radiographer's assistant unless, at all times during radiographic operations, the individual wears a direct-reading pocket dosimeter, an alarm ratemeter, and either a film badge or a thermoluminescent dosimeter.

Contrary to the above, on October 3, 1996, neither a radiographer nor his radiographer's assistant wore a direct-reading pocket dosimeter, alarm ratemeter, and a film badge or thermoluminescent dosimeter while conducting radiographic operations. (01022)

C. 10 CFR 34.44 requires that whenever a radiographer's assistant uses radiographic exposure devices, uses sealed sources or related source handling tools, or conducts radiation surveys required by 10 CFR 34.43(b) to determine that the sealed source has returned to the shielded position after an exposure, he shall be under the personal supervision of a radiographer. The personal supervision shall include: (a) the radiographer's personal presence at the site where sealed sources are being used; (b) the ability of the radiographer to give immediate assistance if required; and (c) the radiographer watching the assistant's performance of the above referred-to operations.

Contrary to the above, on October 3, 1996, a radiographer's assistant operated a radiographic exposure device without the personal supervision of a radiographer at the Conoco Oil refinery in Ponca City, Oklahoma. Specifically, the supervising radiographer failed to observe the assistant retract a sealed source after a radiographic exposure was completed. The radiographer also failed to observe the assistant as he approached the device, retrieved the film, and attempted to disassemble the equipment. As a result a radiographer failed to notice that the assistant did not perform a survey of the exposure device and had not secured the sealed source assembly inside the exposure device in a fully shielded position. (01032)

These violations represent a Severity Level II problem (Supplement VI).
Civil Penalty – $4,000

Pursuant to the provisions of 10 CFR 2.201, Barnett Industrial X-Ray, Inc., (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty by letter addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, with a check, draft, money order, or electronic transfer payable to the Treasurer of the United States in the amount of the civil penalty proposed above, or the cumulative amount of the civil penalties if more than one civil penalty is proposed, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, letter with payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: Mr. James Lieberman, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

Because your response will be placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at Arlington, Texas,
this 24th day of February 1997