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

May 23, 1997

EA 96-502

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

SUBJECT: ORDER IMPOSING CIVIL MONETARY PENALTY – $4,000

Dear Mr. Barnett:

This refers to your letter dated March 11, 1997 in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you on February 24, 1997. Our letter and Notice described three violations of radiography requirements related to an October 3, 1996 incident in Ponca City, Oklahoma. The violations were collectively categorized at Severity Level II.

To emphasize your responsibility for ensuring that employees meet basic radiation safety requirements, and the significance of willful violations of safety requirements associated with the October 3 incident, a civil penalty of $4,000 was proposed.

In your response, you admitted the violations, but requested that the civil penalty be remitted based on the circumstances of this case.

After consideration of your response, we have concluded for the reasons given in the Appendix attached to the enclosed Order Imposing Civil Monetary Penalty that you have not provided an adequate basis for mitigation of the penalty. Accordingly, the enclosed Order is being served on Barnett Industrial X-Ray, Inc., imposing a civil monetary penalty in the amount of $4,000.

As provided in Section IV of the enclosed Order, payment should be made within 30 days of the date of this Order, by check, draft, money order, or electronic transfer, payable to the Treasurer of the United States and mailed to Mr. James Lieberman, 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 enclosure will be placed in the NRC's Public Document Room.

Sincerely,

James Lieberman Director, Office of Enforcement

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

Enclosure: As Stated

cc w/Enclosure: State of Oklahoma

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UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of Barnett Industrial X-Ray, Inc. Stillwater, Oklahoma

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

ORDER IMPOSING CIVIL MONETARY PENALTY

I

Barnett Industrial X-Ray, Inc., (BIX or Licensee) is the holder of Materials License No. 35-26953-01 issued by the Nuclear Regulatory Commission (NRC or Commission) on December 28, 1988, and last renewed on March 21, 1996. The license authorizes the Licensee to possess sealed radioactive sources for use in conducting industrial radiography activities in accordance with the conditions specified therein.

II

An inspection and investigation of the Licensee's activities was conducted October 3, 1996, through December 9, 1996, in response to a radiography incident which the Licensee reported to the NRC. The results of this inspection and investigation 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 February 24, 1997. The Notice described 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 March 11, 1997. In its response, the Licensee admitted the violations, but requested that the civil penalty be remitted based on the circumstances of this case (see Appendix).

III

After consideration of the Licensee's response and the arguments for mitigation contained therein, the NRC staff has determined, as set forth in the Appendix to this Order, 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 $4,000 within 30 days of the date of this Order, by check, draft, money order, or electronic transfer, payable to the Treasurer of the United States and mailed to Mr. James Lieberman, Director, Office of Enforcement, U.S. Nuclear 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, 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" and shall be addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission Washington, D.C. 20555, with a copy to the Commission's Document Control Desk, Washington, D.C. 20555. Copies also shall be sent to the Assistant General Counsel for Hearings and Enforcement at the same address and to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011.

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 James Lieberman, Director Office of Enforcement

Dated at Rockville, Maryland
this 23rd day of May 1997

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APPENDIX

EVALUATION AND CONCLUSIONS

On February 24, 1997, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for violations identified during an NRC inspection and investigation. Barnett Industrial X-Ray, Inc., (BIX or Licensee) responded to the Notice on March 11, 1997. BIX admitted the violations, but requested that the civil penalty be remitted based on the circumstances of this case. The NRC's evaluation of the Licensee's request and conclusions follow:

Summary of Licensee's Request for Mitigation

BIX stated that the employees who committed the violations were amply trained in radiation safety as well as proper radiography techniques and were audited by BIX more often than required by NRC regulations. BIX further stated that it feels the "two men in question took it upon themselves to disregard what they knew to be right and legal." BIX stated that 50 percent responsibility on the part of the company, as the penalty implies ¹, is inequitable, and requested that the penalty be remitted in light of the circumstances of the case and BIX's actions in responding to and reporting the incident.

NRC Evaluation of Licensee's Request for Mitigation

The NRC recognizes that BIX's employees were fully trained and audited in accordance with NRC requirements. The NRC's Enforcement Policy, however, does not allow mitigation of a civil penalty for that reason because training and auditing are required by NRC regulations. While the NRC acknowledges that Licensee employees may have been audited more frequently than what is required by NRC requirements, it appears that such frequency was not sufficient to prevent the violations described in the Notice. NRC regulations set forth minimum auditing requirements. It is BIX's responsibility to control its activities, including auditing as necessary to ensure compliance. In that regard, it is noteworthy that BIX stated, in its March 11, 1997 response to the Notice, that it has "increased the number of jobsite audits by 100% per radiographic crew."

As to BIX's statement that the radiographers disregarded regulatory requirements, the NRC considered the radiographers' conduct in its enforcement decision. Specifically, on April 15, 1997, the NRC issued a Confirmatory Order to the radiographer prohibiting him from engaging in NRC-licensed activities for a period of three years, and a letter to the assistant radiographer reminding him that similar misconduct in the future may lead to significant enforcement action against him.

Nevertheless, the radiographers' conduct on October 3, 1996, does not relieve BIX of its responsibility as a licensee of the Commission. As noted below, the Commission has left no doubt that licensees are responsible for violations of NRC requirements regardless of whether they occurred as a result of negligence or willful misconduct. BIX's argument that it should not be held fully responsible for the actions of its employees is contrary to NRC requirements, the Enforcement Policy, and past enforcement actions.

10 CFR 34.2, defines Radiographer as "any individual who performs or who, in attendance at the site where the sealed source or sources are being used, personally supervises radiographic operations and who is responsible to the licensee for assuring compliance with the requirements of the Commission's regulations and the conditions of the license." [Emphasis added]

Section VI.A. of the Enforcement Policy states, in part, that "licensees are not ordinarily cited for violations resulting from matters not within their control, such as equipment failures that were not avoidable by reasonable licensee quality assurance measures or management controls. Generally, however, licensees are held responsible for the acts of their employees."

The Commission formally considered the responsibility issue between a licensee and its employees in its decision concerning the Atlantic Research Corporation case, CLI-80-7, dated March 14, 1980. In that case, the Commission stated, in part, that "a division of responsibility between a licensee and its employees has no place in the NRC regulatory regime which is designed to implement our obligation to provide adequate protection to the health and safety of the public in the commercial nuclear field." Therefore, the Licensee's understanding of its responsibility (i.e., 50 percent responsibility on the part of BIX) is incorrect. The NRC holds its licensees 100 percent responsible for licensed activities. To hold otherwise, would mean that BIX improperly transferred control of licensed material to its employees.

The NRC does not specifically license the management or the employees of a company; rather, the NRC licenses the entity. The licensee uses, and is responsible for the possession of, licensed material. The licensee is the entity that hires, trains, and supervises the employees. All licensed activities are carried out by employees of the licensee and, therefore, all violations are caused by employees. A licensee obtains the benefits of good employee performance and suffers the consequences of poor employee performance. Not holding the licensee responsible for the actions of its employees, whether such actions result from negligence or willful misconduct, is tantamount to not holding the licensee responsible for the use or possession of licensed material. If the NRC adopted this position, there would be less incentive for licensees to monitor their own activities to assure compliance because licensees could attribute noncompliance to employee negligence or misconduct.

With regard to BIX's argument that its actions in responding to and reporting the incident should be considered, the NRC notes that BIX's actions were considered in proposing the civil penalty. In fact, as stated in the NRC's February 24, 1997 letter, BIX's prompt voluntary reporting of the incident to the NRC and its prompt and comprehensive corrective actions formed the basis for proposing a civil penalty limited to one-half of the base value for a Severity Level II problem. Thus, the NRC believes that the circumstances of this case were appropriately considered in determining the proposed penalty amount.

NRC Conclusion

The NRC rejects BIX's arguments that it should not be held fully responsible for the violations, and believes that BIX's actions in responding to and reporting the incident were appropriately considered in determining the proposed penalty amount. The NRC concludes, therefore, that the Licensee has not provided adequate justification for a reduction or remission of the proposed civil penalty. Consequently, the proposed civil penalty in the amount of $4,000 should be imposed by order.

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¹ The proposed penalty was one half of the base value for a Severity Level II problem.