EA-95-227 - The Duriron Company, Inc.

February 5, 1996

EA 95-227

Mark E. Armstrong, Vice President
and General Manager
The Duriron Company, Inc.
Post Office Box 1813
Dayton, Ohio 45401-1813

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,500 (NRC INSPECTION REPORT NO. 030-05712/95001(DNMS))

Dear Mr. Armstrong:

This refers to the routine safety inspection conducted during the period September 11 - 29, 1995, to review the industrial radiography program operated by The Duriron Company, Inc. (Duriron), at 700 North Irwin Street, Dayton, Ohio. A copy of the inspection report was mailed to Duriron on October 20, 1995.

Based on the information developed during the inspection and the information provided in letters from Duriron dated September 20, December 1, and December 14, 1995, the NRC has determined that a significant violation of NRC requirements occurred (Violation A). This violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) and the circumstances surrounding it are described in detail in the subject inspection report.

Following the arrival of the NRC inspector at your facility, the Radiation Safety Officer (RSO) voluntarily told the inspector that he had not performed leak tests of NRC-licensed materials (sealed sources of cobalt-60 and iridium-192). The RSO also informed the inspector that he failed to take any corrective action after discovering the violation. The RSO attributed the violation to the competing demands of his daily assignments in the Non-Destructive Testing (NDT) Department and his responsibilities as RSO.

Further, the RSO indicated he did not inform management that safety-related activities were not accomplished. The RSO's knowledge of the leak test requirement, his knowledge that a violation existed, and his failure to take immediate corrective action, collectively indicate at least careless disregard of NRC requirements.

Violation A is of significant regulatory concern because the careless disregard demonstrated by the RSO evidences a willful violation. Willful violations, and in particular a willful violation committed by a licensee official, are not acceptable. Incumbent upon each NRC licensee is the responsibility to protect the public health and safety, and the health and safety of its employees, by ensuring that all NRC requirements are met. In this instance, a regulatory requirement important to safety (i.e. leak testing) was not performed. Furthermore, the lack of communication between the RSO and management concerning the competing demands of the RSO's responsibilities delayed the timely correction of the violation. To allow a self-identified violation to go uncorrected for a significant period of time is indicative of poor management oversight of the radiation safety program. Therefore, Violation A has been categorized at Severity Level III in accordance with the former "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), 10 CFR Part 2, Appendix C (which was in effect for a significant duration of the violation).

The NRC recognizes that actions were taken after the inspection to correct the violation and prevent recurrence. These actions included: (1) providing the RSO with a radiographer's assistant in the NDT laboratory; (2) developing a tracking system to monitor monthly requirements (e.g. leak tests, inventories, surveys); and (3) conducting monthly audits by an Environmental Health & Safety Engineer to confirm compliance and improve communication among management, RSO, and production departments.

Notwithstanding the corrective actions described above, in order to emphasize that willful violations are not acceptable, to emphasize the importance of correcting violations as soon as they are identified, and the need for effective management oversight of the radiation safety program, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $2,500.

The base civil penalty amount for a Severity Level III violation is $5,000. The civil penalty adjustment factors set forth in the Enforcement Policy were considered. The base civil penalty was mitigated by 50 percent because the RSO identified the violation and his candor aided the NRC in identifying the root cause of the violation. Although the long term corrective actions appear to be comprehensive, immediate corrective actions were not taken once the violation was identified by the RSO (i.e., an NRC inspection was required before acceptable action was taken); therefore, neither escalation nor mitigation was warranted for the corrective action adjustment factor. No adjustment to the base civil penalty was made for the past performance adjustment factor because, while your past history has been good, it is inappropriate to mitigate the civil penalty for this factor in cases involving willful violations. The remaining civil penalty adjustment factors were considered and no further adjustment was necessary. Therefore, on balance the base civil penalty was mitigated 50 percent. You should be aware that a substantially higher civil penalty could have been proposed had the violation been processed under the NRC's current Enforcement Policy, "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

Violation B, which involves the failure to perform inventories of sealed sources, is categorized at Severity Level IV in accordance with the NRC Enforcement Policy and a civil penalty is not proposed for this violation. In addition, the inspection identified several violations pertaining to the failure to retain records of: (1) inspection and maintenance of radiographic devices in violation of 10 CFR 34.28(b); (2) tests of the alarm system for the permanent radiographic installation in violation of 10 CFR 34.29(c); and, (3) training and field audits of radiographers in violation of 10 CFR 34.31(c). These failures constitute violations of minor significance and are treated as non-cited violations, consistent with Section VII.B.1 of the previous NRC Enforcement Policy. Also, the inspection found that the precautionary signs posted in accordance with 10 CFR 20.1902(b) and 10 CFR 34.42 had significantly deteriorated.

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violations and prevent recurrence is already adequately addressed on the docket in your December 1 and 14, 1995 responses to Inspection Report No. 030-05712/95001. Therefore, you are not required to respond to the provisions of 10 CFR 2.201 unless the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosure, and your response, if you choose to reply, will be placed in the NRC Public Document Room (PDR). To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be placed in the PDR without redaction.

The responses directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Public Law No. 96-511.

Sincerely, Hubert J. Miller Hubert J. Miller

Docket No. 030-05712
License No. 34-06398-01

Enclosure: Notice of Violation and Proposed
Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

The Duriron Company, Inc. Dayton, Ohio

Docket No. 030-05712 License No. 34-06398-01 EA 95-227

During an NRC inspection conducted during the period September 11 - 29, 1995, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," 10 CFR Part 2, Appendix C, 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 violations and associated civil penalty are set forth below:

A. Violation Assessed a Civil Penalty

10 CFR 34.25(b) requires that each sealed source be tested for leakage at intervals not to exceed six months.

Contrary to the above, the licensee did not leak test its sealed sources at intervals not to exceed six months. Specifically:

1. A nominal 33 curie (1.22 TBq) cobalt-60 sealed source (serial number 2146) was not leak tested from January 7, 1994, to September 11, 1995, and

2. Two nominal 100 curie (3.7 TBq) iridium-192 sealed sources (serial numbers A3872 and A3873) were not tested for leakage from January 26, 1994, to September 11, 1995. (01013)

This is a Severity Level III violation (Supplement VI).
Civil Penalty - $2,500.

B. Violation Not Assessed a Civil Penalty

10 CFR 34.26 requires, in part, that the licensee conduct a quarterly inventory to account for all sealed sources.

Contrary to the above, from June 10, 1994, to September 11, 1995, an interval encompassing at least four quarterly periods, the licensee did not conduct an inventory to account for all of its sealed sources. Specifically, five iridium-192 sealed sources that were in storage were not included in the quarterly inventory. (02014)

This is a Severity Level IV violation (Supplement VI).

The NRC has concluded that information regarding the reason for the violations, the corrective actions taken and planned to correct the violation and prevent recurrence and the date when full compliance was achieved is already adequately addressed on the docket in your December 1 and 14, 1995 responses to Inspection Report No. 030-05712/95001. However, The Duriron Company, Inc. (Licensee) is required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to a Notice of Violation," and send it to the U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, D.C. 20555 with a copy to the Regional Administrator, Region III, within 30 days of the date of the letter transmitting this Notice of Violation (Notice).

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 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 violations 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 III, 801 Warrenville Road, Lisle, Illinois 60532-4351.

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. However, if you find it necessary to include such information, you should clearly indicate the specific information that you desire not to be placed in the PDR, and provide the legal basis to support your request for withholding the information from the public.

Dated at Lisle, Illinois
this 5th day of February 1996