EA-97-291 - Anheuser-Busch, Inc.

September 3, 1997

EA 97-291

Mr. John Nevin, Plant Manager
Anheuser-Busch, Inc.
One Busch Place
St. Louis, MO 63118-1852

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY – $2,750 (NRC Inspection Report No. 999-90003/97006(DNMS))

Dear Mr. Nevin:

This refers to the special safety inspection conducted from May 16 through June 23, 1997, at Anheuser-Busch, Inc. (ABI) in St. Louis, Missouri to review the circumstances surrounding the disposal of two industrial gauging devices which contained 100 millicuries (3.7 GBq) of americium-241 in sealed form and the resultant loss of one source. The details of the incident are discussed in NRC Inspection Report No. 999-90003/97006(DNMS), dated June 27, 1997. By letter dated July 24, 1997, ABI responded to the apparent violations described in the inspection report and did not request a predecisional enforcement conference.

Based on the information developed during the inspection and the information that ABI provided in response to the inspection report, the NRC has determined that violations of NRC requirements occurred. The violations involving the failure to properly transfer or dispose of generally licensed material and unauthorized dismantling of devices containing licensed material are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty.

Incumbent upon each company possessing byproduct material is the responsibility to protect public health and safety by ensuring that radioactive materials are controlled at all times. These violations are of significant regulatory concern because ABI personnel overlooked tags attached to the devices which specified that removal from service was to be performed only by authorized individuals. Furthermore, the failure to effectively control material is a significant safety concern because it can lead to the inadvertent release of radioactive material to the public domain. The violation represents a failure to control access to licensed materials for radiation purposes and is categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600, at Severity Level III.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement actions within the last two inspections, the NRC considered whether credit was warranted for Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. Credit was warranted in that your actions were prompt and comprehensive. The NRC recognizes that application of the civil penalty assessment process would normally not result in a civil penalty in this case. Nevertheless, the NRC is exercising discretion in accordance with Section VII.A.1(g) of the Enforcement Policy and is proposing a civil penalty of $2,750. Discretion is being exercised because licensed material was not controlled and was released to the public domain.

Therefore, to emphasize the need to strictly control licensed material, 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 (Notice) in the base amount of $2,750 for the Severity Level III violation.

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 and the date when full compliance was achieved is already adequately addressed on the docket in an ABI letter dated July 24, 1997. Therefore, you are not required to provide any additional statement or explanation pursuant to 10 CFR 2.201 unless the description already provided does not accurately reflect your corrective actions or your position. You are required to respond to the proposed civil penalty pursuant to 10 CFR 2.205 and for that response, you should follow the directions 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 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 a redaction.

Sincerely,

Original signed by James Caldwell for A. Bill Beach Regional Administrator

Docket No. 999-90003
General License

Enclosure: Notice of Violation and
Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Anheuser-Busch, Inc. St. Louis, Missouri

Docket No. 999-90003 General License EA 97-291

During an NRC inspection conducted from May 16 through June 23, 1997, 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 violations and associated civil penalty are set forth below:

A. 10 CFR 31.5(c)(8) requires, in part, that any person who acquires, receives, possesses, uses or transfers byproduct material in a device pursuant to a general license shall, except as provided in 10 CFR 31.5(c)(9), transfer or dispose of the device containing byproduct material only by transfer to persons holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to receive the device.

Contrary to the above, on or about May 2, 1997, the licensee disposed of two Peco Promax 1000 gauges each containing a 100 millicurie (3.7 Gbq) americium-241 sealed source and this disposal was not made by transfer to a person holding a specific license pursuant to 10 CFR Parts 30 and 32 or to an Agreement State licensee, and the exceptions in 10 CFR 31.5(c)(9) did not apply. Specifically, two devices were disposed of in an unlicensed scrap metal processing facility. (01013)

B. 10 CFR 31.5(c)(1) requires that any person who acquires, receives, possesses, uses, or transfers byproduct material in a device pursuant to a general license shall assure that all labels affixed to the device at the time of receipt and bearing a statement that removal of the label is prohibited are maintained thereon and shall comply with all instructions and precautions provided by such labels. The instructions and precautions provided by the label affixed to the Peco Promax 1000 gauge containing 100 millicuries (3.7 Gbq) of americium-241 specifically stated that removal of the labels is prohibited and that dismantling of the devices shall be performed by persons specifically licensed by the Nuclear Regulatory Commission.

Contrary to the above, on or about May 2, 1997, the licensee did not comply with all instructions and precautions provided on the label affixed to the devices in that the licensee dismantled two devices, located on Line 36, and dismantling was done by persons not specifically licensed by the Nuclear Regulatory Commission. (01023)

These violations represent a Severity Level III problem (Supplement VI).
Civil Penalty – $2,750.

The NRC has concluded that information regarding the reason for the violation, 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 an ABI letter dated July 24, 1997. However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description 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, NRC Region III, 801 Warrenville Road, Lisle, Illinois 60532-4351, within 30 days of the date of the letter transmitting this Notice of Violation.

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 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: 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, IL 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 a 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 3rd day of September 1997