United States Nuclear Regulatory Commission - Protecting People and the Environment

EA-97-391 - Bowser-Morner, Inc.

October 8, 1997

EA 97-391

Mr. Kenneth A. Taylor
Senior Vice President
Director of Services
Bowser-Morner, Inc.
Dayton, OH 45424

SUBJECT:  NOTICE OF VIOLATION 
          (NRC Inspection Report No.  030-12676/97001(DNMS))

Dear Mr. Taylor:

This refers to the special inspection conducted on August 5, 1997, with continuing NRC review through August 13, 1997, at the Bower-Morner, Inc. (BMI), Dayton, Ohio facility. The purpose of the inspection was to review an incident which resulted in damage to a moisture-density gauge on July 29, 1997, at a construction site in Corwin, Ohio. As described in the NRC inspection report sent to you on August 28, 1997, one apparent violation of NRC requirements was identified during the inspection. You were given the option of requesting a predecisional enforcement conference or submitting a written response to the apparent violation. In your letter dated September 22, 1997, you chose to submit a written response.

Based on the information developed during the inspection and the information provided in BMI letters dated August 27, 1997 and September 22 , 1997, the NRC has determined that a significant violation of NRC requirements occurred. This violation is cited in the enclosed Notice of Violation (Notice) and the circumstances surrounding it are described in detail in the subject inspection report.

The violation, failure to secure or maintain constant surveillance of licensed material, occurred because the gauge operator did not follow BMI radiation safety procedures. The circumstances of the incident indicate that the operator exercised poor judgement by failing to ensure that the moisture density gauge was appropriately safeguarded. Leaving the device containing NRC licensed material unsecured and uncontrolled in an unrestricted area with the source rod in the extended position is of significant safety concern to the NRC. The source rod was damaged when the device was run over by construction equipment and it was fortuitous that the source did not separate from the rod. Incumbent upon each NRC licensee and its employees is the responsibility to protect public health and safety by ensuring that all NRC requirements are met, and in particular, that NRC licensed material is controlled so that it is not lost or damaged and does not constitute a hazard to the public. This violation represents a significant failure to control licensed material and is categorized at Severity Level III in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $2,750 is considered for a Severity Level III Violation. Your facility has not been the subject of NRC escalated enforcement action; therefore, 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. In this case, NRC determined that credit was warranted based on the following corrective actions: (a) the operator was suspended for two days without pay; (b) upon return to BMI, the operator was reinstructed in BMI procedures and was required to demonstrate to the Radiation Safety Officer the transportation and securement procedures; (c) the incident was discussed with the field technicians/operators during the August 20, 1997, safety meeting; (d) a memorandum emphasizing proper material control procedures was sent to all BMI field technicians and to BMI branch offices; and (e) to further heighten awareness and to emphasize the importance of maintaining control of licensed material, a description of the incident has been incorporated into the annual refresher training program.

Therefore, to encourage prompt and comprehensive corrective actions, I have decided not to propose a civil penalty in this case. However, significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reasons for the violation, and the corrective actions taken and planned to correct the violation and prevent recurrence are already adequately addressed in BMI letters dated August 27, 1997 and September 22, 1997. Therefore, you are not required to respond to this letter 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, the enclosed Notice, and your response if you choose to respond, will be placed in the NRC Public Document Room.

                             Sincerely, 

                             Original Signed By
                             A. Bill Beach
                             Regional Administrator

Docket No. 030-12676
License No. 34-17390-01

Enclosure: Notice of Violation


NOTICE OF VIOLATION
Bowser-Morner, Inc.                                        Docket No. 030-12676
Dayton, Ohio                                               License No.  34-17390-01
                                                           EA 97-391

During an NRC inspection conducted on August 5 - 13, 1997, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the violation is listed below:

10 CFR 20.1801 requires that the licensee secure from unauthorized removal licensed materials that are stored in an unrestricted area. 10 CFR 20.1802 requires that the licensee control and maintain constant surveillance of licensed material that is in an unrestricted area and that is not in storage. As defined in 10 CFR 20.1003, an unrestricted area means an area, access to which is neither limited nor controlled by the licensee.

Contrary to the above, on July 29,1997, the licensee did not secure from unauthorized removal or limit access to a Troxler moisture/density gauge containing licensed material, nominally 8 millicuries (296 Mbq) of cesium-137 and nominally 40 millicuries (1.48 GBq) of americium-241 in sealed sources, at a construction site in Corwin, Ohio, an unrestricted area, nor did the licensee control and maintain constant surveillance of this licensed material. (01013)

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

The NRC has concluded that information regarding the reasons for the violation, and the corrective actions taken and planned to correct the violation and prevent recurrence is already adequately addressed in a letters from Bowser-Morner, Inc. dated August 27, 1997 and September 22, 1997. However, you are required to respond to the provisions of 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, 801 Warrenville Road, Lisle, Illinois 60532-4351, within 30 days of the date of the letter transmitting this Notice of Violation.

Dated at Lisle, Illinois
this 8th day of October 1997

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