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

April 12, 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: ORDER IMPOSING CIVIL MONETARY PENALTY - $2,500

Dear Mr. Armstrong:

This refers to the letter dated February 19, 1996, from The Duriron Company, Inc. (Duriron), in response to the Notice of Violation and Proposed Imposition of Civil Penalty (Notice) sent to you by our letter dated February 5, 1996. Our letter and Notice described two violations that were identified during an NRC inspection conducted during September, 1995.

The first violation, for failing to leak test sealed sources at intervals specified by 10 CFR 34.25(b) (Violation A), was considered to represent careless disregard of NRC requirements. That violation was categorized at Severity Level III and a civil penalty of $2,500 was proposed to emphasize that: willful violations are not acceptable, violations must be immediately corrected; and, management oversight of the NRC-licensed programs must be effective.

The second violation concerned the failure to inventory NRC-licensed material at the intervals specified by 10 CFR 34.26 (Violation B). Violation B was categorized at Severity Level IV and a civil penalty was not assessed.

In the February 19, 1996 response, Duriron admitted Violation A, but contended that the violation was at worst the result of negligence and did not represent willfulness or careless disregard. Duriron requested the NRC recategorize the severity level of Violation A from Severity Level III to IV. Duriron also requested that the civil penalty be either partially or fully mitigated. Duriron denied Violation B in the February 19, 1996 response and stated that visual surveys were conducted, but the notes of these surveys were not completed or transcribed in the correct format.

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 the February 19, 1996 letter from Duriron did not present any new information that would: affect the categorization of Violation A at Severity Level III; cause the civil penalty for Violation A to be either partially or fully mitigated; or provide a basis to withdraw Violation B. Accordingly, we hereby serve the enclosed Order on The Duriron Company, Inc., imposing a civil monetary penalty in the amount of $2,500. 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 the attention of 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.

Should you have any questions concerning this matter, please contact me at (301) 415-2741.

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

Sincerely, James Lieberman, Director Office of Enforcement

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

Enclosures: As Stated

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UNITED STATES
NUCLEAR REGULATORY COMMISSION

In the Matter of THE DURIRON COMPANY, INC. Dayton, Ohio

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

ORDER IMPOSING CIVIL MONETARY PENALTY

I

The Duriron Company, Inc. (Licensee) is the holder of Materials License No. 34-06398-01 which was first issued by the Nuclear Regulatory Commission (NRC or Commission) on May 17, 1969. The license was last renewed on November 15, 1994, and is scheduled to expire on November 30, 1999. The license authorizes the Licensee to possess cobalt-60 and iridium-192, in sealed sources, to perform industrial radiography at the Licensee's facility at 450 North Findlay Street, Dayton, Ohio, in accordance with the conditions specified therein.

II

An inspection of the Licensee's activities was conducted from September 11 to September 29, 1995. The results of this inspection 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 5, 1996. The Notice states the nature of the violation, the provision of the NRC's requirements that the Licensee had violated, and the amount of the civil penalty proposed for the violation.

The Licensee responded to the Notice in a letter dated February 19, 1996, and admitted the violation. In its response, the Licensee contested the characterization of the violation as being "willful" or representing "careless disregard," and requested that the severity level of the violation be reduced. The Licensee also requested that the civil penalty be partially or fully mitigated.

III

After consideration of the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined, as set forth in the Appendix to this Order, that the violation was correctly characterized as representing careless disregard and was willful in nature, and the severity level of the violation was properly categorized at Severity Level III. Furthermore, the amount of the civil penalty was correctly affixed, the civil penalty should not be partially or fully mitigated, and that the penalty proposed for the violation 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 $2,500 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 the attention of 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 III, 801 Warrenville Road, Lisle, Illinois 60532-4351.

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 issue to be considered at such hearing shall be:

Whether, on the basis of the violation 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 12th day of April, 1996

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APPENDIX
EVALUATION AND CONCLUSION

On February 5, 1996, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for violations identified during a September 1995, NRC inspection. The Duriron Company, Inc. (Licensee) responded to the Notice on February 19, 1996. The Licensee admitted Violation A, the violation assessed a civil penalty. The Licensee contended that Violation A was caused by, at the most, the negligence of the Radiation Safety Officer (RSO) and was not a result of careless disregard or willfulness as described in the NRC's February 5, 1996 letter transmitting the Notice to the Licensee. The Licensee requested that the severity level of the violation be reduced from III to IV. The Licensee also requested that the civil penalty be partially or fully mitigated because: the violation was not willful or a result of careless disregard; the Licensee has a good performance history; and, the extensive corrective actions implemented by the Licensee after the violation was identified. The NRC's evaluation and conclusion regarding the Licensee's requests are as follows:

Restatement of Violation A

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.

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

Summary of Licensee's Response to Violation A

In the response letter dated February 19, 1996, the Licensee admitted the violation and requested the NRC reconsider the Severity Level III categorization of the violation because the violation represented neither willfulness nor careless disregard.

The Licensee stated that the NRC informed it that the Notice of Violation and Proposed Imposition of Civil Penalty - $2,500 was processed under the 1992 (emphasis added) edition of the NRC Enforcement Policy, and under that edition, "a willful violation involves 'careless disregard of requirements, deception, or other indication of willfulness,' 10 CFR Part 2, Appendix C, Section IV.C.." Citing the same paragraph from the 1992 edition, the Licensee stated that the reference to negligence was deleted since negligence is not willful. The Licensee also pointed out that daily radiation surveys were made and stated that the daily surveys have not detected any contamination. The Licensee further stated that records of daily surveys indicate compliance with NRC requirements.

As an additional example of an attempt to show that the RSO did not act with careless disregard, the Licensee discussed an attempt to make required leak tests of sealed sources, stating some samples were collected, but inadvertently were not submitted for analysis in a timely fashion.

In conclusion, the Licensee contended that without willful conduct, the violation is correctly categorized at Severity Level IV rather than Severity Level III.

NRC Evaluation of Licensee's Response to Violation A

The Licensee is in error in its statement that the NRC informed it that the enforcement action was processed under the 1992 edition of the NRC Enforcement Policy. The two examples of Violation A began on January 7 and January 26, 1994, respectively. Therefore, the controlling edition of the NRC Enforcement Policy was published in 10 CFR Part 2, Appendix C, effective on January 1, 1994, which was the Enforcement Policy in effect for a significant duration of the violation, as stated by the NRC in its February 5, 1996 letter to the Licensee. Nevertheless, the Licensee is correct in the assertion that mere negligence is not a form of willfulness for purposes of the NRC Enforcement Policy.

The 1994 Enforcement Policy, Section IV.C, provides that the severity level of a violation may be increased if the circumstances surrounding the matter involve careless disregard or other indication of willfulness. Further, the term "willfulness" embraces a spectrum of violations including careless disregard. Also, the position and responsibilities of the individual involved in the violation, e.g., licensee official, will be considered in assessing the severity level of a violation.

In any NRC-licensed radiation safety program, the RSO is a licensee's focal point for radiation safety activities. The RSO and senior managers of a licensee are considered by the NRC to be responsible for implementing and maintaining the radiation safety program. In this case, the Licensee's current RSO was approved when License Amendment No. 14 was issued by the NRC on May 18, 1988.

The Licensee's NRC-licensed program was operated in a safe manner with a minimum of violations from May 18, 1988, until January 1994, at which time the leak tests of sealed sources was stopped. The RSO attributed this turn of events to increased demands on his time as a supervisory radiographer. The NRC inspection established that the RSO knew the Licensee was required to perform leak tests at specified intervals because the RSO told the NRC inspector that he understood the requirement. Discussions with the RSO and a review of records indicated that leak tests were not performed after January 1994. Further, the RSO told the NRC inspector that: (1) he knew the NRC required sealed sources to be leak tested; (2) he knew the leak test requirement was not being fulfilled; (3) he did not promptly implement corrective action to insure that leak tests were performed; and, (4) he had not informed Licensee managers of his need for assistance in either production radiography or the radiation safety program. Considering the RSO's statements to the NRC inspector, along with the position and responsibilities of the RSO for implementing the Licensee's radiation safety program, the NRC considers the RSO's actions to represent willful misconduct. The RSO demonstrated at least careless disregard of NRC requirements, not merely negligent conduct as advanced by the Licensee.

The Licensee also argues that daily radiation surveys would identify any leakage from a sealed source and the Licensee had not identified any loss of containment through daily surveys. The Licensee is incorrect in this statement as a direct radiation survey would not identify leakage since it does not distinguish between the radiation field emitted from an unbreached sealed source or that from a leaking source. Therefore, daily surveys are not a substitute for required leak tests.

The Licensee's discussion of an attempt to make required leak tests of sealed sources to demonstrate that the RSO was not acting with careless disregard is not persuasive when the Licensee stated that some samples were collected, but inadvertently were not submitted for analysis. It is true that leak test samples were gathered. However, the samples were not marked with the identity of the source tested. Therefore, the RSO was unable to correlate a sealed source with a specific sample. Based on a lack of identity of the samples and inability to correlate samples to sources, test samples were not submitted for analysis. It appears that the RSO's decision not to submit the test samples was based on the problems with the samples and not an inadvertent error on the part of the RSO as contended by the Licensee.

In conclusion, the Licensee did not offer any new information that would cause the NRC to withdraw Violation A or reduce the severity level of the violation.

Summary of Licensee's Request for Mitigation

The Licensee contended that the civil penalty should be mitigated because of the Licensee's demonstrated good performance, having had only one minor recordkeeping violation during the previous 11 NRC inspections. The Licensee further stated that the acknowledged cooperation of the Licensee's Radiation Safety Officer (RSO) during the inspection signifies that there was no attempt to conceal any violations from the inspector and that records the RSO provided to the inspector demonstrate compliance with NRC requirements. Finally, the Licensee asks the NRC to reconsider the civil penalty because of the corrective actions implemented to prevent recurrence of the violations.

NRC Evaluation of Licensee's Request for Mitigation

The Licensee's good performance was considered in assessing the civil penalty adjustment factor for past performance. However, the NRC does not expect its licensees to willfully violate its requirements; therefore, it is inappropriate to make any adjustment for a licensee's good past performance when assessing a potential civil penalty for a willful violation.

The Licensee argued that the civil penalty should also be mitigated because the RSO cooperated with the NRC inspector and he did not attempt to conceal any violations from the inspector. The NRC acknowledged the RSO's cooperation. However, the NRC expects its licensees and their employees to act with complete candor when dealing with the NRC; thus mitigation is not warranted. A basis for mitigation would only be associated with self-identification of the violation by a licensee or prompt and extensive corrective actions. Mitigating credit was given to the Licensee in assessing the civil penalty adjustment factor for self-identification of a violation. Corrective action is discussed in the following paragraph.

The Licensee also asked the NRC to consider mitigating the civil penalty because of the corrective actions that have been implemented to prevent recurrence of the violation. The NRC considered the Licensee's long term corrective action in assessing the civil penalty adjustment factor for corrective action. The NRC recognized that the actions to prevent recurrence were comprehensive and the NRC would normally mitigate a civil penalty for such corrective measures. However, the Licensee's RSO was aware of the violation for more than one year and he did not take any action to promptly correct the violation. A failure to take immediate corrective action would normally be considered as an escalating factor in assessing a civil penalty. In this case, escalation for failing to perform immediate corrective actions is offset by equal mitigation for the long term actions. Therefore, the amount of the base civil penalty was not adjusted for the corrective action factor.

The Licensee did not offer any new information that would cause the NRC to mitigate or remit the civil penalty for Violation A.

NRC Conclusion

The NRC has concluded that this violation occurred as stated and the Licensee has not provided an adequate basis for a reduction of the severity level or for mitigation or remission of the civil penalty. Consequently, the proposed civil penalty in the amount of $2,500 is imposed.

EVALUATION OF VIOLATION

NOT ASSESSED A CIVIL PENALTY

On February 5, 1996, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for two violations identified during an NRC inspection. One violation, Violation A, was assessed a civil penalty. (See the Appendix, "Evaluation and Conclusion," to the accompanying Order Imposing Civil Penalty for the details associated with Violation A.)

The second violation, Violation B, was cited for the Licensee's failure to conduct the quarterly inventory of all sealed sources, as required by 10 CFR 34.26. Violation B was categorized at Severity Level IV and was not assessed a civil penalty. The Duriron Company, Inc. (Licensee) responded to the Notice on February 19, 1996, and denied Violation B. The NRC's evaluation and conclusion regarding the Licensee's denial of Violation B are as follows:

Restatement of Violation B

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.

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

Summary of Licensee's Response to Violation B

The Licensee states that the inventories were conducted by visual surveys, but notes of these surveys were not completed or transcribed in the correct format. The Licensee claims that the RSO was embarrassed by his failure to maintain his inventory records and did not show the records to the NRC inspector because of his embarrassment. The Licensee attached two pages of records to the February 19, 1996 response and indicated that the information on those pages demonstrated compliance with the NRC inventory requirement.

NRC Evaluation of Licensee's Response

The Licensee claims in the February 19, 1996 letter that inventories were conducted by visual survey. However, the RSO told the NRC inspector that he last inventoried the NRC-licensed materials on January 7 and June 10, 1994. The RSO attributed his failure to inventory the sources to the constraints placed on his time as a supervisory radiographer and RSO.

As of the date of the inspection, the Licensee possessed eight sealed sources consisting of one cobalt-60 source and seven iridium-192 sources. (The cobalt-60 source and two iridium-192 sources are used almost every day. The five remaining iridium-192 sources are in storage.) In citing the violation, the NRC credited the Licensee with having complied with the inventory requirement for the three sources that are in virtually daily use and cited the Licensee for failing to conduct the quarterly inventory of the sealed sources that were in storage.

The Licensee copied four records onto the first page attached to the February 19, 1996 letter and represented those copies as examples of inventory records. None of the records list the source by serial number or indicate the date the inventory was made. Therefore, with the exception of the record for one cobalt-60 source, the records submitted with the Licensee's February 19, 1996 letter do not show that an inventory was made and cannot be used in evaluating the Licensee's response to the NOV.

The second page attached to the Licensee's February 19, 1996 letter shows three sealed sources by serial number and isotope were inventoried on June 10, 1994. The NRC considered that inventory while assessing the violation and did not cite the Licensee for that inventory. Rather, the cited violation was for the quarterly inventories that were not performed from June 11, 1994, to the September 1995 inspection. The Licensee's February 19, 1996 letter did not provide any information to show that quarterly inventories were made from

June 11, 1994, to September 11, 1995.

NRC Conclusion

The Licensee has not provided an adequate basis for withdrawal of the violation. Therefore, NRC concludes that the violation occurred as stated in the Notice.