EA-96-041 - The Dial Corporation

June 18, 1996

EA 96-041

Mr. Gene Bacon, Plant Manager
The Dial Corporation
110 West First Street
London, Ohio 43140

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $2,500 (NRC INSPECTION REPORT NO. 999-90003/95025(DNMS))

Dear Mr. Bacon:

This refers to the special safety inspection conducted from January 22 to February 21, 1996, to review the circumstances surrounding the loss of an NDC Systems Model No. 103 gauge containing radioactive material<1> and possessed under an NRC General License. On November 3, 1995, The Dial Corporation (Dial) informed the NRC that the gauge was last seen during 1992 and only the detector panel (the non-radioactive portion) could be located in October 1995. The details of the incident are discussed in NRC Inspection Report No. 999-90003/95025(DNMS), dated March 12, 1996. By letter dated April 9, 1996, Dial responded to the apparent violation 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 Dial provided in response to the inspection report, the NRC has determined that a significant violation of NRC requirements occurred. The violation involves the failure to properly transfer or dispose of generally licensed material in accordance with 10 CFR 31.5(c)(8) and is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty.

We recognize that, as noted above, on November 3, 1995, Dial informed the NRC that the source for a gauge was missing. However, you had not initiated action to locate the source associated with the detector panel. Further, it is not clear that absent our inquiry you would have notified us as required by 10 CFR 20.2201 and 10 CFR 31.5.

Incumbent upon each company possessing byproduct material is the responsibility to protect the public health and safety by ensuring that radioactive materials are controlled at all times. This violation is of significant regulatory concern because Dial does not know the circumstances surrounding the loss, the ultimate disposition of the material, or the possibility of any individual exposures to radiation. 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 $2,500 is considered for a Severity Level III violation. The NRC recognizes that application of the civil penalty assessment process would 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 $2,500. Discretion is being exercised because licensed material was not controlled and is currently missing.

Therefore, to emphasize the need to strictly control licensed material, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the base amount of $2,500 for the Severity Level III violation.

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 Inspection Report No. 999-90003/95025 and a letter dated April 9, 1996, from Dial. 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 redaction.

Sincerely,

Hubert J. Miller 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

The Dial Corporation London, Ohio

Docket No. 999-90003 General License EA 96-041

During an NRC inspection conducted from January 22 to February 21, 1996, a violation of NRC requirements was 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 particular violation and associated civil penalty is set forth below:

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, during the approximate period 1992 to October 1995, the licensee disposed of an NDC Systems gauge containing an americium-241 sealed source of nominally 200 millicuries and this disposal was not made to a person holding a specific license pursuant to 10 CFR Parts 30 and 32 or from an Agreement State to receive the device and the exceptions in 10 CFR 31.5(c)(9) did not apply. (01013)

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

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 Inspection Report No. 999-90003/95025(DNMS) and a letter dated April, 1996, from The Dial Corporation (Licensee). 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. Under the authority of Section 182 of the Act, 42 U. S. Code 2232, the response shall be submitted under oath or affirmation.

Within the same time as provided for any response noted above under 10 CFR 2.201, 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 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 18th day of June 1996