EA-97-486 - Stroh Brewery Company

December 19, 1997

EA 97-486

Mr. Timothy P. Knabe, Plant Manager
The Stroh Brewery Company
Post Office Box 25013
Lehigh, Pennsylvania 18002-5013

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $4,400 (NRC Inspection Report No. 99990001/97-021)

Dear Mr. Knabe:

This refers to the NRC inspection conducted on October 6 and 9, 1997 at your facility in Fogelsville, Pennsylvania, to review the circumstances surrounding the unauthorized disposal of a gauge containing NRC licensed material that you possessed pursuant to a general license issued by the NRC. Apparently, as part of a plant cleanup in July 1997, the gauge was inadvertently placed in a scrap dumpster at the facility and then picked up by a company (Todd Heller, Inc.) not authorized to possess the gauge. The material was then transferred by Todd Heller, Inc. to the Royal Green Metal Recyclers in Temple, Pennsylvania, shredded with non-ferrous automotive parts, and shipped to a Michigan recycler where it caused a radiation monitor to alarm, after which the dumpster was sent back to the Royal Green facility in Pennsylvania. A second gauge of the same type is currently unaccounted for and you have not determined whether that gauge was also part of the shipment to Royal Green that was shredded, or was part of one of eight shipments to another recycle facility (Ray Craft & Sons) in New Jersey between April 1, 1997, and September 22, 1997, or is elsewhere.

After the NRC received notification from the Pennsylvania Department of Environmental Protection on September 2, 1997, concerning this occurrence, NRC inspectors were dispatched to the Royal Green facility on September 3, 1997, to survey the contamination. After determining the nature of the material, as well as a serial number from a component, the NRC was able to trace the material to your facility at which time the inspection was immediately initiated on October 6, 1997. During the inspection, two violations of NRC requirements were identified, as described in the NRC inspection report transmitted with our letter, dated November 4, 1997. On November 12, 1997, a predecisional enforcement conference was held with Mr. D. Arnold, Corporate Director of Engineering, yourself, and other members of the Stroh Brewing Company staff to discuss the violations, their causes, and your corrective actions. A copy of the enforcement conference report was sent to you by separate correspondence on November 19, 1997.

At the time of the enforcement conference, you had just received information from your scrap hauler about deliveries to a location other than Royal Green and you agreed to investigate that location for possible evidence of the missing source. Also, you were still working on arrangements for disposal of the material at Royal Green. Subsequent to the conference, in a telephone conversation on November 19, 1997, between Mr. G. Miller, Stroh Brewing Company Director of Environmental Affairs, and Ms. S. Arredondo, NRC Region I, Mr. Miller, indicated that The Stroh Brewery Company would provide the NRC with (1) your evaluation of the possibility of disposal of the missing source through Ray Craft & Sons by November 30, 1997; (2) a status report of your findings from your survey of the waste at Royal Green by December 31, 1997; and (3) a final report regarding the disposal of waste at Royal Green by January 31, 1998.

Based on the information developed during the inspection and the information you provided during the enforcement conference, the NRC has determined that two violations of NRC requirements occurred. The violations are cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice), and the circumstances surrounding the violations are described in detail in the subject inspection report. The violations involve (1) the unauthorized disposal of a Gamma Model 101 fill-level gauge (containing 100 millicuries of americium-241) by transfer to a scrap metal recycler in July 1997, a method of transfer not authorized by the NRC; and (2) the failure to perform the required leak tests, at the required frequency, of two gauges while they were in your possession from 1981 to July 1997. As noted above, one Am-241 source remains unaccounted for and quite possibly is part of the contaminated load of scrap currently in the dumpster at the Royal Green facility; however, it is also possible that the source is elsewhere. In the unlikely event that the second source has gone elsewhere and is later found to have caused more significant safety consequences, additional enforcement action could be considered at that time. However, since it is more likely that the known event involving, at a minimum, one source being shredded at the Royal Green facility, is the most significant impact resulting from Stroh Brewery Company's failure to properly control material, the NRC is issuing the enclosed action rather than waiting for more information regarding the status of the other source.

The first violation is of very significant regulatory concern because it not only resulted in material being uncontrolled in the public domain, but also, as a result of the shredding of the material, it could have posed a threat to individuals if it had been ingested or inhaled. The NRC recognizes that the resulting americium-241 contamination was not likely to have been ingested or inhaled because there was no evidence of spread of contamination at the Royal Green facility beyond the shredded non-ferrous residue. Nonetheless, had the material been ingested or inhaled, this loss of material would have had a high impact on members of the public, such as workers handling the material at the Royal Green facility after it was shredded, as well as workers at the Michigan facility had the material been accepted there. Therefore, the violation has been classified at Severity Level II 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 $4,400 is considered for a Severity Level II violation. Consistent with the Enforcement Policy, the NRC considered whether credit was warranted for both Identification and Corrective Action. Credit for identification is not warranted since the improper disposal of the gauge was not identified by you, but was found as a result of an event. Credit for corrective action is warranted because your actions, at the time of the enforcement conference, were both prompt and comprehensive. These actions, which were noted at the conference, included, but were not limited to (1) retention of a contractor to deal with the contamination currently confined to the dumpster located within a fenced area at the Royal Green facility, including development of plans for proper disposal of the waste; (2) issuance of a corporate policy to all of your facilities regarding the methods for handling and controlling gauges containing radioactive material; (3) establishment of plans to better assure appropriate responsibility and accountability of individuals controlling these devices; and (4) assignment of nuclear gauging devices to a responsible individual at each of your facilities.

Therefore, to emphasize the importance of appropriate control of these devices to assure they are not disposed of improperly, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice in the base amount of $4,400. In addition, issuance of this Notice constitutes escalated enforcement action, that may subject you to additional inspection effort.

The second violation, which involves the failure to perform leak tests, has been classified at Severity Level IV.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should describe the status of your actions to (1) ascertain the whereabouts of the other gauge; and (2) describe your efforts to properly dispose of the waste at the Royal Green facility. The NRC will use your response, in part, to determine whether further enforcement action is necessary to ensure compliance with regulatory requirements.

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

Sincerely,

Hubert J. Miller Regional Administrator

Docket No. 99990001
License No. General License

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

cc w/encl:
Commonwealth of Pennsylvania
State of New Jersey

G. Walker, Assistant General Counsel
The Stroh Brewery Co.
100 River Place
Detroit, Michigan 48297-4291

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

The Stroh Brewery Company Fogelsville, Pennsylvania

Docket No. 99990001 License No. General License EA 97-486

During an NRC inspection conducted on October 6 and 9, 1997, violations of NRC requirements were identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions," NUREG-1600, the NRC 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:

I. Violation Assessed A Civil Penalty

10 CFR 31.5 (c)(8) requires, in part, that, except as provided in 10 CFR 31.5(c)(9), a licensee shall dispose of generally licensed devices 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 July 28, 1997, the licensee disposed of a PECO Controls Gamma Model 101 generally licensed device containing 100 millicuries of americium-241, by transfer to persons other than one 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. Specifically, the device was disposed of by transfer to Todd Heller, Inc, a recycling disposal firm that does not hold a specific license pursuant to 10 CFR Parts 30 and 32 or a license from an Agreement State. (01012)

This is a Severity Level II violation (Supplement IV).
Civil Penalty - $4,400.

II. Violation Not Assessed A Civil Penalty

10 CFR 31.5 (c)(2) requires, with certain exceptions not applicable here, that the licensee shall assure that generally licensed devices are tested for leakage of radioactive material at no longer than six-month intervals or at other intervals as are specified on the label.

Contrary to the above, the licensee's two PECO Controls Gamma Model 101 generally licensed devices containing 100 millicuries of americium-241 were not tested for leakage of radioactive material at the required six-month intervals and the devices were not subject to the specified exemptions. Specifically, the tests were only performed in 1981, 1982, 1984 and 1988, and were only performed once in each of those years, and at least one of these sources remained in the licensee's possession until July 28, 1997 and was not tested during that period. (02014)

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

Pursuant to the provisions of 10 CFR 2.201, The Stroh Brewery Company is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an Order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown. Under the authority of Section 182 of the Act, 42 U.S.C. 2232, this response shall be submitted under oath or affirmation.

Within the same time as provided for the response required 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 the cumulative amount of the civil penalties if more than one civil penalty is proposed, 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(s) 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 I.

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. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

Dated at King of Prussia, Pennsylvania
this 19th day of December 1997