EA-97-512 - Bittner Engineering, Inc.

November 24, 1997

EA 97-512

Mr. Dennis Bittner, President
Bittner Engineering, Inc.
103 South 10th Street
Escanaba, MI 49829

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 030-30982/97001(DNMS))

Dear Mr. Bittner:

This refers to the inspection conducted on October 21, 1997, at Bittner Engineering, Inc. in Escanaba, Michigan. The purpose of the inspection was to review an event involving damage to a moisture/density gauge at a construction site. The enclosed report contains the NRC inspection findings, and describes the event and the associated violation in detail. On October 31, 1997, members of my staff contacted you by telephone to discuss the violation described in the enclosed report which was being considered for escalated enforcement action. During the telephone conversation you agreed with the inspection findings, and indicated that a predecisional enforcement conference was not desired.

Based on the information developed during the inspection, the NRC has determined that a violation of NRC requirements occurred. The 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 involves the failure to control licensed material in an unrestricted area. As a result of this failure, a gauge containing 8 millicuries of cesium-137 and 40 millicuries of americium-241 was run over by construction machinery and damaged. Specifically, a licensee designated gauge user who was measuring soil compaction at a temporary job-site near Bark River, Michigan, placed the gauge on a soil bank that bordered the area where a compactor was rolling soil. While waiting to complete measurements in the compactor roller pattern area, the gauge user turned his attention to another detail and walked about 75 feet away from the device. While the user's back was turned, the compactor operator changed the roller pattern and backed into the soil bank, crushing the moisture/density gauge.

Incumbent upon each NRC licensee is the responsibility to protect public health and safety by ensuring that radioactive materials are controlled at all times. The NRC recognizes that you implemented your emergency procedures and performed radiation surveys that revealed no excessive radiation levels or contamination levels from the damaged moisture/density gauge. Nevertheless, the failure to maintain security or constant surveillance of licensed material, particularly at a temporary job site, represents a significant failure to meet license commitments and responsibilities and is of regulatory concern. This failure takes on even greater significance because it resulted in damage to the gauge. Therefore, the violation is classified in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 as a Severity Level III violation.

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. We have determined that the actions following the event were both prompt and comprehensive and, therefore, credit for corrective action is warranted. These actions include: (a) the radiation safety officer informed all gauge operators of the event, (b) all staff were provided with refresher training which covered the license requirements and the importance of maintaining control of licensed material, and (c) the gauge operators were scheduled for additional training by the gauge manufacturer during the month of November.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized, 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 problem constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation and the corrective actions taken and/or planned to correct the violation and prevent recurrence is already adequately addressed in the enclosed Inspection Report No. 030-30982/97001(DNMS) and during NRC's telephone conversation with you on October 31, 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, its enclosures, and your response, if you choose to send one, will be placed in the NRC Public Document Room.

Sincerely,

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

Docket No. 030-30982
License No. 21-26010-01

Enclosures:
1. Notice of Violation
2. Inspection Report 030-30982/97001(DNMS)

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NOTICE OF VIOLATION

Bittner Engineering, Inc. Escanaba, Michigan

Docket No. 030-30982 License No. 21-26010-01 EA 97-512

During an NRC inspection conducted on October 21, 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:

Condition 15 of License No. 21-26010-01 requires, in part, that when performing tests at temporary job sites, the authorized user shall not leave the moisture/density gauge unattended.

Contrary to the above, on October 14, 1997, an authorized user left a moisture/density gauge containing 8 millicuries (296 MBq) of cesium-137 and 40 millicuries (1.48 GBq) of americium-241 unattended at a temporary job site. The gauge was subsequently damaged by construction equipment.

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

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 will be achieved is already adequately addressed in Inspection Report No. 030-30982/97001(DNMS). However, you are required to submit a written statement or explanation pursuant to 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, within 30 days of the date of the letter transmitting this Notice.

If you choose to provide a response, it will be placed in the NRC Public Document Room (PDR), and 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.

Dated at Lisle, Illinois
this 24th day of November 1997