[Federal Register Volume 61, Number 77 (Friday, April 19, 1996)]
[Notices]
[Pages 17326-17329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9666]



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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-05712, License No. 34-6398-01EA 95-227]


The Duriron Company, Inc.,) Dayton, Ohio; 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

[[Page 17327]]

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.

    Dated at Rockville, Maryland, this 12th day of April, 1996.
James Lieberman,
Director, Office of Enforcement.

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.1 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:
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    \1\ A second violation, Violation B, was identified during the 
inspection. Violation B concerned the Licensee's failure to 
inventory sealed sources at the intervals specified by 10 CFR 34.26. 
The licensee also contested Violation B. The NRC's evaluation of the 
Licensee's request for withdrawing Violation B is contained in the 
``Evaluation of Violation Not Assessed a Civil Penalty'' which 
follows the evaluation of Violation A.
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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,2 will be considered 
in assessing the severity level of a violation.
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    \2\ 10 CFR Part 2, Appendix C, Paragraph IV.C, Footnote 7, 
provides that for purposes of the NRC Enforcement Policy, a 
Radiation Safety Officer is considered a licensee official.
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    In any NRC-licensed radiation safety program, the RSO is a 
licensee's focal point

[[Page 17328]]

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

[[Page 17329]]

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.

[FR Doc. 96-9666 Filed 4-18-96; 8:45 am]
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