[Federal Register Volume 69, Number 56 (Tuesday, March 23, 2004)]
[Notices]
[Pages 13594-13596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6423]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-07710, License No. 50-14102-01, EA-03-126]
In the Matter of State of Alaska Department of Transportation &
Public Facilities, Anchorage, AK Confirmatory Order Modifying License,
(Effective Immediately)
I
The State of Alaska Department of Transportation & Public
Facilities (ADOT&PF or Licensee) is the holder of NRC License No. 50-
14102-01 issued by the Nuclear Regulatory Commission (NRC or
Commission) pursuant to 10 CFR Part 30. The license authorizes ADOT&PF
to possess and use certain licensed material in portable gauging
devices that have been registered either with the NRC or with an
Agreement State and have been distributed in accordance with an NRC or
Agreement State specific license. The license was most recently amended
on February 4, 2004, and is due to expire on November 30, 2011.
II
On January 3, 2002, the NRC's Office of Investigations (OI) started
an investigation of ADOT&PF to determine if ADOT&PF's Statewide
Radiation Safety Officer (SRSO) was the subject of discrimination for
raising safety and compliance concerns. In OI Report No. 4-2002-001, OI
concluded that the SRSO was the subject of discrimination. By letter
dated July 17, 2003, the NRC identified to ADOT&PF an apparent
violation of employee protection requirements (10 CFR 30.7) and the
supporting bases for the NRC's concern. A predecisional enforcement
conference was conducted with ADOT&PF on November 18-19, 2003. During
the conference, ADOT&PF denied that any discrimination occurred and
asserted that no violation of 10 CFR 30.7 occurred.
After considering the information from the investigation and the
information ADOT&PF presented during the conference, the NRC has
concluded that a violation of 10 CFR 30.7 occurred. Specifically, the
NRC has concluded that ADOT&PF discriminated against its SRSO for
engaging in protected activities as documented in a Notice of Violation
issued to ADOT&PF on this date. Further, the NRC is concerned that
ADOT&PF's Safety Conscious Work Environment \1\ has deficiencies, and
that
[[Page 13595]]
ADOT&PF's actions to date have not been adequate to address these
deficiencies.
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\1\ NRC defines Safety Conscious Work Environment as a work
environment in which employees feel free to raise safety and
compliance concerns to its employer or to the NRC without fear of
retaliation. The NRC issued a Policy Statement for Nuclear Employees
Raising Safety Concerns Without Fear of Retaliation on May 14, 1996
[61 FR 24336].
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By letters dated February 18 and March 4, 2004, ADOT&PF reiterated
its position that discrimination did not occur. Notwithstanding
ADOT&PF's disagreement with the NRC's conclusions, ADOT&PF has agreed
to address its compliance with NRC's Employee Protection regulations
(i.e., 10 CFR 30.7) and the NRC's concerns about ADOT&PF's Safety
Conscious Work Environment.
III
By letter dated March 4, 2004, ADOT&PF has agreed to take actions
to ensure compliance with 10 CFR 30.7 and to ensure it has established
and will maintain a Safety Conscious Work Environment. The agreed-upon
actions noted in Section IV of this Confirmatory Order focus on (1)
ensuring that ADOT&PF's internal policies and procedures establish and
will support a Safety Conscious Work Environment by providing for a
review of these policies and procedures by individuals who are
independent of ADOT&PF and who have subject-matter expertise; (2)
developing a plan to conduct training of ADOT&PF employees and their
supervisors and managers on NRC's Employee Protection regulations and
on establishing a Safety Conscious Work Environment; and (3) developing
a long-term plan for maintaining a Safety Conscious Work Environment
that includes culture surveys and annual refresher training.
On March 4, 2004, ADOT&PF consented to issuing this Confirmatory
Order with the commitments as described in Section IV below. ADOT&PF
further agreed in its March 4, 2004 letter that this Confirmatory Order
is to be effective upon issuance and that it has waived its right to a
hearing on this Confirmatory Order. The NRC has concluded that its
concerns can be resolved through effective implementation of ADOT&PF's
commitments.
I find that ADOT&PF's commitments as set forth in Section IV are
acceptable and necessary, and I conclude that with these commitments
the public health and safety are reasonably assured. In view of the
foregoing, I have determined that the public health and safety require
that ADOT&PF's commitments be confirmed by this Order. Based on the
above and Licensee's consent, this Order is immediately effective upon
issuance.
IV
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186
of the Atomic Energy Act of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202 and 10 CFR part 30, It is hereby ordered,
effective immediately, that License No. 50-14102-01 is modified as
follows:
1. Within seventy-five (75) days from the date of this Confirmatory
Order, ADOT&PF shall submit for NRC approval a plan to review ADOT&PF's
internal policies and procedures pertaining to assuring compliance with
NRC employee protection requirements (reference 10 CFR 30.7) and to
establishing and maintaining a Safety Conscious Work Environment
(reference ``Freedom of Employees in the Nuclear Industry to Raise
Safety Concerns Without Fear of Retaliation,'' May 14, 1996 [61 FR
24336]). ADOT&PF shall complete the review within sixty (60) days from
the date of NRC's approval of the plan.
(A) The plan shall include a discussion of the individual(s) who
shall conduct the reviews. This discussion shall demonstrate that the
individual(s) whom ADOT&PF selected have the expertise and capability
to effectively conduct the reviews. The individuals shall meet the
following criteria: (1) at least one individual shall have expertise in
or prior experience in developing programs to assure compliance with
NRC's Employee Protection regulations (e.g., 10 CFR 30.7, 40.7, or
50.7); (2) the individual(s) shall be knowledgeable regarding the
Commission's May 1996 Policy Statement on the ``Freedom of Employees in
the Nuclear Industry to Raise Safety Concerns Without Fear of
Retaliation'' [61 FR 24336]; (3) the individual(s) shall be independent
of ADOT&PF; and (4) the individual(s) shall have expertise in the
attributes of a Safety Conscious Work Environment as demonstrated by
experience in evaluating or developing internal policies/procedures
regarding a Safety Conscious Work Environment.
(B) The individual(s) above shall review and determine the adequacy
of all ADOT&PF's policies and procedures regarding Safety Conscious
Work Environment, including how ADOT&PF evaluates and resolves safety
concerns while balancing other daily (production) duties. For any
inadequacies that are identified, the individual(s) shall provide
ADOT&PF with written recommendations.
2. Within seventy-five (75) days from the date of this Confirmatory
Order, ADOT&PF shall submit for NRC approval a plan to conduct initial
training on the NRC's Employee Protection regulations and the
attributes of a Safety Conscious Work Environment. The training shall
commence within ninety (90) days from the date of NRC's approval of the
plan, and the training shall be completed within ninety (90) days of
commencing. The plan shall specify which ADOT&PF workers, supervisors
and managers shall receive the training, and shall include provisions
for individuals who miss the training due to unforeseen circumstances
such as illness. At a minimum, the training shall be provided to
workers involved in the use of licensed material and the radiation
safety program, as well as the supervisors and managers of these
individuals.
(A) The plan shall include a discussion of the individual(s) who
shall conduct the training. This discussion shall demonstrate that the
individual(s) selected by ADOT&PF have the expertise and capability to
effectively conduct the training. The individuals shall meet the
criteria specified in item 1.(A) above. The plan shall include a
listing of training courses conducted by the individual(s) on NRC's
Employee Protection regulations and on the topic of Safety Conscious
Work Environment.
(B) ADOT&PF's plan shall include a description of the topics to be
covered in the training course. The training shall include discussions
of: (1) 10 CFR 30.7, including a discussion of protected activities and
adverse actions; (2) applicable federal and state laws pertaining to
whistleblower protection; (3) enforcement actions that may be taken
against licensees and individuals who violate these requirements; (4)
the content of this Confirmatory Order; (5) establishing a Safety
Conscious Work Environment; (6) the roles and responsibilities of the
statewide and regional radiation safety officers in assuring compliance
with NRC radiation safety requirements; and (7) what constitutes a
hostile work environment and a ``chilling effect.''
(C) The plan shall include additional training to supervisors and
managers on how to effectively evaluate and resolve safety concerns,
while balancing safety concerns with other daily activities, especially
when dealing with conflicts in the work place. This training shall also
discuss the specific responsibilities and obligations of supervisors
and managers under NRC's Employee
[[Page 13596]]
Protection regulations and ADOT&PF's internal policies and procedures.
3. Within 60 days of completing the review required by Condition 1
above, ADOT&PF shall submit for NRC approval a long-term plan for
maintaining a Safety Conscious Work Environment. The plan shall include
a discussion of the results of the review required by Condition 1
above, including a discussion of recommendations made by the
individual(s) and ADOT&PF's plan and schedule for addressing the
recommendations. The long-term plan shall describe a procedure for
evaluating and approving future changes to the plan. The long-term plan
shall, at a minimum, address a time period through calendar year 2005.
The plan shall include the following elements.
(A) ADOT&PF shall perform an employee cultural survey which is
developed by a consultant or entity that is independent of ADOT&PF. The
long-term plan shall specify which ADOT&PF workers, supervisors and
managers shall be included in the survey. At a minimum, the survey
instrument (i.e., questionnaire) shall be made available to workers,
including temporary workers, involved in the use of licensed material
and the radiation safety program, as well as the supervisors and
managers of these individuals. At a minimum, this survey shall be
performed in calendar years 2004 and 2005. ADOT&PF shall provide the
NRC with annual reports for the years 2004 and 2005 summarizing the
findings of the cultural survey, including the questions used, the
methodology applied, and any follow-up actions. The survey shall be
conducted such that the individual employee responses shall be kept
confidential from management.
(B) ADOT&PF shall conduct annual refresher training of workers,
including temporary workers, involved in the use of licensed material
and the radiation safety program, as well as the supervisors and
managers of these individuals. The long-term plan shall specify which
ADOT&PF workers, supervisors and managers shall receive refresher
training. No additional training in calendar year 2004 is needed beyond
that required by Condition 2 above. Subsequent annual refresher
training shall include a discussion of the NRC Employee Protection
regulations and other applicable federal and state laws pertaining to
whistleblower protection, ADOT&PF's policies and procedures for
maintaining a Safety Conscious Work Environment, and the roles and
responsibilities of the statewide and regional radiation safety
officers in assuring compliance with NRC radiation safety requirements.
(C) The refresher training conducted in calendar year 2005 shall be
conducted by individual(s) independent of ADOT&PF who meet Condition
1.(A) above. ADOT&PF's plan shall specify the minimum qualifications
for individuals (including ADOT&PF personnel) who may provide Safety
Conscious Work Environment training in subsequent years.
(D) ADOT&PF shall request an amendment to its license to require
that its long-term plan for maintaining a Safety Conscious Work
Environment be maintained and implemented. The license amendment
request shall be submitted concurrent with submitting the long-term
plan.
The Director, Office of Enforcement may relax or rescind, in
writing, any of the above conditions upon a showing by ADOT&PF of good
cause.
V
Any person adversely affected by this Confirmatory Order, other
than the Licensee, may request a hearing within 20 days of its
issuance. 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, DC 20555, and include a
statement of good cause for the extension. Any request for a hearing
shall be submitted to the Secretary, U.S. Nuclear Regulatory
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC
20555. Copies also shall be sent to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
to the Assistant General Counsel for Materials Litigation and
Enforcement at the same address, to the Regional Administrator, NRC
Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, and
to the Licensee. Because of continuing disruptions in delivery of mail
to United States Government offices, it is requested that requests for
hearing be transmitted to the Secretary of the Commission either by
means of facsimile transmission to (301) 415-1101 or by e-mail to
[email protected] and also to the Office of the General Counsel
either by means of facsimile transmission to (301) 415-3725 or by e-
mail to [email protected]. If a person other than the licensee
requests a hearing, that person shall set forth with particularity the
manner in which his interest is adversely affected by this Confirmatory
Order and propose at least one admissible contention, addressing the
criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely
affected, the Commission will issue an Order designating the time and
place of any hearing. If a hearing is held, the issue to be considered
at such hearing shall be whether this Confirmatory Order should be
sustained.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section IV above shall be final 20 days from the date of
this Confirmatory Order without further order or proceedings. If an
extension of time for requesting a hearing has been approved, the
provisions specified in Section IV shall be final when the extension
expires if a hearing request has not been received. A request for
hearing shall not stay the immediate effectiveness of this Order.
Dated this 15th day of March, 2004.
For the Nuclear Regulatory Commission.
Frank Congel,
Director, Office of Enforcement.
[FR Doc. 04-6423 Filed 3-22-04; 8:45 am]
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