[Federal Register Volume 70, Number 95 (Wednesday, May 18, 2005)]
[Notices]
[Pages 28585-28586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-2490]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-33802, License No. 50-23220-02, and EA-05-023]


In the Matter of R&M Engineering Consultants, Fairbanks, AK; 
Confirmatory Order Modifying License (Effective Immediately)

    R&M Engineering Consultants (R&M or Licensee) is the holder of NRC 
License No. 50-23220-02 issued by the Nuclear Regulatory Commission 
(NRC or Commission) pursuant to 10 CFR Part 30. The license authorizes 
the Licensee to possess portable nuclear density gauges containing 
sealed sources of byproduct material and maintain them in storage until 
termination of the license. The possession and storage-only license was 
originally issued March 24, 1995, was last modified on September 21, 
1999, with an expiration date of February 28, 2005.
    An inspection conducted by NRC Region IV in June 2004 identified an 
apparent failure on the part of R&M to leak-test two portable nuclear 
density gauges in accordance with the conditions of the license. 
License Condition 12.D. requires, in part, that no sealed source or 
detector cell shall be stored for a period of more than three (3) years 
without being tested for leakage and/or contamination. This requirement 
was proposed by R&M in information submitted to the NRC with the 1995 
license amendment request to modify the license to possess and store 
byproduct material. In addition, the inspection identified an apparent 
failure on the part of R&M to provide accurate information to the NRC 
in accordance with the requirements of 10 CFR 30.9.
    Specifically, Mr. James Wellman, R&M's President, informed the NRC 
in a September 17, 2002, e-mail that he had performed leak tests of the 
gauges and had sent swabs to Radiation Detection Company in Sunnyvale, 
California for evaluation. The inspection found no evidence that R&M's 
portable nuclear gauges had been leak-tested since the possession and 
storage-only license was issued in 1995. A follow-up investigation by 
the NRC's Office of Investigations (OI) concluded in December 2004 that 
Mr. Wellman willfully failed to leak-test the portable gauges in 
accordance with the requirements of the license. In addition, based on 
a review of the information in the investigation report, it appears 
that Mr. Wellman willfully failed to provide NRC accurate information 
in his September 2002 e-mail.
    On February 8, 2005, representatives of NRC Region IV contacted Mr. 
Wellman by telephone to discuss the results of the inspection and 
investigation. NRC Region IV informed Mr. Wellman that the NRC was 
considering escalated enforcement action, including possible monetary 
civil penalties for the apparent violations described above. Mr. 
Wellman has previously stated his intent to transfer the gauges and 
terminate the license. During the telephonic discussion, NRC Region IV 
asked Mr. Wellman if he would agree to take prompt action to transfer 
the gauges and request termination of R&M's NRC license in lieu of NRC 
pursuing escalated enforcement action. Mr. Wellman agreed to these 
actions during the telephone call, and subsequently consented to these 
actions in response to a letter and a copy of the Confirmatory Order 
containing the proposed conditions that the NRC sent to Mr. Wellman on 
February 25, 2005.
    In a consent form signed on March 16, 2005, R&M Engineering 
Consultants agreed to all of the commitments described in Section IV 
below. The Licensee further agreed that this Order would be effective 
upon issuance and that R&M waived its right to a hearing on this Order. 
Implementation of these commitments will ensure that licensed material 
is appropriately handled and disposed of.
    I find that the Licensee's commitments as described in Section IV 
below are acceptable and necessary and 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 the Licensee's commitments be confirmed by this 
Order. Based on the above and Licensee's consent, this Order is 
immediately effective upon issuance. Accordingly, pursuant to Sections 
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. 
50-23220-02 is modified as follows:
    1. Within 30 days of the date of the Confirmatory Order, leak test 
and obtain the results of leak tests for all sealed sources contained 
in portable nuclear gauging devices possessed under the authority of 
License No. 50-23220-02.
    2. Within 35 days of the date of the Confirmatory Order, provide 
the Director, Division of Nuclear Materials Safety, NRC Region IV, 611 
Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, with a copy of the 
results of the leak tests.
    3. Within 45 days of the date of the Confirmatory Order, complete 
the transfer of all portable nuclear gauging devices possessed under 
the authority of License No. 50-23220-02 to an authorized recipient.
    4. Within 50 days of the date of the Confirmatory Order, provide 
the Director, Division of Nuclear Materials Safety, NRC Region IV, 611 
Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, with copies of 
documents demonstrating that the transfer has taken place.
    5. Within 60 days of the date of the Confirmatory Order, submit to 
the

[[Page 28586]]

Director, Division of Nuclear Materials Safety, NRC Region IV, 611 Ryan 
Plaza Drive, Suite 400, Arlington, Texas 76011, a request for 
termination of License No. 50-23220-02, using NRC Form 314.
    The Regional Administrator, Region IV, may relax or rescind, in 
writing, any of the above conditions upon a showing by the Licensee of 
good cause.
    In accordance with 10 CFR 2.202, any person adversely affected by 
this Confirmatory Order, other than the Licensee, may request a hearing 
on this Order 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, TX 76011, and to the Licensee. Because of continuing 
disruptions in delivery of mail to United States Government offices, it 
is requested that answers and 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 Order and shall address the criteria set 
forth in 10 CFR 2.309(d)(1) 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 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. An answer or a 
request for hearing shall not stay the immediate effectiveness of this 
order.

    For the Nuclear Regulatory Commission.

    Dated this 9th day of May, 2005.
Frank J. Congel,
Director, Office of Enforcement.
[FR Doc. E5-2490 Filed 5-17-05; 8:45 am]
BILLING CODE 7590-01-P