[Federal Register Volume 70, Number 231 (Friday, December 2, 2005)]
[Pages 72316-72318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-6750]



[Docket No. 030-35997]
[ License No. 11-27727-01; EA-05-123, 05-204]

In the Matter of Sabia, Inc., San Diego, CA; Confirmatory Order 
Modifying License (Effective Immediately)

    In calendar year 2004, Sabia, Inc., (Sabia or Licensee) had been 
the holder of a general license pursuant to 10 CFR 150.20, 
``Recognition of Agreement State Licenses'' which allowed Sabia to 
conduct licensed activities in NRC's jurisdiction using its State of 
California license. Sabia is also the holder of NRC License No. 11-
27727-01 issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR part 30. The NRC license authorizes 
Sabia to

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possess and use certain licensed material in fixed 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 June 21, 
2005, and is due to expire on June 30, 2012.
    On March 16, 2005, the NRC concluded an investigation into Sabia's 
activities that were conducted over the period from January to July of 
2004, at the Farmersburg Mine, Pimento Indiana; the R.A.G. Emerald 
Mine, Waynesburg, Pennsylvania; and the McElroy Mine, Moundsville, West 
Virginia. The investigation reviewed activities conducted under the 
provisions of a general license granted to Sabia pursuant to the 
provisions of 10 CFR 150.20 as they relate to radiation safety and 
compliance with the Commission's rules and regulations. Based on the 
results of the investigation, two apparent violations were identified 
and have been considered for escalated enforcement action in accordance 
with the NRC Enforcement Policy. The apparent violations considered for 
escalated enforcement action involved: (1) Sabia's failure to comply 
with 10 CFR 150.20 when it did not comply with all terms and conditions 
of its State of California byproduct material license while using 
licensed material in NRC jurisdiction, and (2) as a result, Sabia 
effectively transferred licensed material to persons who were not 
authorized to receive such material under the terms of a specific or 
general license. In addition, the NRC was concerned that willfulness, 
in the form of careless disregard, was associated with the first 
apparent violation. These findings were documented in NRC Inspection 
Report 150-00004/05-002 (OI Investigation Reports 4-2004-016 and 4-
2004-019) dated July 14, 2005.
    In response to the July 14, 2005 inspection report, Sabia requested 
use of the NRC's Alternative Dispute Resolution (ADR) process to 
resolve differences it had with the NRC's inspection findings. The NRC 
uses ADR, a process in which a neutral mediator with no decision-making 
authority, assists the NRC and the party subject to enforcement action 
in reaching an agreement to resolve any differences regarding the 
enforcement action. In this case, an ADR session was conducted between 
the NRC and Sabia in RIV, Arlington, Texas on August 31, 2005. The ADR 
session was mediated by a professional mediator arranged through 
Cornell University's Institute of Conflict Resolution and a settlement 
agreement was reached.
    The elements of the settlement agreement are documented in a letter 
from Mr. Clinton L. Lingren, President, Sabia to the NRC dated August 
31, 2005, and consist of the following:
    1. Sabia acknowledges that there were violations as described in 
NRC Inspection Report 150-00004/05-002. Specifically, there was a 
violation of 10 CFR 150.20 and 10 CFR 30.41(a) and (b)(5). Sabia does 
not agree that willfulness was involved. The NRC will not draw any 
conclusion on whether willfulness was involved with these violations.
    2. In order to prevent recurrence of these types of violations, 
Sabia agrees to take the following actions described in section IV.
    3. Consistent with the NRC's ADR policies, Sabia agrees to the 
issuance of a Confirmatory Order confirming this agreement, and 
understands that the NRC will issue a press release along with the 
Confirmatory Order.
    4. The NRC agrees not to pursue any further enforcement actions 
related to these specific issues and violations.
    Nothing in this agreement prevents the NRC from taking enforcement 
actions for violations of this Confirmatory Order.
    On November 15, 2005, Sabia consented to issuing this Confirmatory 
Order with the commitments as described in section IV below. Sabia 
further agreed in its November 15, 2005, 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 Sabia's 
commitments. Note that Items 1, 3, and 4, above are not included in 
section IV below. This is because Item 1 reflects Sabia's 
acknowledgment of the violations and NRC's decision not to draw a 
conclusion on willfulness. Item 3 relates to agreement of the issuance 
of the Confirmatory Order and is not needed. And, Item 4 relates to 
NRC's agreement not to take enforcement action on the apparent 
violations in exchange for effective implementation of Sabia's 
additional action.
    I find that Sabia'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 Sabia's commitments be confirmed by this Order. Based on the above 
and the Licensee's consent, this Order is immediately effective upon 
    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. 11-27727-01 Is Modified As 
    In order to prevent recurrence of the types of violations 
identified in NRC Inspection Report 150-00004/05-002, dated July 14, 
2005, Sabia shall take the following actions:
    1. Training. In addition to the current training program for all 
employees who work with nuclear sources (to include technicians, 
technician supervisors, and all radiation safety officer (RSO) staff) 
SABIA will put in place training that outlines the responsibilities of 
the RSO and those who regularly provide checks and balances to ensure 
that RSO duties are carried out in accordance with NRC requirements, by 
February 28, 2006. This training will outline policy for internal 
reviews of communications with regulatory agencies and verification 
that regulations and license conditions are properly followed. The 
company president will conduct that portion of the training that 
relates to policy and overall safety considerations. Specific training 
with regards to the requirements of 10 CFR 30.9 and potential 
enforcement actions that can occur will be included. Key principles of 
all this additional training will be incorporated into annual refresher 
training. A video record of the initial training will be kept available 
for review by the NRC.
    2. Audits. After implementing efforts to respond to concerns 
expressed in the ADR meeting and before the end of 2006, SABIA will 
have a comprehensive audit of its radiation safety program performed by 
an outside auditor. Sabia will submit for NRC review a copy of the 
scope of the audit at least 30 days prior to its performance. Within a 
year after the conclusion of that audit, SABIA will perform an internal 
audit of that program including verification of actions performed in 
response to any external audit findings. SABIA will notify the NRC when 
those audits are complete and make the results available for NRC's 
    The Regional Administrator, NRC Region IV, may relax or rescind, in 
writing, any of the above conditions upon a showing by Sabia of good 


    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

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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: Chief, 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 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 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. An 
Answer or a Request for Hearing Shall Not Stay the Immediate 
Effectiveness of this Order.

    For the Nuclear Regulatory Commission.

    Dated this 22nd day of November 2005.
Michael R. Johnson,
Director, Office of Enforcement.
 [FR Doc. E5-6750 Filed 12-1-05; 8:45 am]