[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Notices]
[Pages 50651-50655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19831]
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NUCLEAR REGULATORY COMMISSION
[Docket No.: 030-10346; License No.: 50-16084-01; EA-08-196]
In the Matter of Alaska Industrial X-Ray, Inc., Anchorage, AK;
Order Modifying License (Effective Immediately)
I
Alaska Industrial X-Ray, Inc. (AIX or Licensee) is the holder of
Materials License No. 50-16084-01 issued by the Nuclear Regulatory
Commission (NRC or Commission) pursuant to 10 CFR Parts 30-36, 39, 40,
and 70 and last amended on November 2, 2007, and due to expire on March
31, 2011. The license authorizes AIX to possess and use sealed
radioactive sources in conducting industrial radiography activities in
accordance with the conditions specified therein.
II
In June 2007, the NRC conducted an onsite inspection and began an
investigation into AIX activities to determine whether deliberate
violations of NRC requirements occurred. During the investigation, the
NRC discovered that AIX radiographers had conducted radiography
activities in violation of 10 CFR 34.41(a) on multiple occasions at the
Arctic Slope Regional Corporation Energy Services (ASRC) site and the
Golovin site, both temporary jobsites. Of concern is that the NRC
previously had issued an identical violation of 10 CFR 34.41(a)
involving deliberate misconduct at the ASRC site on April 25, 2001 (EA-
01-015). Based on the preliminary information from the investigation,
the NRC issued an Order Suspending Licensed Activities (EA-07-261) on
October 19, 2007, which, among other conditions, required that AIX
suspend its radiography activities until adequate assurance could be
provided by independent means that AIX would comply with NRC
requirements when conducting licensed activities. On November 8, 2007,
the NRC relaxed the Order based on several actions taken and
commitments made by AIX to the NRC. The Order was a temporary measure
while the NRC completed its investigation and reviewed the results.
Once completed, the results of the inspection and investigation were
discussed with AIX during a telephonic exit briefing on April 23, 2008,
and were documented in NRC Inspection Report No. 030-10346/07-01 dated
May 20, 2008.
On June 5, 2008, a predecisional enforcement conference (PEC) was
[[Page 50652]]
conducted with AIX in Anchorage, Alaska, to discuss with the company
and its employees the apparent violations, their significance, their
root causes, and any corrective actions. The individuals of concern
included two full-time radiographers, a part-time radiographer, and the
former radiation safety officer (RSO) who, at the time of the PEC, was
employed by AIX as a full-time radiographer. During the PEC, the four
individuals admitted to committing deliberate violations of 10 CFR
34.41(a) at the ASRC site on multiple occasions over a period of
several years. This information was substantively consistent with their
sworn statements provided to the NRC Office of Investigations. Based on
the investigation, the NRC concluded that this violation had occurred
on multiple occasions from about 2004 until the investigation in June
2007.
In addition, during the PEC, the NRC staff discussed with the
president of AIX that during his first interview on July 24, 2007, he
denied that violations of the two-person rule had occurred at the ASRC
site. Later, on July 25, 2007, when confronted with information that
showed that his radiographers had indeed deliberately violated the two-
person rule at the ASRC site, the company president stated that he
suspected violations of the two-person rule had occurred at the ASRC
site, but took no action to investigate his suspicions or discuss this
with his personnel. As a result, the NRC has concluded that the AIX
president, with careless disregard, provided the NRC with information
about the company that was incomplete or inaccurate, in violation of 10
CFR 30.9(a).
During the PEC, the NRC noted that in 2001 it had issued a Severity
Level III violation of 10 CFR 34.41(a) to AIX for deliberate failures
to follow the two-person rule at the ASRC site.\1\ The fact that a
prior enforcement action had been issued for the same violation at the
same location was a significant concern to the NRC because it raised
questions about the effectiveness of AIX management oversight to
prevent recurrence of violations.\2\ In fact, a few years later in
about 2004, the former AIX RSO, and almost all of AIX's radiographers
and assistant radiographers who worked at the ASRC site, began
deliberately failing to follow the two-person rule at the ASRC site.
Further, the reason the violations reoccurred in 2004-2007 were very
similar to the reasons the violations occurred in 2001: The
radiographers felt that one-person radiography was safe at the ASRC
site, and following the two-person rule was unnecessary because
radiographic exposures were performed inside a structure that AIX had
built prior to 2001, intended to meet NRC specifications for a
permanent radiographic installation.\3\
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\1\ On April 25, 2001, the NRC issued a Notice of Violation for
a Severity Level III violation involving a failure to meet the
requirements of 10 CFR 34.41(a) (EA-01-015).
\2\ As part of the corrective actions for the 2001 violation
involving deliberate failures to follow the two-person rule at the
ASRC site, the AIX company president, its former RSO, and all
radiographers and assistant radiographers signed a memorandum, in
February 2001, acknowledging that the two-person rule was to be
followed at the ASRC site. A copy of the memorandum was presented to
the NRC in March 2001.
\3\ In 2001-2002, AIX had requested that the NRC approve the
structure it had built at the ASRC site as a permanent radiographic
installation. However, the structure required extensive
modifications in order to meet NRC requirements. AIX did not make
the modifications and, as a result, the NRC never approved it. If
the structure had been approved, then AIX would have been authorized
to conduct radiography with only one individual instead of two.
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During the PEC, the company president stated that he could
understand why AIX personnel failed to follow the two-person rule and
that he (the company president) might have done it himself if he were
conducting radiography. One of the reasons for this was the general
belief that the structure provided a similar level of protection as a
permanent radiographic installation.
The company president stated that he ``probably suspected'' that
AIX radiographers were not abiding by the two-person rule, but that he
``never went [to the ASRC site] and tried to catch anybody at it.''
Thus, NRC representatives also questioned AIX regarding the lack of
management oversight from both the former AIX RSO and the company
president.
In addition to the deliberate violations of 10 CFR 34.41(a) and the
willful violation of 10 CFR 30.9(a), the NRC representatives noted
three additional concerns during the June 2008 PEC. First, during a
tour of the ASRC site, the day prior to the June 5th conference, the
two trailers which formed the sides of the structure were found to be
unlocked and open. This was of concern to the NRC staff because of the
potential that ASRC personnel (considered members of the public for
purposes of the regulations) might access the trailers during
radiography and be exposed to radiation or remove some of the trailer
contents, which could reduce the level of shielding. In addition, this
undermined NRC's confidence in AIX to meet its commitments because in
its letter dated November 1, 2007, AIX committed to keep the trailers
locked and to control access to the trailers. This commitment was made
to the NRC as a consideration for lifting the Order Suspending License
dated October 19, 2007. On June 4, 2008, the NRC staff requested that
AIX review the issue and provide additional assurance it would meet its
commitments to the NRC. Second, the NRC staff was concerned that
radiation streaming could occur through the back of the structure
because there was an opening in between the two trailers which formed
the back of the structure. The staff questioned whether radiation
surveys were conducted to establish that the radiation rope boundaries
were adequate. This was important because of the possibility that ASRC
personnel (considered members of the public) might at times be present
behind the structure and could be exposed to radiation areas in excess
of NRC limits. And third, the NRC staff noted that although the focus
of the June 5th PEC was deliberate violations associated with
radiography at the ASRC site, other examples of failures to comply with
10 CFR 34.41(a) were identified at AIX's Golovin site. Although the NRC
did not find any deliberate misconduct associated with the 10 CFR
34.41(a) violations at the AIX Golovin site, corrective actions were
needed to correct the violations at that site.
AIX's corrective actions presented at the June 5th PEC included:
(1) Continuing to contract with an independent contractor to conduct
inspections of AIX radiographers, as AIX committed in response to the
NRC's Order Suspending Licensed Activities (EA-07-261) dated October
19, 2007; (2) changing the RSO in November 2007; (3) reducing the
number of radiographic exposures at the Golovin site with NRC-licensed
material; (4) modifying contractual agreements with ASRC to reduce
schedule pressures and to ensure compliance with 10 CFR 34.41(a); and
(5) instituting a disciplinary policy to terminate any radiographer who
did not follow the two-person rule. The NRC representatives also
discussed concerns about whether the independent oversight was as
effective as it could or should be.
These corrective actions did not address the NRC's concerns about
AIX's lack of management oversight in AIX's radiography activities
including the failure to ensure that its employees, including the
former AIX RSO, were following NRC requirements, despite the company
president's suspicions that violations were occurring, as well as the
fact that corrective actions for the 2001 enforcement action were not
effective. As a result, the NRC representatives provided AIX with more
time to provide
[[Page 50653]]
any additional corrective actions. By letter dated June 9, 2008, AIX
provided additional corrective actions which included: (1) Conducting
monthly safety meetings; (2) a commitment from the company president to
independently and personally review (audit) each crew on a quarterly
basis at a minimum; (3) performing surveys around the ASRC radiation
exposure area, where instantaneous dose rates were found to exceed 20
millirem/hour in several areas, and AIX applying additional dirt
(shielding) to the perimeter of the structure; and (4) locking and
rebolting the doors to the trailers at the ASRC site which AIX uses as
shielding around the area where radiographic exposures are performed.
In summary, based on the information developed during the
inspection, the investigation, and the PEC, the NRC has determined that
two violations of NRC requirements occurred. These violations are cited
in the enclosed Notice of Violation and Proposed Imposition of Civil
Penalty (Notice) dated the same day as this Order, and the
circumstances surrounding them are described in detail in the subject
inspection report and the cover letter accompanying this Order. The
violations involve: (1) Performing radiography at a location other than
a permanent radiographic installation without the presence of two
qualified individuals, in violation of 10 CFR 34.41(a), and (2) failing
to provide the NRC with information that was complete and accurate in
all material respects, in violation of 10 CFR 30.9(a). The NRC has
determined that willfulness was associated with both violations.
In assessing the safety significance of the violations, the NRC
notes that, absent deliberate misconduct, performing radiography in
violation of the two-person rule is significant because the use of two
qualified persons during radiographic operations not only provides for
a high level of assurance that members of the public will be prevented
from entering the restricted area during those operations, but also
provides additional protection for the radiographers should one of them
become incapacitated while the source is unshielded. The second
violation, providing the NRC with incomplete or inaccurate information,
impacts the NRC's ability to perform its regulatory function. The
violations were more significant given the pervasive deliberate
misconduct on the part of the AIX radiographers and assistant
radiographers, as well as a senior company official, the RSO at the
time; and the careless disregard on the part of the president of the
company, in providing the NRC with information that was incomplete or
inaccurate. Therefore, these violations have been categorized in
accordance with the NRC Enforcement Policy at Severity Level II.
The NRC has determined that additional actions \4\ are needed to
provide reasonable assurance that the public health and safety, as well
as the health and safety of AIX employees, will be maintained. The
circumstances in this case raise serious concerns about AIX company
management's ability or desire to ensure licensed activities are
conducted without undue risk to the public's health and safety, and
that commitments made to the NRC are honored. Therefore, the NRC is
issuing an Order to require (1) Continued independent oversight with
additional specific conditions to ensure AIX's radiographers follow NRC
requirements, (2) that the trailers be locked and that AIX maintain
control over the key, (3) that AIX contract with an independent
consultant to evaluate the AIX radiation safety procedures for
effectiveness, and to provide training to AIX radiographers and
assistant radiographers, and (4) that the president of AIX, perform
quarterly audits of your radiographers.
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\4\ These actions are in addition to, and separate from, the
attached Notice, which imposes a civil penalty at twice the base for
the Severity Level II problem in the total amount of $20,800. As
fully set out in the Notice, the civil penalty was issued to
emphasize the importance of not engaging in deliberate misconduct,
self-identifying violations, and taking prompt and comprehensive
corrective actions.
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III
Based on the above, the NRC has determined that AIX company
management, including the company president, have not provided the
level of oversight needed for the company to conduct its activities in
compliance with NRC requirements and to meet all its commitments to the
NRC. Consequently, I lack the requisite reasonable assurance that the
Licensee's current operations can be conducted under License No. 50-
16084-01 in compliance with the Commission's requirements and that the
health and safety of the public, including the Licensee's employees,
will be protected. Therefore, the public health and safety interest
require that License No. 50-16084-01 be modified to require additional
actions so as to provide reasonable assurance that the health and
safety of the public will be protected. Furthermore, pursuant to 10 CFR
2.202, I find that the significance of the violations described above
is such that the public health and safety interest require that this
Order be immediately effective.
IV
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and
186 of the Atomic Energy Act of 1954, as amended, the Commission's
regulations in 10 CFR 2.202, 2.205, 10 CFR parts 20, 34, and 10 CFR
150.20, it is hereby ordered, effective immediately, that License No.
50-16084-01 is modified as follows:
(1) AIX shall continue use of an independent contractor to provide
independent oversight of AIX operations.
(a) AIX shall notify the NRC by fax and the contractor documented
in AIX's letter dated November 1, 2007, by phone, fax or e-mail, on a
weekly basis, of the anticipated AIX work schedule for that week. AIX
will immediately notify the contractor daily, by phone, fax and or
email, as requested by the contractor, of any changes to AIX scheduled
activities. AIX must inform the contractor in writing that the
provisions of 10 CFR 30.10 apply to the contractor.
(b) The contractor must conduct unannounced audits and observations
of AIX radiography crews during radiographic exposures in a manner and
location where he is undetected by the radiography crew. After
observing the crews, the contractor may announce himself to the crew in
order to complete his audits of the jobsite. The audits must verify
that AIX personnel are conducting all operations in a safe manner and
in compliance with NRC requirements. The contractor must, to the extent
possible, prevent violations from occurring or continuing as he
observes the radiography crews, even in situations where the crew has
not detected his presence prior to the violation.
(c) The unannounced audits shall be conducted at least twice a
month when work is being performed.
(d) At least 50 percent of the time, on average over a year, the
contractor must conduct unannounced audits during the second half of
work that is scheduled outside of normal business hours. Normal
business hours are 8 a.m. to 5 p.m.
(e) The contractor will provide AIX a monthly report of his audit
activities. The information will be provided to NRC Region IV at the
same time the contractor provides the results to AIX. At a minimum, the
information provided shall include: The date and times of the audit;
the hours (time of the day) in which the crew worked; the names of the
radiographers and assistant radiographers involved in the work;
[[Page 50654]]
whether the contractor was detected by the crew prior to the contractor
announcing his presence; and whether or not radiographic operations
were performed safely and in compliance with NRC requirements. The
monthly reports will be sent to the Director, Division of Nuclear
Materials Safety, U.S. NRC Region IV.
(f) Individuals with whom AIX contracts to meet this requirement,
must be approved in advance. AIX currently contracts with an individual
who has received prior approval and further approval for this
individual is not needed. In order to receive prior approval for
another individual to perform these independent audits, AIX must
provide the NRC with information regarding the individual's
qualifications and information concerning any prior working
relationships the individual has had with AIX. This information should
be sent to the Director, Division of Nuclear Materials Safety, U.S. NRC
Region IV.
(2) The trailers that surround the radiographic site at ASRC will
be locked during the conduct of radiography. AIX must maintain control
over the key such that ASRC personnel cannot obtain the key without the
AIX company management's approval.
(3) AIX will contract with an independent consultant to evaluate
the effectiveness of its radiation safety and compliance programs.
(a) Within 60 days of the date of this Order, AIX will submit to
the NRC for approval, the name(s) and qualifications of an independent
consultant to review and evaluate AIX's radiation safety program and
compliance program;
(b) Within 30 days of NRC approval of the consultant, the
consultant will commence an assessment of AIX's radiation safety
program;
(c) The consultant's assessment will review AIX's training program
as follows:
(i) Physical observation of each of AIX's radiographers and
assistant radiographers, on multiple occasions, during the conduct of
radiographic operations, verifying their actions ensure radiation
safety and compliance with NRC requirements. At least 25 percent of the
observations will be conducted at the ASRC site. The purpose of the
observation is to evaluate compliance with NRC requirements and to
provide recommendations to AIX management about improving the work
practices of AIX radiographers to comply with NRC requirements. The
consultant should consider providing recommendations to AIX for
complying with NRC requirements during inclement weather (e.g., winter
conditions) during radiographic operations.
(ii) Perform independent radiation measurements around AIX's
structure used at the ASRC site, taking into account changes in the
shielding characteristics as material inside the trailers that form the
walls of the structure vary. The purpose of the measurements will be to
demonstrate compliance with 10 CFR part 20 limits.
(iii) Evaluate AIX's Operating and Emergency Procedures.
(iv) Evaluate the effectiveness of the current AIX RSO to oversee
the AIX radiation safety program and to ensure compliance with NRC
requirements;
(v) Within 30 days following completion of its reviews, the
consultant will provide AIX a report discussing its findings and
recommendations for program improvements. At the same time the
consultant provides its report to AIX, the consultant will send a copy
to the Director, Division of Nuclear Material Safety, U.S. NRC Region
IV.
(d) Within 30 days of receiving the consultant's report, AIX will
provide the NRC, in writing, its position on how it will address the
consultant's findings. In its correspondence to the NRC, AIX will
identify which of the consultant's recommendations it will implement
and the time frame in which it will implement the recommendations. For
those recommendations AIX does not accept, AIX will provide the NRC
with its justification.
(e) The consultant will provide training to all AIX employees,
managers, and officials. The training will include:
(i) A review of the radiation mishaps involving radiography devices
or gauges;
(ii) A review of the potential actions that NRC may take against an
individual;
(iii) A review of NRC requirements, AIX's license conditions; and
(iv) A review of AIX's Operating and Emergency Procedures.
(4) The president of AIX shall perform quarterly audits of his
radiographers as they conduct radiography. The audits shall include
observations of his crew during radiographic exposures and, to the
extent possible, must include observations such that the crew cannot
detect his presence. At least 25 percent of the observations will be
conducted at the ASRC site during the second half of work that is
scheduled outside of the normal business hours of 8 a.m. to 5 p.m. The
president of AIX must, to the extent possible, prevent violations from
occurring or continuing as he observes the radiography crews, even in
situations where the crew has not detected his presence prior to the
violation. These audits must be separate and apart from any required
audits performed for compliance with 10 CFR 34.43(e). Records shall be
maintained documenting these audits and the results of his
observations.
(5) Information that is required to be sent to the NRC in
Conditions 1-4 above shall be addressed to: Director, Division of
Nuclear Materials Safety, U.S. NRC Region IV; 612 East Lamar Blvd.,
Suite 400, Arlington, TX 76011.
The Regional Administrator, Region IV, may, in writing, relax or
rescind any of the above conditions upon demonstration by the Licensee
of good cause.
V
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order within 20 days of its issuance. In addition, the Licensee and any
other person adversely affected by this Order 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 answer or request
a hearing. A request for extension of time must be directed to the
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
and include a statement of good cause for the extension.
A request for a hearing must be filed in accordance with the NRC E-
Filing rule, which the NRC promulgated in August 2007, 72 FR 49139
(Aug. 28, 2007). The E-Filing process requires participants to submit
and serve documents over the Internet or, in some cases, to mail copies
on electronic optical storage media. Participants may not submit paper
copies of their filings unless they seek a waiver in accordance with
the procedures described below.
To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any NRC proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
when the requestor (or its counsel or representative) already holds an
NRC-issued digital ID certificate). Each requestor will need to
download the Workplace Forms ViewerTM to access the
Electronic
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Information Exchange (EIE), a component of the E-Filing system. The
Workplace Forms ViewerTM is free and is available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information
about applying for a digital ID certificate also is available on NRC's
public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a requestor has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
request for a hearing through EIE. Submissions should be in Portable
Document Format (PDF) in accordance with NRC guidance available on the
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html.
A filing is considered complete at the time the filer submits its
document through EIE. To be timely, electronic filings must be
submitted to the EIE system no later than 11:59 p.m. Eastern Time on
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming
receipt of the document. The EIE system also distributes an e-mail
notice that provides access to the document to the NRC Office of the
General Counsel and any others who have advised the Office of the
Secretary that they wish to participate in the proceeding, so that the
filer need not serve the document on those participants separately.
Therefore, any others who wish to participate in the proceeding (or
their counsel or representative) must apply for and receive a digital
ID certificate before a hearing request is filed so that they may
obtain access to the document via the E-Filing system.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737.
Participants who believe that they have good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by (1) first class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
Participants are requested not to include copyrighted materials in
their works.
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).
If a hearing is requested by a Licensee or a person whose interest
is adversely affected, the Commission will issue an Order designating
the time and place of any hearings. If a hearing is held, the issue to
be considered at such hearing shall be whether this Order should be
sustained. Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any
other person adversely affected by this Order, may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error. 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.
Dated this 20th day of August 2008.
For the Nuclear Regulatory Commission.
Cynthia A. Carpenter,
Director, Office of Enforcement.
[FR Doc. E8-19831 Filed 8-26-08; 8:45 am]
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