[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Notices]
[Pages 52262-52265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24421]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0446; IA-09-044]


In the Matter of: Mr. Christopher S. Loyd Confirmatory Order 
(Effective Immediately)

I

    Mr. Christopher Loyd holds the position of Radiation Safety Officer 
for Earth Exploration, Inc. Earth Exploration, Inc., is the holder of 
Materials License No. 13-26408-01 issued by the U.S. Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Part 30 on June 3, 
1992. The license authorizes Earth Exploration, Inc., to store portable 
gauges at its permanent facilities in Indianapolis and South Bend, 
Indiana,

[[Page 52263]]

and to use those portable gauges at temporary job sites. Mr. Loyd was 
named as Radiation Safety Officer on the license in 2002.
    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on August 25, 2009.

II

    On July 21, 2008, the NRC conducted an onsite inspection at the 
Earth Exploration, Inc., main office in Indianapolis, Indiana and at 
two temporary job sites in Indianapolis. Additional onsite inspections 
were held on August 14 and 15, 2008, at the South Bend field office and 
a temporary job site in South Bend, Indiana. The purpose of the 
inspections was to review licensee activities related to radiation 
safety and to assess licensee compliance with the Commission's rules 
and regulations and with the conditions of the Earth Exploration, Inc., 
license. As a result of the inspection observations, the NRC Office of 
Investigations (OI) initiated an investigation (OI Case No. 3-2008-026) 
and on April 27, 2009, the NRC preliminarily determined that apparent 
violations of NRC requirements had occurred at Earth Exploration, Inc. 
The apparent violations included, among others, failure to: (1) Perform 
annual reviews of the radiation protection program as required by 10 
CFR 20.1101(c); (2) perform leak testing of sealed sources as required 
by License Condition 13; (3) perform physical inventories every six 
months of sealed sources as required by License Condition 16; (4) 
ensure that dosimetry provided to gauge users was processed and 
evaluated by a processor approved through the National Voluntary 
Laboratory Accreditation Program as required by License Condition 21; 
and (5) ensure through the Radiation Safety Officer that required tests 
and conditions of the NRC license are performed as required by License 
Condition 21. The NRC preliminarily determined that Mr. Christopher 
Loyd's actions, as the Radiation Safety Officer, caused the licensee to 
be in apparent violation of the above requirements resulting in an 
apparent violation of 10 CFR 30.10.
    The results of the investigation were sent to Mr. Christopher Loyd 
in a letter dated July 21, 2009. This letter offered Mr. Loyd the 
opportunity to either participate in ADR mediation or to attend a 
Predecisional Enforcement Conference. In response to the NRC's offer, 
Mr. Loyd requested use of the NRC's ADR process to resolve the 
differences he had with the NRC. On July 31, 2009, the NRC and Mr. Loyd 
agreed to mediation. On August 25, 2009, the NRC and Mr. Loyd 
participated in an ADR session mediated by a professional mediator, 
arranged through Cornell University's Institute on Conflict Resolution. 
As used by the NRC, ADR is a process in which a neutral mediator with 
no decision-making authority assists the parties in reaching an 
agreement on resolving any differences regarding the dispute. This 
Confirmatory Order is issued pursuant to the agreement reached during 
the ADR process.

III

    During the August 25, 2009, ADR session, a preliminary settlement 
agreement was reached. The elements of the agreement consisted of the 
following:
    1. Within three months of the date of the Confirmatory Order, Mr. 
Loyd agrees to conduct ``lessons learned'' training, to address 
oversight of the radiation safety program; duties and responsibilities 
of the RSO; and transportation, use, and security for portable gauges. 
The training shall also address employees' responsibility to report 
safety concerns to licensee management and the availability of 
informing the NRC of any concerns. Within two weeks of completing this 
internal training for all these employees, Mr. Loyd will submit an 
outline of the presentation and a list of attendees to the Director for 
the Division of Nuclear Materials Safety, NRC, Region III, on behalf of 
Earth Exploration, Inc.
    2. Within 30 days of the date of the Confirmatory Order, Mr. Loyd 
agrees to prepare and submit to the Director for the Division of 
Nuclear Materials Safety, NRC, Region III, a plan to inform others of 
the lessons learned about the importance of ensuring robust radiation 
safety program requirements and developing the necessary infrastructure 
and communication paths to identify and resolve competing priorities 
that may preclude successful implementation. As a part of the plan, Mr. 
Loyd will submit either the article or a presentation outline to the 
Director for the Division of Nuclear Materials Safety, NRC, Region III, 
for review prior to its use.
    3. Mr. Loyd agrees to prepare and submit to the Director for the 
Division of Nuclear Materials Safety, NRC, Region III, and to his 
management at Earth Exploration, Inc., a document which describes the 
radiation safety activities completed every three months for a period 
of two years. The first report shall be submitted within 90 days of the 
date of the Confirmatory Order.
    4. Mr. Loyd agrees to submit to the Director for the Division of 
Nuclear Materials Safety, NRC, Region III and to his management at 
Earth Exploration, Inc., a plan on how he will accomplish all of the 
tasks assigned to him as Radiation Safety Officer, and what steps he 
will take to ensure that the infrastructure exists for those duties 
with a long periodicity (i.e., one a year) within 60 days of the date 
of the Confirmatory Order.
    5. Mr. Loyd, by signing the Agreement in Principle, makes no 
admission that he deliberately violated any NRC requirements and this 
agreement is settlement of a disputed claim in order to avoid further 
action by the NRC.
    6. The NRC agrees to not pursue any further enforcement action in 
connection with the NRC's July 21, 2009, letter to Mr. Loyd. This does 
not prohibit the NRC from taking an enforcement action, in accordance 
with the NRC Enforcement Policy, if Mr. Loyd commits a similar 
violation in the future or violates the Order.
    On September 10, 2009, Mr. Christopher Loyd consented to issuing 
this Order with the commitments, as described in Section V below. Mr. 
Loyd further agreed that this Order is to be effective upon issuance 
and that he has waived his right to a hearing.

IV

    Since Mr. Christopher Loyd has agreed to take additional actions to 
address the NRC's concerns, as set forth in Item III above, the NRC has 
concluded that its concerns can be resolved through issuance of this 
Order.
    I find that Mr. Loyd's commitments as set forth in Section V 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 public health and safety require that 
Mr. Loyd's commitments be confirmed by this Order. Based on the above, 
and Mr. Loyd's consent, this Order is immediately effective upon 
issuance.

V

    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:
    1. Mr. Christopher Loyd shall, within three months of the date of 
the Confirmatory Order, conduct ``lessons learned'' training. The 
training shall address oversight of the radiation safety program; 
duties and responsibilities of

[[Page 52264]]

the Radiation Safety Officer; and transportation, use, and security for 
portable gauges. The training shall also address employees' 
responsibility to report safety concerns to licensee management and the 
availability of informing the NRC of any concerns. Within two weeks of 
completing this internal training, Mr. Loyd shall submit an outline of 
the presentation and a list of attendees to the Director for the 
Division of Nuclear Materials Safety, NRC, Region III.
    2. Mr. Christopher Loyd shall, within 30 days of the date of the 
Confirmatory Order, prepare and submit to the Director for the Division 
of Nuclear Materials Safety, NRC, Region III, a plan to inform others 
of the lessons learned about the importance of ensuring robust 
radiation safety program requirements and developing the necessary 
infrastructure and communication paths to identify and resolve 
competing priorities that may preclude successful implementation. As a 
part of the plan, Mr. Loyd shall submit either the article or a 
presentation outline, to the Director for the Division of Nuclear 
Materials Safety, NRC, Region III for review prior to its use.
    3. Mr. Loyd shall prepare and submit to the Director for the 
Division of Nuclear Materials Safety, NRC, Region III, and to his 
management at Earth Exploration, Inc., a document which describes the 
radiation safety activities completed every three months for a period 
of two years. The first report shall be submitted within 90 days of the 
date of the Confirmatory Order.
    4. Mr. Loyd shall submit to the Director for the Division of 
Nuclear Materials Safety, NRC, Region III and to his management at 
Earth Exploration, Inc., a plan on how he will accomplish all of the 
tasks assigned to him as Radiation Safety Officer, and what steps he 
will take to ensure that the infrastructure exists for those duties 
with a long periodicity (i.e. one a year) within 60 days of the date of 
the Confirmatory Order.
    The Regional Administrator, NRC Region III, may, in writing, relax 
or rescind any of the above conditions upon demonstration by Mr. Loyd 
of good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Christopher Loyd, may request a hearing within 20 days of the 
Order's publication in the Federal Register. 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 directed to the Director, 
Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, 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 on August 28, 2007, 72 FR 49139. 
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 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 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 using the agency's adjudicatory e-
filing system 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 Meta-System Help Desk, which is 
available between 8 a.m. and 8 p.m., Eastern Time, Monday through 
Friday, excluding government holidays. The Meta-System Help Desk can be 
contacted by telephone at 1-866-672-7640 or by e-mail at 
[email protected].
    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

[[Page 52265]]

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 Mr. Christopher Loyd 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) and (f).
    If the 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 V above shall be final 20 days from the 
date this Order is published in the Federal Register without further 
order or proceedings. If an extension of time for requesting a hearing 
has been approved, the provisions specified in Section V 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.

    For the U.S. Nuclear Regulatory Commission.

    Dated this 1st day of October 2009.
Cynthia D. Pederson,
Deputy Regional Administrator, Region III.
[FR Doc. E9-24421 Filed 10-8-09; 8:45 am]
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