[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Notices]
[Pages 52265-52267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24423]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[NRC-2009-0445, Docket Number 030-32764, License Number 13-26408-01,
EA-09-114]
In the Matter of Earth Exploration, Inc.: Indianapolis, IN;
Confirmatory Order (Effective Immediately)
I
Earth Exploration, Inc., (Earth Exploration or licensee) 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 to store
portable gauges at its permanent facilities in Indianapolis and South
Bend, Indiana, and to use those portable gauges at temporary job sites.
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 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
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. The
apparent violations included 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 6 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; (5) ensure through the Radiation
Safety Officer that required tests and conditions of the NRC license
are performed as required by License Condition 21; (6) secure, on
multiple occasions, portable gauges using two independent physical
barriers as required by 10 CFR 30.34(i); and (7) lock a gauge or gauge
case when in storage as required by License Condition 19. Additionally,
the NRC identified five potential violations of 10 CFR 71.5 in regard
to transportation of radioactive material in accordance with Department
of Transportation regulations in 49 CFR. These potential violations
included failure to: (1) Ensure proper/legible markings on packages as
required by 49 CFR 178.3(a); (2) label transport packages as required
by 49 CFR 172.403(b); (3) block and brace two packages as required by
49 CFR 177.842(b); (4) ensure the accessibility of shipping papers as
required by 49 CFR 177.817(e); and (5) provide an emergency response
telephone number which is monitored at all times when radioactive
material is in transportation as required by 49 CFR 172.604(a)(1).
The results of the investigation were sent to Earth Exploration in
a letter dated July 21, 2009. This letter offered Earth Exploration the
opportunity to either participate in ADR mediation or to attend a
Predecisional Enforcement Conference. In response to the NRC's offer,
Earth Exploration requested use of the NRC's ADR process to resolve the
issues. On July 31, 2009, the NRC and Earth Exploration agreed to
mediation. On August 25, 2009, the NRC and Earth Exploration
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. Earth Exploration acknowledges the above violations and confirms
that the violations have been corrected as of August 31, 2008.
2. Earth Exploration agrees to retain a qualified consultant to
audit the performance of its radiation safety program on an annual
basis for a period of 5 years, with the first audit occurring within 3
months of the date of the Confirmatory Order. Copies of the
consultant's audit reports will be submitted to the Director for the
Division of Nuclear Materials Safety, Region III, NRC, within 6 weeks
following completion of the audit.
3. Earth Exploration agrees that the Radiation Safety Officer's
supervisor, and two individuals acting as assistant Radiation Safety
Officers, one each from the South Bend and Indianapolis offices, will
receive training on how to manage a radiation safety program. The
training is to be scheduled within 3 months of the date of the
Confirmatory Order and the training is to be conducted within 6 months
of the date of the Confirmatory Order. Within 2 weeks of completion of
the training, Earth Exploration will submit to the Director for the
Division of Nuclear Materials Safety, Region III, NRC, the course
syllabus (to include the dates
[[Page 52266]]
and location of the course) and a list of attendees.
4. Within 3 months of the date of the Confirmatory Order, Earth
Exploration agrees to conduct ``lessons learned'' training, to be given
by the Radiation Safety Officer and to be attended by all employees
involved in gauge use, to address oversight of the radiation safety
program; duties and responsibilities of 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 2 weeks of completing this internal training for all
employees involved in gauge use, Earth Exploration will submit an
outline of the presentation and a list of attendees to the Director for
the Division of Nuclear Materials Safety, Region III, NRC.
5. Within 30 days of the date of the Confirmatory Order, Earth
Exploration agrees to have the Radiation Safety Officer prepare and
submit to the Director for the Division of Nuclear Materials Safety,
Region III, NRC, a plan to inform other organizations 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, Earth
Exploration will submit either the article or a presentation outline to
the Director for the Division of Nuclear Materials Safety, Region III,
NRC, for review prior to its use.
6. Earth Exploration, by signing the Agreement in Principle, makes
no admission that any employee of Earth Exploration deliberately
violated any NRC requirements and this agreement is settlement of a
disputed claim in order to avoid further action by the NRC.
7. The NRC agrees to not pursue any further enforcement action in
connection with the NRC's July 21, 2009, letter to Earth Exploration.
This does not prohibit the NRC from taking an enforcement action, in
accordance with the NRC Enforcement Policy, if Earth Exploration
commits a similar violation in the future or violates the Order.
On September 10, 2009, Earth Exploration consented to issuing this
Order with the commitments, as described in Section V below. Earth
Exploration further agreed that this Order is to be effective upon
issuance and that it has waived its right to a hearing.
IV
Since Earth Exploration has agreed to take additional actions to
address NRC 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 the licensee'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
Earth Exploration's commitments be confirmed by this Order. Based on
the above, and Earth Exploration'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. Earth Exploration shall retain a qualified consultant to audit
the performance of its radiation safety program on an annual basis for
a period of 5 years, with the first audit occurring within 3 months of
the date of the Confirmatory Order. Copies of the consultant's audit
reports will be submitted to the Director for the Division of Nuclear
Materials Safety, Region III, NRC, within 6 weeks following completion
of the audit.
2. Earth Exploration shall ensure that the Radiation Safety
Officer's supervisor, and two individuals acting as assistant Radiation
Safety Officers, one each from the South Bend and Indianapolis offices,
will receive training on how to manage a radiation safety program. The
training shall be scheduled within 3 months of the date of the
Confirmatory Order and the training is to be conducted within 6 months
of the date of the Confirmatory Order. Within 2 weeks of completion of
the training, Earth Exploration shall submit to the Director for the
Division of Nuclear Materials Safety, Region III, NRC, the course
syllabus (to include the dates and location of the course) and a list
of attendees.
3. Earth Exploration shall, within 3 months of the date of the
Confirmatory Order, conduct ``lessons learned'' training, to be given
by the Radiation Safety Officer and to be attended by all employees
involved in gauge use. The training shall address oversight of the
radiation safety program; duties and responsibilities of 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 2 weeks of completing this
internal training for all employees involved in gauge use, Earth
Exploration shall submit an outline of the presentation and a list of
attendees to the Director for the Division of Nuclear Materials Safety,
Region III, NRC.
4. Earth Exploration shall, within 30 days of the date of the
Confirmatory Order, prepare and submit to the Director for the Division
of Nuclear Materials Safety, Region III, NRC, a plan to inform other
organizations 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, Earth Exploration shall submit
either the article or a presentation outline, to the Director for the
Division of Nuclear Materials Safety, Region III, NRC, for review prior
to its use.
The Regional Administrator, Region III, NRC, may, in writing, relax
or rescind any of the above conditions upon demonstration by Earth
Exploration of good cause.
VI
Any person adversely affected by this Confirmatory Order, other
than Earth Exploration, 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 in 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
[[Page 52267]]
[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 ViewerJ 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
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 Earth Exploration 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. E9-24423 Filed 10-8-09; 8:45 am]
BILLING CODE 7590-01-P