[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Pages 64759-64761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29199]



[Docket No. 70-143; License No. SNM-124; EA-08-321; NRC-2009-0528]

In the Matter of Nuclear Fuel Services, Inc., Erwin, TN; 
Confirmatory Order Modifying License (Effective Immediately)


    Nuclear Fuel Services, Inc. (NFS or Licensee) is the holder of 
Special Nuclear Materials License No. SNM-124 issued by the Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 70 on 
July 2, 1999. The license authorizes the operation of the NFS facility 
in accordance with the conditions specified therein. The facility is 
located on the Licensee's site in Erwin, Tennessee.
    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) session conducted on 
September 16, 2009.


    On October 21, 2008, the NRC's Office of Investigations (OI) 
initiated a review of an October 2007 incident that occurred at the 
Licensee's facility in which the hearing test portion of a medical 
examination was not administered to two security officers. The NRC's 
letter of February 26, 2009, documented two apparent violations of NRC 
requirements. The apparent violations involved the actions of a primary 
physician for licensed activities for Nuclear Fuel Services, Inc., who 
on October 19, 2007, certified on two security medical examination 
forms that the named security officers were medically qualified per 
medical standards when in fact their medical evaluation had not been 
completed. Specifically, the two security officers had not been 
administered the hearing test portion of the medical examination. As a 
result, Nuclear Fuel Services, Inc., maintained incomplete and 
inaccurate information, in violation of 10 CFR 70.9(a). Additionally, 
the security officers were assigned to perform security duties without 
proper suitability certification between October 23, 2007, and February 
9, 2008, in violation of 10 CFR 73.46(b)(4).


    On September 16, 2009, the NRC and NFS met in an ADR session 
mediated by a professional mediator, which was arranged through Cornell 
University's Institute on Conflict Resolution. ADR is a process in 
which a neutral mediator with no decision-making authority assists the 
parties in reaching an agreement or resolving any differences regarding 
their dispute. This confirmatory order is issued pursuant to the 
agreement reached during the ADR process. The elements of the agreement 
consist of the following:
    (1) NFS agrees that the two issues discussed in the NRC's letter of 
February 26, 2009, represent violations of regulatory requirements.
    (2) To preclude recurrence of the violations and to address NRC 
concerns, NFS completed the following corrective actions and 
    a. On February 5, 2008, both security officers were removed from 
security duties and scheduled for hearing tests. The security officers 
passed the test.
    b. On February 5, 2008, a Security Training Specialist performed a 
query on physical examinations completed during the same time frame 
(October 15-26, 2007) and reviewed physical exam paperwork for 
additional discrepancies. No additional discrepancies were identified.
    c. On February 6, 2008, the Security Training Manager met with the 
Contract Security Scheduler and the Security Training Specialists to 
reinforce the importance of physical exam

[[Page 64760]]

requirements and provided instructions on performing a proper review of 
physical exams and immediate actions to take for identified 
    d. On February 6, 2008, the Security Training Manager met with the 
primary physician for licensed activities and reinforced the importance 
of physical exam requirements regarding the Site Training and 
Qualification Plan.
    e. On February 6, 2008, NFS received physical exam paperwork 
documenting the successful completion of hearing tests for the two 
security officers and allowed officers to resume security duties.
    f. NFS created procedure NFS-SEC-008 in March 2009 to educate the 
security work force on basic physical qualification requirements.
    g. NFS has instituted an administrative check process to ensure 
that all required information is annotated on the incoming physical 
exam forms.
    (3) In addition to the actions completed by NFS as discussed above, 
NFS agreed to additional corrective actions and enhancements, as fully 
delineated below in Section V of the Confirmatory Order.
    (4) The NRC and NFS agree that the elements discussed in Sections 
III and V will be incorporated into a Confirmatory Order. The resulting 
Confirmatory Order will be considered by the NRC for any future 
assessment of NFS, as appropriate.
    (5) NFS agrees to complete the items listed in Section V within 12 
months of issuance of the Confirmatory Order.
    (6) Within three months of completion of the terms of the 
Confirmatory Order, NFS will provide the NRC with a letter discussing 
its basis for concluding that the Confirmatory Order has been 
    (7) In consideration of the commitments delineated in Section III 
and V, the NRC agrees to refrain from proposing a civil penalty or 
issuing a Notice of Violation for all matters discussed in the NRC's 
letter to NFS of February 26, 2009 (EA-08-321).
    (8) This agreement is binding upon successors and assigns of NFS.


    Since NFS has completed the actions as delineated in Section III.2, 
and agreed to take the actions as set forth in Section V, the NRC has 
concluded that its concerns can be resolved through issuance of this 
    I find that NFS's commitments as set forth in Section V are 
acceptable and necessary and conclude that with these commitments the 
public health and safety and common defense and security are reasonably 
assured. In view of the foregoing, I have determined that public health 
and safety require that NFS's commitments be confirmed by this Order. 
Based on the above and NFS's consent, this Order is immediately 
effective upon issuance.


    Accordingly, pursuant to Sections 51, 53, 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 70, it is hereby ordered, 
effective immediately, that License No. SNM-124 is modified as follows:
    (1) NRC acknowledged NFS' ongoing efforts in implementation of the 
Safety Culture Improvement Plan (SCIP) as prescribed in the NRC's 
Confirmatory Order of February 21, 2007, and its benchmarking efforts 
and Corrective Action Program (CAP) improvements. However, NFS also 
agrees to assess why the incident referenced in Section II was not 
entered into its CAP and why a formal root cause evaluation was not 
completed. Based on this review, NFS will implement corrective actions 
to ensure that the CAP thresholds for conducting root cause evaluations 
are appropriate. As part of the above assessment, NFS agrees to 
additional benchmarking efforts, as warranted, to identify and 
implement best practices, including the area of root cause analysis, 
thresholds, and processes.
    (2) NFS agrees to initiate and complete actions to ensure an 
understanding of the extent of condition (including vulnerability of 
other physician certified processes such as respirator qualification).
    (3) NFS agrees to benchmark other licensees in their oversight of 
services provided by any primary physician for licensed activities, to 
identify and implement best practices and enhancements to ensure the 
quality and accuracy of licensed physician services.
    (4) For a period of one year after issuance of the Confirmatory 
Order, NFS will ensure that the primary physician responsible for 
licensed activities meets at least quarterly with a physician engaged 
in NRC-regulated activities, to review unique or noteworthy issues 
relevant to compliance with NRC regulations. At the conclusion of the 
one-year period, NFS will determine the appropriate frequency for 
continuing such interactions.
    (5) NFS will ensure that the primary physician for licensed 
activities initiates a one time, mutual review of processes and 
procedures with an industry counterpart involved with applicable NRC-
regulated activities. The results of this review will be documented and 
made available for NRC review. NFS will consider corrective actions and 
enhancements based on the review.
    (6) NFS will establish appropriate standards for the primary 
physician for licensed activities and other contract medical 
specialists. These standards will include applicable regulatory 
requirements, continuing education requirements (such as industry peer 
group membership and certification), and an NFS specific lesson plan.
    (7) NFS will formalize its administrative check used to ensure all 
required information is annotated on the incoming physical exam forms 
by revising procedure NFS-SEC-008.
    (8) NFS agrees to complete the items listed in Section V within 12 
months of issuance of the Confirmatory Order.
    (9) Within three months of completion of the terms of the 
Confirmatory Order, NFS will provide the NRC with a letter discussing 
its basis for concluding that the Confirmatory Order has been 
    The Regional Administrator, NRC Region II, may relax or rescind, in 
writing, any of the above conditions upon a showing by NFS of good 


    Any person adversely affected by this Confirmatory Order, other 
than NFS, may request a hearing within 20 days of its 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.
    If a person other than NFS 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 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 
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 

[[Page 64761]]

governmental entities participating under 10 CFR 2.315(c), must be 
filed in accordance with the NRC E-Filing rule, (72 FR 49139, Aug. 28, 
2007). The E-Filing process requires participants to submit and serve 
all adjudicatory documents over the internet, or in some cases to mail 
copies on electronic storage media. Participants may not submit paper 
copies of their filings unless they seek an exemption in accordance 
with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
[email protected], or by telephone at (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 proceeding in which it is participating; and 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the hearing in this 
proceeding if the Secretary has not already established an electronic 
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Help Desk will not be able to offer assistance in using 
unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's on-line, web-based submission form. In order 
to serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing 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 
E-Filing 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 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can 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 by contacting the NRC Meta-System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
[email protected], or by a toll-free call at (866) 672-7640. The 
NRC Meta-System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, 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. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    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, or the 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, unless an NRC regulation or other law requires submission of 
such information. 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 submission.


    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.

    Dated this 23rd day of November 2009.

    For the Nuclear Regulatory Commission.
Victor M. McCree,
Deputy Regional Administrator for Operations.
[FR Doc. E9-29199 Filed 12-7-09; 8:45 am]