[Federal Register Volume 84, Number 148 (Thursday, August 1, 2019)]
[Notices]
[Pages 37685-37688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16368]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos. 050-00284, 070-01374, 030-32322, and 030-38726; NRC-2019-
0156]


In the Matter of Idaho State University

AGENCY: Nuclear Regulatory Commission.

ACTION: Confirmatory order; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) issued a 
confirmatory order to Idaho State University on May 2, 2019. The 
purpose of the confirmatory order was to document commitments made as 
part of a settlement agreement between Idaho State University and the 
NRC to address inadequate management oversight for Idaho State 
University's radiation protection program and a failure to prioritize 
resources for the radiation safety staff such that their 
responsibilities could be implemented. The confirmatory order also 
documented commitments to address Idaho State University's failure to 
effectively control radioactive materials in its possession, exhibited 
by multiple violations identified during inspections and the inadequate 
extent of condition review related to the violations involving a lost 
source.

DATES: The confirmatory order was issued and effective on May 2, 2019.

ADDRESSES: Please refer to Docket ID NRC-2019-0156 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0156. Address 
questions about NRC dockets IDs in Regulations.gov to Jennifer Borges; 
telephone: 301-287-9127; email: [email protected]. For technical 
questions, contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to [email protected]. The Confirmatory Order to Idaho State 
University is available in ADAMS under Accession No. ML19122A123.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Casey Alldredge, Region IV, U.S. 
Nuclear Regulatory Commission, Arlington, TX 76011-4511; telephone: 
817-681-3027, email: [email protected].

SUPPLEMENTARY INFORMATION: The text of the Order is attached.

    Dated at Rockville, Maryland, this 26th day of July, 2019.

    For the Nuclear Regulatory Commission.
Scott A. Morris,
Regional Administrator, NRC Region IV.

Attached--Confirmatory Order

I

    Idaho State University (ISU or licensee) is the holder of the 
licenses identified in the Attachment to this Confirmatory Order issued 
by the U.S. Nuclear Regulatory Commission (NRC or Commission), in 
accordance with the Atomic Energy Act of 1954, as amended, and Parts 
30, 40, 50, and 70 of Title 10 of the Code of Federal Regulations (10 
CFR).
    This Confirmatory Order is the result of an agreement reached 
during an alternative dispute resolution (ADR) mediation session 
conducted on March 27, 2019.

II

    On January 10, 2019, the NRC issued Inspection Report 030-32322/
2018-001 (Agencywide Documents Access and Management System (ADAMS) 
Accession ML19011A015) to ISU which documented the identification of 
one apparent violation that was considered for escalated enforcement 
action in accordance with the NRC Enforcement Policy. The apparent 
violation of 10 CFR 30.34(i) involved the failure to secure two 
portable gauges containing radioactive sources to prevent unauthorized 
access or removal.
    By letter dated January 10, 2019, the NRC notified ISU of the 
results of the inspection with an opportunity to: (1) Attend a 
predecisional enforcement conference or (2) participate in an ADR 
mediation session in an effort to resolve this concern.
    In response to the NRC's offer, ISU requested the use of the NRC's 
ADR process. On March 27, 2019, the NRC and ISU met in an ADR session 
mediated by a professional mediator, arranged through Cornell 
University's Institute on Conflict Resolution. The ADR process is one 
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 ADR session, ISU and the NRC reached a preliminary 
settlement agreement. The elements of the agreement included the list 
of violations, corrective actions that ISU already completed, and 
future agreed upon actions as follows:

Severity Level IV Violations in NRC Inspection Report 030-32322/2018-
001

    A. Failure to ensure that each container of licensed material bore 
a durable, clearly visible label that provided sufficient information 
to permit individuals handling or using the containers, or working in 
the vicinity of the containers, to take precautions to avoid or 
minimize exposures;
    B. Failure to conduct a physical inventory every 6 months to 
account for all sealed sources possessed under the license;
    C. Failure to permit access to contamination areas only when staff 
were under the supervision of senior

[[Page 37686]]

Environmental Health and Safety Department personnel;
    D. Failure to clearly document surveys so that others can 
understand them and removed postings in a decommissioned lab without 
approval of the radiation safety officer;
    E. Failure to transfer radioactive materials to another 
organization only when authorization was obtained from the radiation 
safety officer;
    F. Failure to post each area or room in which there was used or 
stored an amount of licensed material exceeding 10 times the quantity 
of such material specified in Appendix C to 10 CFR part 20 with a 
conspicuous sign or signs bearing the radiation symbol and the words 
``CAUTION, RADIOACTIVE MATERIAL(S)'' or ``DANGER, RADIOACTIVE 
MATERIAL(S)'';
    G. Failure to prominently post an area to control the spread or 
accidental intake of radioactive materials as a contamination 
controlled area;
    H. Failure to conduct routine radiological surveys evaluating both 
the strength of any radiation fields present and as appropriate, the 
potential presence of radioactive material contamination at a regular 
periodicity, no less than monthly in labs where dispersible radioactive 
material is used;
    I. Failure to ensure that: (1) Potential radiation exposures from 
any source, or within any facility, were evaluated by the radiation 
safety officer or designee to determine protection and monitoring 
requirements; (2) work areas where radioactive materials had been used 
and storage areas for these materials were surveyed for external 
exposure rates whenever changes were made in the quantities, locations 
or shielding; and (3) user laboratory survey frequencies were daily 
when radioactive materials were in use or as otherwise specified by 
Environmental Health and Safety;
    J. Failure to test the fume hoods at least annually; and
    K. Failure to periodically (at least annually) review the radiation 
protection program content and implementation.

Corrective Actions Taken by Idaho State University Include

    A. Permanent transfer of five portable gauges out of ISU inventory 
to authorized recipients.
    B. Specific corrective actions and commitments of programmatic 
changes described in the ISU letter to the NRC, dated February 11, 
2019, ADAMS Accession ML19044A380.

The Elements of the Agreement, as Signed by Both Parties, Consist of 
the Following

Third-Party Audit and Causal Evaluation
    A. Within 90 days of the issuance date of the Confirmatory Order, 
one or more third-party person(s) selected by ISU will complete a 100 
percent source inventory and submit the results in writing to the NRC 
and the independent auditor identified and approved in Condition B.
    B. Within 30 days of the issuance date of the Confirmatory Order, 
ISU will submit to the NRC for approval the resum[eacute] of one or 
more third-party persons knowledgeable in the various types of licensed 
activities at ISU. The person(s) must also have appropriate experience 
and knowledge of performing audits of the various licensed activities 
at ISU, performing causal analyses, and development of corrective 
action plans based on the audit findings and the cause evaluations.
    C. The independent third-party person(s) will:
    1. Within 150 days of the NRC's approval of the third-party 
person(s), complete an independent audit of NRC licensed activities 
across all four NRC licenses (broad scope, production, research and 
test reactor, and special nuclear material) and provide a report to the 
NRC of the audit findings. The audit will include, at a minimum: 
Observation of activities, knowledge interviews of ISU workers and 
staff, records review, review of the radiation safety committee 
activities, and approval of authorized users and their uses of licensed 
material. Over the course of the audit, potential findings must be 
discussed with ISU management in order to allow ISU to provide any 
additional information necessary for the auditors to consider in 
assessing the validity of the finding.
    2. Within 60 days after completing the audit above, complete a 
causal evaluation of the audit findings and NRC enforcement actions 
from January 1, 2017, to the issuance date of the Confirmatory Order. 
The independent third-party person(s) may also conduct causal 
evaluations as needed to determine causes of specific significant 
issues. The third-party person(s) shall discuss their causal 
methodologies and recommended corrective actions with ISU management in 
order to allow ISU to provide any additional information necessary for 
the auditors to consider in assessing the validity of their causal 
evaluations.
Corrective Actions
    D. Within 60 days of receiving the third-party person(s) causal 
evaluation and recommended corrective actions, ISU shall submit to the 
NRC its corrective action plan with a schedule for completion of the 
actions it takes. If ISU determines it will not adopt one or more 
recommended corrective actions from the third-party person(s), ISU must 
identify to the NRC, in its plan, the basis for not accepting the 
third-party recommendation(s). All corrective actions must be completed 
within 18 months of the corrective action plan submittal to the NRC.
    E. Within 90 days of the issuance date of the Confirmatory Order, 
ISU shall develop a procedure to enhance management oversight by 
requiring radiation safety committee members to participate in 
radiation safety program audits.
Effectiveness Review
    F. Within 6 months after submitting the corrective action plan to 
the NRC and every 6 months thereafter (subject to Condition G), ISU 
will perform an effectiveness review of its corrective actions. The 
review must include at least one independent third-party person on the 
assessment team. Within 30 days of completion of the effectiveness 
review, ISU will submit a report to the NRC with the results of its 
review, the status of the corrective action plan, and the revisions/
modifications to the corrective action plan to address any findings.
    G. Within 6 months after completion of all corrective actions, ISU 
will perform a final effectiveness review and submit the report to the 
NRC.
Administrative Items
    H. The NRC and ISU agree that the above elements will be 
incorporated into a Confirmatory Order.
    I. The NRC will consider the Confirmatory Order an escalated 
enforcement action with respect to any future enforcement actions.
    J. In consideration of the elements delineated above, the NRC 
agrees not to issue a Notice of Violation to ISU for the apparent 
violation discussed in NRC Inspection Report 030-32322/2018-001, dated 
January 10, 2019, and not to issue an associated civil penalty.
    Based on the completed actions described above, and the commitments 
described in Section V below, the NRC agrees to not pursue any further 
enforcement action based on the apparent violation identified in the 
NRC's January 10, 2019, letter.
    On April 29, 2019, ISU consented to issuing this Confirmatory Order 
with

[[Page 37687]]

the commitments, as described in Section V below. Idaho State 
University further agreed that this Confirmatory Order is to be 
effective upon issuance, the agreement memorialized in this 
Confirmatory Order settles the matter between the parties, and that it 
has waived its right to a hearing.

IV

    I find that ISU's actions completed, as described in Section III 
above, combined with the 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 
ISU's commitments be confirmed by this Confirmatory Order. Based on the 
above and ISU's consent, this Confirmatory Order is 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 parts 30, 40, 50, and 70, IT IS 
HEREBY ORDERED THAT LICENSE NOS. 11-27380-01, 11-27380-04, SNM-1373, 
AND R-110 ARE MODIFIED AS FOLLOWS:

Third-Party Audit and Causal Evaluation

    A. Within 90 days of the issuance date of the Confirmatory Order, 
one or more third-party person(s) selected by ISU will complete a 100 
percent source inventory and submit the results in writing to the NRC 
and the independent auditor identified and approved in Condition B.
    B. Within 30 days of the issuance date of the Confirmatory Order, 
ISU will submit to the NRC for approval the resum[eacute] of one or 
more third-party persons knowledgeable in the various types of licensed 
activities at ISU. The person(s) must also have appropriate experience 
and knowledge of performing audits of the various licensed activities 
at ISU, performing causal analyses, and development of corrective 
action plans based on the audit findings and the cause evaluations.
    C. The independent third-party person(s) will:
    1. Within 150 days of the NRC's approval of the third-party 
person(s), complete an independent audit of NRC licensed activities 
across all four NRC licenses (broad scope, production, research and 
test reactor, and special nuclear material) and provide a report to the 
NRC of the audit findings. The audit will include, at a minimum: 
Observation of activities, knowledge interviews of ISU workers and 
staff, records review, review of the radiation safety committee 
activities, and approval of authorized users and their uses of licensed 
material. Over the course of the audit, potential findings must be 
discussed with ISU management in order to allow ISU to provide any 
additional information necessary for the auditors to consider in 
assessing the validity of the finding.
    2. Within 60 days after completing the audit above, complete a 
causal evaluation of the audit findings and NRC enforcement actions 
from January 1, 2017, to the issuance date of the Confirmatory Order. 
The independent third-party person(s) may also conduct causal 
evaluations as needed to determine causes of specific significant 
issues. The third-party person(s) shall discuss their causal 
methodologies and recommended corrective actions with ISU management in 
order to allow ISU to provide any additional information necessary for 
the auditors to consider in assessing the validity of their causal 
evaluations.
Corrective Actions
    D. Within 60 days of receiving the third-party person(s) causal 
evaluation and recommended corrective actions, ISU shall submit to the 
NRC its corrective action plan with a schedule for completion of the 
actions it takes. If ISU determines it will not adopt one or more 
recommended corrective actions from the third-party person(s), ISU must 
identify to the NRC, in its plan, the basis for not accepting the 
third-party recommendation(s). All corrective actions must be completed 
within 18 months of the corrective action plan submittal to the NRC.
    E. Within 90 days of the issuance date of the Confirmatory Order, 
ISU shall develop a procedure to enhance management oversight by 
requiring radiation safety committee members to participate in 
radiation safety program audits.
Effectiveness Review
    F. Within 6 months after submitting the corrective action plan to 
the NRC and every 6 months thereafter (subject to Condition G), ISU 
will perform an effectiveness review of its corrective actions. The 
review must include at least one independent third-party person on the 
assessment team. Within 30 days of completion of the effectiveness 
review, ISU will submit a report to the NRC with the results of its 
review, the status of the corrective action plan, and the revisions/
modifications to the corrective action plan to address any findings.
    G. Within 6 months after completion of all corrective actions, ISU 
will perform a final effectiveness review and submit the report to the 
NRC.
    The NRC will consider the Confirmatory Order an escalated 
enforcement action with respect to any future enforcement actions. In 
consideration of the elements delineated above, the NRC agrees not to 
issue a Notice of Violation to ISU for the apparent violation discussed 
in NRC Inspection Report 030-32322/2018-001, dated January 10, 2019, 
and not to issue an associated civil penalty. This agreement is binding 
upon successors and assigns of ISU. The Regional Administrator, Region 
IV may, in writing, relax or rescind any of the above conditions upon 
demonstration by ISU or its successors of good cause.

VI

    In accordance with 10 CFR 2.202 and 10 CFR 2.309, any person 
adversely affected by this Confirmatory Order, other than ISU, may 
request a hearing within 30 calendar days of the date of issuance of 
this Confirmatory Order. 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 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.
    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 (hereinafter 
``petition''), and documents filed by interested governmental entities 
participating under 10 CFR 2.315(c), must be filed in accordance with 
the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 
FR 46562, August 3, 2012). 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 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by email at [email protected], or by 
telephone

[[Page 37688]]

at 301-415-1677, to (1) request a digital identification (ID) 
certificate, which allows the participant (or its counsel or 
representative) to digitally sign submissions and access the E-Filing 
system for any proceeding in which it is participating; and (2) advise 
the Secretary that the participant will be submitting a petition or 
other adjudicatory document (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 
docket.
    Information about applying for a digital ID certificate is 
available on the NRC's public website at http://www.nrc.gov/site-help/e-submittals/getting-started.html. Once a participant has obtained a 
digital ID certificate and a docket has been created, the participant 
can then submit adjudicatory documents. Submissions must be in Portable 
Document Format (PDF). Additional guidance on PDF submissions is 
available on the NRC's public website at http://www.nrc.gov/site-help/electronic-sub-ref-mat.html. A filing is considered complete at the 
time the document is 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 email notice confirming receipt of the document.
    The E-Filing system also distributes an email notice that provides 
access to the document to the NRC's 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, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before adjudicatory documents are 
filed so that they can obtain access to the documents via the E-Filing 
system.
    A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC's Electronic 
Filing Help Desk through the ``Contact Us'' link located on the NRC's 
Public website at http://www.nrc.gov/site-help/e-submittals.html, by 
email to [email protected], or by a toll-free call at 1-866-672-
7640. The NRC Electronic Filing Help Desk is available between 9 a.m. 
and 6 p.m., Eastern Time, Monday through Friday, excluding government 
holidays.
    Participants who believe that they have 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 
stating why there is good cause for not filing electronically and 
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, 11555 
Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and 
Adjudications Staff.
    Participants filing adjudicatory documents 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 the 
NRC's electronic hearing docket which is available to the public at 
https://adams.nrc.gov/ehd, unless excluded pursuant to an Order of the 
Commission or the presiding officer. If you do not have an NRC-issued 
digital ID certificate as described above, click ``Cancel'' when the 
link requests certificates and you will be automatically directed to 
the NRC's electronic hearing dockets where you will be able to access 
any publicly available documents in a particular hearing docket. 
Participants are requested not to include personal privacy information, 
such as social security numbers, home addresses, or personal phone 
numbers in their filings, unless an NRC regulation or other law 
requires submission of such information. For example, in some 
instances, individuals provide home addresses in order to demonstrate 
proximity to a facility or site. 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.
    The Commission will issue a notice or order granting or denying a 
hearing request or intervention petition, designating the issues for 
any hearing that will be held and designating the Presiding Officer. A 
notice granting a hearing will be published in the Federal Register and 
served on the parties to the hearing.
    If a person (other than ISU) requests a hearing, that person shall 
set forth with particularity the manner in which his interest is 
adversely affected by this Confirmatory 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 hearings. 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 30 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 V shall be final when the extension 
expires if a hearing request has not been received.

    For the Nuclear Regulatory Commission.

Scott A. Morris,

Regional Administrator, NRC Region IV.

[FR Doc. 2019-16368 Filed 7-31-19; 8:45 am]
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