In the Matter of National Aeronautics and Space Administration; Confirmatory Order (Effective Immediately), 9174-9175 [06-1558]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Notices]
[Pages 9174-9175]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1558]


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NUCLEAR REGULATORY COMMISSION


In the Matter of National Aeronautics and Space Administration; 
Confirmatory Order (Effective Immediately)

    National Aeronautics and Space Administration (NASA or Licensee) is 
the holder of Byproduct Material Licenses 19-05748-02 and 19-05748-03 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR part 30. License No. 19-05748-02 was originally 
issued on June 28, 1960, and is due to expire on July 3, 2011. License 
No. 19-05748-03 was originally issued on October 1, 1963, and is due to 
expire on September 30, 2015.
    On January 16, 2003, the NRC Office of Investigations (OI) 
initiated an investigation (OI Case No. 1-2003-011) at NASA. Based on 
the evidence developed during its investigations, OI substantiated that 
the contract RSO deliberately failed to report missing licensed 
material as required, and provided incomplete and inaccurate 
information, verbally and in writing, to the NRC in violation of 10 CFR 
30.9(a). The results of the investigation completed on May 25, 2005, 
were sent to NASA in a letter dated August 18, 2005.
    Subsequent to the NRC's identification of the apparent violations, 
NASA took several actions to assure that these events would not recur. 
These actions included: (a) Selecting a new contract RSO to provide 
radiation safety services; (b) changing the inventory database to 
improve tracking of sources; (c) implementing recommendations made by 
NASA Security Office following its evaluation of the materials storage 
area to improve security of the facility; (d) conducting a physical 
inventory of all items and determining that all but two sources, which 
were below reportable quantities, were accounted for; and (e) 
instructing the contract RSO that all notifications shall be made 
within required regulatory timeframes.
    Also, in response to the NRC's August 18, 2005, letter, NASA 
requested the use of Alternative Dispute Resolution (ADR) to resolve 
the apparent violations and pending enforcement action. ADR is a 
process in which a neutral mediator, with no decision-making authority, 
assists the NRC and NASA to resolve any disagreements on whether a 
violation occurred, the appropriate enforcement action, and the 
appropriate corrective actions. At NASA's request: (1) A joint 
Alternative Dispute Resolution (ADR) mediation session was held at the 
NASA facility in Greenbelt, Maryland, on November 4, 2005, between 
NASA, its contract Radiation Safety Officer (RSO), and the NRC; and (2) 
an individual ADR session was held in the Region I Office in King of 
Prussia, PA on December 19, 2005, between NASA and the NRC at which the 
contract RSO participated in portions of the mediation. These ADR 
sessions were mediated by a professional mediator, arranged through 
Cornell University's Institute of Conflict Management. Based on the 
discussions during the ADR sessions, a settlement agreement was reached 
regarding this matter. The elements of the settlement agreement are as 
follows:
    1. The NRC determined that violations of NRC requirements occurred 
at NASA when: (a) Contrary to 10 CFR 20.1501, its contract Radiation 
Safety Officer (RSO) failed to perform a reasonable and necessary 
evaluation of information provided to him in memoranda from a health 
physics technician on September 10, 2002, and October 21, 2002, to 
determine whether the licensed material reported as missing in those 
memoranda, at the NASA Goddard Space Flight Center in Greenbelt, 
Maryland, reached the threshold for reportability under 10 CFR 20.2201; 
and (b) contrary to 10 CFR 30.9(a), the contract RSO provided 
inaccurate information to an NRC inspector during an NRC inspection on 
December 18-19, 2002, when he provided an inspector with an inventory 
form indicating all sources were accounted for when, in fact, sources 
were not accounted for at the time.
    2. NASA agreed that the contract RSO caused NASA to violate NRC 
requirements when he failed to perform a reasonable and necessary 
evaluation, pursuant to 10 CFR 20.1501, of information provided to him 
by the health physics technician, to determine whether the licensed 
material reported as missing in the memoranda identified in Item 1 
reached the threshold for reportability under 10 CFR 20.2201. NASA also 
agreed that the contract RSO provided inaccurate information during the 
December 18-19, 2002 inspection, as noted in Item 1. The NRC maintained 
that the contract RSO's actions were willful, at a minimum, in careless 
disregard of NRC requirements, because the contract RSO had reasonable 
information that material was not accounted for, yet he failed to 
investigate and take appropriate action, and he provided information to 
the inspector that was inaccurate. NASA contended that the contract 
RSO's actions were not in careless disregard, in part, because he had 
doubts about the accuracy of the information. The NRC and NASA agreed 
to disagree on the willfulness of the actions by the contract RSO.
    3. While NASA and the NRC agreed to disagree on the willfulness of 
the contract RSO's actions, NASA and the NRC agreed that the contract 
RSO's actions caused NASA to be in violation of NRC requirements, which 
resulted in an enforcement action that will be taken against NASA as 
part of this ADR agreement.
    4. NASA also agreed to complete, in addition to the actions it has 
already taken, other actions to ensure that others at NASA Goddard, 
other NASA facilities, and other NRC licensees, learned from these 
violations. Those additional actions included: (a) Increasing the 
frequency of its internal audits of its radiation safety program from 
annually to quarterly, for, at a minimum, through the end of 2007; (b) 
retaining an organization independent of NASA Goddard to conduct an 
annual independent review of the radiation safety program, at a 
minimum, for 2006 and 2007; and (c) providing a presentation at the 
NASA Occupational Health Conference in 2006, and include, at a minimum, 
in that presentation, a description of the violations that are 
described in Item 1 of this agreement, as well as the circumstances 
that led to the violations, lessons learned, and the corrective actions 
taken and planned to prevent recurrence.
    5. NASA agreed to complete all of the additional actions in Item 4 
by December 31, 2007, and send a letter to the NRC informing the NRC 
that these actions are complete. NASA agreed to send this letter to the 
NRC within 30 days of completion of all actions.
    6. In light of the corrective actions that NASA has taken or has 
committed to take as described above, NASA agreed to the NRC issuance 
of a Notice of Violation for the two violations described in Item 1, 
which the NRC will characterize as a Severity Level III problem, as 
well as for the other violations described in the NRC inspection report 
attached to the NRC August 18, 2005, letter which will be characterized 
at Severity Level IV. This

[[Page 9175]]

action will be publicly available in ADAMS and on the NRC ``Significant 
Enforcement Actions'' Web site, and the NRC will issue a press release 
announcing this action, as well as the actions NASA has taken and 
committed to take to address the violation. NASA disagreed that the two 
violations described in Item 1 warrant a Severity Level III 
characterization. The NRC and NASA agreed to disagree regarding the 
Severity Level III characterization.
    7. NASA agreed to issuance of a Confirmatory Order confirming this 
agreement, and also agreed to waive any request for a hearing regarding 
this Confirmatory Order.
    In light of the actions NASA has taken and agreed to take to 
correct the violation and prevent recurrence, as set forth in Section 
III above, the NRC has concluded that its concerns regarding the 
violation can be resolved through the NRC's confirmation of the 
commitments as outlined in this Confirmatory Order.
    I find that NASA's commitments as set forth in Section III above 
are acceptable. However, in view of the foregoing, I have determined 
that these commitments shall be confirmed by this Confirmatory Order. 
Based on the above and NASA's consent, this Confirmatory Order is 
immediately effective upon issuance.
    Accordingly, pursuant to Sections 103, 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 20 and 30, it is hereby 
ordered, that by December 31, 2007:
    1. NASA will increase the frequency of its internal audits of its 
radiation safety program from annually to quarterly, for, at a minimum, 
through the end of 2007;
    2. NASA will retain an organization independent of NASA Goddard to 
conduct an annual independent review of the radiation safety program, 
at a minimum, for 2006 and 2007;
    3. NASA will provide a presentation at the NASA Occupational Health 
Conference in 2006, and include, at a minimum, in that presentation, a 
description of the violations that are described in Section 3 of this 
agreement, as well as the circumstances that led to the violations, 
lessons learned, and the corrective action taken and planned to prevent 
recurrence; and
    4. Within 30 days of completion of all of these actions as set 
forth in Sections V.1-3, NASA will send a letter to the NRC informing 
the NRC that the actions are complete.
    The Director, Office of Enforcement, may relax or rescind, in 
writing, any of the above conditions upon a showing by NASA of good 
cause.
    Any person adversely affected by this Confirmatory Order, other 
than NASA, may request a hearing within 20 days of its issuance. 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 must include a statement of good 
cause for the extension. Any request for a hearing shall be submitted 
to the Secretary, U.S. Nuclear Regulatory Commission, ATTN: Chief, 
Rulemaking and Adjudications Staff, Washington, DC 20555. Copies of the 
hearing request shall also be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
to the Assistant General Counsel for Materials Litigation and 
Enforcement, to the Director of the Division of Regulatory Improvement 
Programs at the same address, and to MSHMC. Because of continuing 
disruptions in delivery of mail to United States Government offices, it 
is requested that answers and requests for hearing be transmitted to 
the Secretary of the Commission either by means of facsimile 
transmission to 301-415-1101 or by e-mail to hearingdocket@nrc.gov and 
also to the Office of the General Counsel by means of facsimile 
transmission to 301-415-3725 or e-mail to OGCMailCenter@nrc.gov. If 
such a person 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 2.714(d).
    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 shall be 
sustained. An answer or a request for a hearing shall not stay the 
effectiveness date of this order.

    Dated this 10th day of February 2006.

    For the Nuclear Regulatory Commission.
Michael Johnson,
Director, Office of Enforcement.
[FR Doc. 06-1558 Filed 2-21-06; 8:45 am]
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