In the Matter of University of Pittsburgh; Confirmatory Order (Effective Immediately), 42438-42440 [E7-15046]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 148 (Thursday, August 2, 2007)]
[Notices]
[Pages 42438-42440]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15046]


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NUCLEAR REGULATORY COMMISSION

[EA-06-266, 06-278]


In the Matter of University of Pittsburgh; Confirmatory Order 
(Effective Immediately)

I

    University of Pittsburgh (UPitt or licensee) is the holder of 
Byproduct Material License 37-00245-09 issued by the Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Part 30. License No. 
37-00245-09 was originally issued on February 5, 1987, and is due to 
expire on May 31, 2015.

II

    On March 10, 2005, and March 23, 2006, the NRC Office of 
Investigations (OI) initiated investigations (OI Case Nos. 1-2005-008 
and 1-2006-023) to determine whether UPitt willfully violated the 
physical presence requirements on March 4, 2005, and whether a 
neurosurgeon had willfully entered the authorized user's (AU) initials 
on written directives without the AU's knowledge or consent. The 
investigations were completed on June 15, 2006 and October 10, 2006. 
Based on a March 5, 2005, visit to the UPitt Medical Center Gamma Knife 
facility and the investigations, the NRC informed UPitt, in a letter 
dated February 27, 2007, that three apparent violations were being 
considered for escalated enforcement action in accordance with the NRC 
Enforcement Policy. To address the three apparent violations, the 
February 27, 2007, letter offered UPitt a choice to (1) Attend a 
Predecisional Enforcement Conference (PEC), or (2) request Alternative 
Dispute Resolution (ADR) with the NRC in an attempt to resolve any 
disagreement on whether a violation occurred, the appropriate 
enforcement action, and the appropriate corrective actions.

III

    Subsequent to the NRC's identification of the apparent violations, 
UPitt took several actions to assure that these events would not recur. 
These actions included: (1) Ensuring that an Authorized Medical 
Physicist (AMP) and an AU are present during each GSR treatment; (2) 
issuance of a procedure for physical presence requirements and posting 
it at each GSR unit; and, (3) hiring another AMP.
    Also, in response to the NRC's February 27, 2007 letter, UPitt 
requested the use of 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 UPitt to resolve any 
disagreements on whether a violation occurred, the appropriate 
enforcement action, and the appropriate corrective actions. At UPitt's 
request, an ADR session was held in the Region I Office in King of 
Prussia, PA on May 17, 2007, between UPitt and the NRC. This ADR 
session was mediated by a professional mediator, arranged through 
Cornell University's Institute of Conflict Management. Based on the 
discussion during the ADR session, a settlement agreement was reached 
regarding this matter. The elements of the settlement agreement are as 
follows:
    1. As noted in an NRC letter dated February 27, 2007, based on an 
NRC inspection and NRC investigations, the NRC identified three 
apparent violations of NRC requirements at the University of Pittsburgh 
Medical Center Gamma Knife facility. The first apparent violation, 
which involved a failure to meet physical presence requirements 
described in 10 CFR 35.615(f)(3), included three examples, two of which 
involved willfulness. The examples included: (1) A March 4, 2005, 
failure to meet physical presence requirements in that a GSR treatment 
was conducted without the continuous physical presence of an AMP; (2) 
multiple incidents between May 13, 2004 and March 10, 2005, when two 
neurosurgeons, in careless disregard of NRC regulations, initiated GSR 
treatments in separate suites with only one AMP available to meet 
physical presence requirements; and, (3) a February 22, 2005, incident 
when one neurosurgeon willfully initiated a treatment without a written 
directive signed by an AU and without the physical presence of an AU. 
The second apparent violation involved licensee management's failure to 
ensure that GSR activities met NRC requirements, as required by 10 CFR 
35.24(b). The third apparent violation involved multiple occasions when 
a neurosurgeon recorded the Radiation Therapist's initials on the GSR 
written directive, causing the licensee to violate 10 CFR 35.32. In the 
NRC February 27, 2007 letter, the NRC noted that it had not determined 
that violations had occurred or that enforcement should be taken, and 
the NRC offered the licensee an opportunity to attend a PEC prior to 
making an enforcement decision. In the alternative, the NRC offered the 
licensee the opportunity to attend an ADR mediation session to resolve 
these matters.
    2. As a result of an ADR mediation session conducted on May 17, 
2007, the licensee and the NRC agreed to final disposition of this 
matter by way of a single violation of the regulatory requirements in 
10 CFR 35.24(b). Specifically, the licensee through the Radiation 
Safety Officer: (a) Failed to ensure from May 13, 2004 through March 
10, 2005, the physical presence requirements of 10 CFR 35.615(f)(3) 
were consistently met; and (b) failed to ensure between 1998 and 2000 
that written directives were consistently signed by all three members 
of the Gamma Knife team prior to administration of GSR treatments in 
accordance with 10 CFR 35.32. The NRC

[[Page 42439]]

concluded that certain aspects of the 10 CFR 35.24(b) violation were 
willful. The licensee disputed this conclusion. The NRC and the 
licensee have agreed to disagree regarding any willful aspects of this 
violation.
    3. Prior to the ADR mediation session, the licensee described the 
actions that it had taken to address the apparent violations identified 
by the NRC. Those actions included: (1) Ensuring that an AMP and an AU 
are present during each GSR treatment; (2) issuance of a procedure for 
physical presence requirements and posting it at each GSR unit; and, 
(3) hiring another AMP. Some of these actions were verified by the NRC 
during the following: (1) An on-site inspection on March 15-17, 2005; 
(2) the NRC's review of the UPitt response to a Confirmatory Action 
Letter (CAL), dated April 28, 2005; (3) an on-site inspection on May 
12, 2005 to follow-up on the CAL; and, (4) a routine inspection 
performed September 25-29, 2006.
    4. During the ADR mediation session, the licensee also described 
additional corrective actions that it had taken or planned, which 
includes: (1) Having the RSO initiate a requirement for a physical 
presence log to be maintained at each gamma knife treatment console, to 
include patient name, AU physically present, AMP physically present, 
date, and start/stop time of treatment; (2) having the RSO staff 
provide annual radiation safety training to the gamma knife staff, 
including a review of all applicable requirements in 10 CFR Parts 19, 
20, and 35, with emphasis on the physical presence and written 
directive requirements; (3) having an outside independent consultant 
(medical RSO) conduct an audit of the Radiation Safety Program with 
special emphasis on the gamma knife program and management oversight; 
(4) increasing surveillance of GSR treatments by RSO staff; and, (5) 
developing a program to heighten awareness of the need to report 
concerns, and including this program in initial and refresher training 
for all radiation workers, to foster an environment for raising safety 
concerns.
    5. To provide further opportunity for other licensees in the 
industry to learn from this incident, UPitt also agreed to: (1) Enhance 
its 40 hour GSR training course provided to users at other facilities 
throughout the United States, including expanding the lecture on NRC 
regulatory requirements to include the physical presence requirements, 
including a description of this experience as part of the training; 
and, (2) submit a lessons-learned article for the Operational Radiation 
Safety publication and the Elekta Newsletter, eWavelength, describing 
these occurrences. The licensee will provide a copy of the training 
syllabus before conducting the training, and a copy of the article to 
the NRC at least 30 days prior to the submittal of the article to the 
organization.
    6. In light of the actions that the licensee has taken, or 
committed to take, as described in Items 3-5 above, as well as the fact 
that the violation did not result in any known safety consequences to 
patients, workers, or the public, the NRC agrees to issue a Notice of 
Violation without a civil penalty for the violation as characterized in 
Item 2 and to classify the violation at Severity Level III. This action 
will be publically available in ADAMS and on the NRC ``Significant 
Enforcement Actions'' Web site.
    7. The licensee also agreed to issuance of a Confirmatory Order 
confirming this agreement.

IV

    In light of the actions UPitt has taken and agreed to take to 
correct the violations and prevent recurrence, as set forth in Section 
III above, the NRC has concluded that its concerns can be resolved 
through implementation of UPitt's commitments as outlined in this 
Confirmatory Order. The NRC has also determined that these commitments 
shall be confirmed by this Confirmatory Order. Based on the above and 
UPitt's consent, this Confirmatory 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 Part 2.202 and 10 CFR Part 30 and 35, it is 
hereby ordered, that within one year of the date of this order:
    1. UPitt will enhance its 40 hour GSR training course provided to 
users at other facilities throughout the United States, including 
expanding the lecture on NRC regulatory requirements to include the 
physical presence requirements, including a description of this 
experience as part of the training;
    2. UPitt will provide the NRC a copy of the training syllabus 
before conducting the training;
    3. UPitt will submit a lessons-learned article for the Operational 
Radiation Safety publication and the Elekta Newsletter, eWavelength, 
describing these occurrences;
    4. UPitt will provide a copy of the article to the NRC at least 30 
days prior to the submission of the article to the organization; and
    5. UPitt will send a letter to the NRC informing the NRC that the 
actions in Sections V.1-4 are complete, and UPitt will send the letter 
within 30 days of completion of all of these actions.
    The NRC Region I Regional Administrator may relax or rescind, in 
writing, any of the above conditions upon a showing by UPitt of good 
cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than UPitt, 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, to the NRC Region I office at 475 
Allendale Rd., King of Prussia, PA 19406, and to UPitt. Because of 
potential 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 Part 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 shall be 
sustained. An answer or a request for a hearing shall not stay the 
immediate effectiveness of this order.

    Dated this 23th day of July 2007.


[[Page 42440]]


    For the Nuclear Regulatory Commission.
Marc L. Dapas,
Deputy Regional Administrator.
 [FR Doc. E7-15046 Filed 8-1-07; 8:45 am]
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