In the Matter of Alaska Industrial X-Ray, Inc., Anchorage, AK; Order Suspending Licensed Activities (Effective Immediately), 60913-60915 [E7-21117]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 207 (Friday, October 26, 2007)]
[Notices]
[Pages 60913-60915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21117]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-10346; License No. 50-16084-01; EA-07-261]


In the Matter of Alaska Industrial X-Ray, Inc., Anchorage, AK; 
Order Suspending Licensed Activities (Effective Immediately)

I

    Alaska Industrial X-Ray, Inc., (AIX or Licensee) is the holder of 
NRC License No. 50-16084-01 issued by the Nuclear Regulatory Commission 
(NRC or Commission) pursuant to 10 CFR Part 34. The license authorizes 
the Licensee to conduct industrial radiography at temporary job sites 
anywhere in the United States where the NRC maintains jurisdiction for 
regulating licensed material. The license was issued on October 24, 
1990, was most recently renewed on March 13, 2001, and is due to expire 
on March 31, 2011.

II

    On June 4, 2007, the NRC's Office of Investigation (OI) initiated 
an investigation into AIX's activities at a facility, not owned by AIX, 
located in Anchorage, Alaska. This off-site facility is owned by an AIX 
client, and AIX has been performing radiography at that location since 
the 1990s. Based on information obtained during the investigation, 
serious concerns were identified concerning the AIX senior managers' 
oversight of licensed activities and AIX's ability to protect the 
public health and safety. Specifically, AIX radiographers, including 
the company Radiation Safety Officer, knowingly conducted radiography 
activities without the two individuals required by 10 CFR 34.41(a) 
(sometimes called the 2-person rule). This occurred on numerous 
instances over a period of up to three years and presented unnecessary 
risk to the public health and safety.
    In the 1990s, AIX constructed a facility that was referred to as a 
``vault'' at its client's facility. AIX applied to the NRC to have the 
``vault'' approved as a Permanent Radiographic Installation as 
described in 10 CFR 34.33. Radiography conducted in an authorized 
permanent radiographic installation could be conducted with a single 
radiographer; otherwise, 10 CFR 34.41(a) requires, in part, that at 
least two qualified individuals be present during radiography. However, 
the NRC never approved the ``vault'' as a Permanent Radiographic 
Installation because of serious deficiencies in the design and 
requested further information from AIX. One of the design deficiencies 
was that the ``vault'' had very little shielding on most of the front 
of the vault; the shielding consisted of a lead-lined steel frame gate 
that was only about 3\1/2\ feet tall and an industrial tarp that was 
pulled across the front. As such, AIX estimated radiation exposures 20 
feet in front of the ``vault'' exceeded many hundred times the NRC's 2 
mR/hr limit. In addition, the NRC believes there was access to the roof 
of the facility, which was made of \3/4\ inch plywood (very limited 
shielding material), resulting in dose rates in excess of the NRC's 2 
mR/hr limit. The licensing action was closed in 2002 after AIX did not 
make the structural changes necessary to obtain approval.
    The investigation revealed that on numerous occasions over a period 
of up to three years, AIX would send two qualified individuals to the 
off-site facility to perform radiography, and that AIX would commence 
radiography in compliance with 10 CFR 34.41(a).

[[Page 60914]]

However, AIX radiographers, including the company radiation safety 
officer, admitted that eventually, one individual would return to the 
company's shop (located several miles away) to develop film; while the 
remaining radiographer continued with radiography operations, without 
the second qualified individual, unnecessarily endangering the public 
health and safety. In addition, one radiographer admitted to performing 
radiography activities without the second qualified individual, at a 
second facility owned by the licensee, several times over the past 
year, also in violation of 10 CFR 34.41(a). The company president 
stated he had ``an inkling of what was going on'' and that he 
``suspected it.'' All individuals interviewed justified the violation 
due to the additional safeguards that had been installed at the 
``vault'' which AIX had attempted to gain NRC approval as a Permanent 
Radiographic Installation. However, as noted above, the ``vault'' was 
not approved by the NRC and was therefore not adequate to ensure the 
protection of the public health and safety; without NRC approval of 
this facility the licensee is required to follow 10 CFR 34.41(a). Use 
of two qualified persons observing radiographic operations provides a 
high level of assurance that members of the public will be prevented 
from entering the restricted area during those operations and risk 
receiving radiation exposure well in excess of regulatory limits. Also, 
the requirement of two individuals can further protect against high 
doses to either of the qualified persons in circumstances whereby one 
of them becomes incapacitated during radiographic source exposure.
    The NRC notes that enforcement action was taken against AIX on 
April 25, 2001 (EA-01-015) for a willful failure to follow 10 CFR 
34.41(a), while conducting radiography at the same off-site facility. 
During an OI investigation in 2000, a radiographer admitted he did not 
always follow the 2-person rule on limited occasions at this same 
``vault'' that AIX had constructed. At the time of the predecisional 
enforcement conference, AIX was trying to get the ``vault'' approved as 
a Permanent Radiographic Installation. The company president and the 
company radiation safety officer attended the predecisional enforcement 
conference with AIX on March 13, 2001. A central issue was that the 
``vault'' was not approved as a permanent radiographic installation, 
and so the radiographer's actions were in violation of 10 CFR 34.41(a). 
The NRC's April 25, 2001, letter also made this point, and a Notice of 
Violation was issued to AIX for the violation of 10 CFR 34.41(a). AIX's 
corrective actions were provided by letters dated February 25, 2001, 
and March 12, 2001.
    The NRC is continuing its review of the information obtained 
through the investigation. However, based on the information gathered 
thus far, the NRC has serious concerns about the potential safety 
consequences inherent in not complying with regulatory requirements 
during radiography activities. Such activities are among the most risk-
significant activities conducted by material licensees and, in the 
absence of appropriate controls, may lead to significant radiation 
exposures to individuals. The deficiencies in the design of the 
``vault'' raised numerous questions and did not meet NRC requirements 
for designation as a Permanent Radiographic Installation. As such, the 
NRC is concerned that a member of the public could unknowingly be 
exposed as a result of AIX's failures to follow the 2-person rule. In 
addition, the NRC has found that AIX radiographers, including the 
radiation safety officer, have violated 10 CFR 34.41(a) on numerous 
instances for a period of up to three years, and that the company 
president, who at a minimum suspected violations were occurring, did 
not take appropriate actions to stop them. In addition, the NRC had 
previously issued an escalated enforcement action to AIX for a willful 
violation of the same regulation at the same location. This conduct 
undermines the trust the NRC had placed in AIX's senior officials.

III

    Consequently, in light of the above, I lack the requisite 
reasonable assurance that the Licensee's current operations can be 
conducted under License No. 50-16084-01 in compliance with the 
Commission's requirements and that the health and safety of the public, 
including the Licensee's employees, will be protected. Therefore, the 
public, health, safety and interest require that License No. 50-16084-
01 be suspended in part and that licensed material be placed in locked, 
safe storage, pending further review of the information in this case. 
Furthermore, pursuant to 10 CFR 2.202, I find that the significance of 
the violation and conduct described above is such that the public 
health, safety and interest require that this Order be immediately 
effective.

IV

    Accordingly, pursuant to Sections 81, 161b, 161i, 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 34, it is hereby ordered, 
effective immediately, that:
    A. The authority to perform radiographic operations under License 
No. 50-16084-01 is hereby suspended pending further notice by the NRC. 
The Licensee shall cease all radiographic operations and return all 
byproduct material possessed under this license to locked, safe storage 
at the Licensee's facilities. All other requirements of the License and 
applicable Commission requirements, including those in 10 CFR part 20 
remain in effect.
    B. Within 24 hours following issuance of this Order, the Licensee 
shall contact Mr. Leonard Wert, Director, Division of Nuclear Materials 
Safety, NRC Region IV, or his designee, through the NRC Operations 
Center at telephone number (301) 816-5100, and advise him of the 
current location, physical status, and storage arrangements of licensed 
material. A written response documenting this information shall be 
submitted, under oath or affirmation, to the Regional Administrator, 
U.S. NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 
76011 within seven days of the date of this Order.
    C. If the Licensee removes licensed material from locked storage, 
the Licensee shall notify NRC Region IV no less than 48 hours before 
removal of the licensed material. This notice shall be provided to Mr. 
Leonard Wert, Director, Division of Nuclear Materials Safety, or his 
designee, at telephone number (817) 860-8106.
    D. The Licensee shall not receive any NRC-licensed material while 
this Order is in effect.
    E. All records related to licensed activities shall be maintained 
in their current form and must not be altered in any way.
    F. Within 60 days of the date of this Order, the Licensee shall 
provide, in writing, specific actions that are acceptable to the NRC 
and that provide adequate assurance by independent means that the 
Licensee, if it conducts radiography activities, will comply with NRC 
regulations.
    The Regional Administrator, Region IV, may, in writing, relax or 
rescind this order upon demonstration by the Licensee of good cause.

V

    In accordance with 10 CFR 2.202, the Licensee must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order within 20 days of its issuance. In addition, the Licensee and any 
other person adversely affected by this Order may request a hearing on 
this Order within 20 days of its issuance. Where good cause is

[[Page 60915]]

shown, consideration will be given to extending the time to answer or 
request a hearing. A request for extension of time must be directed to 
the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, 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, 2007, 72 FR 49,139 
(Aug. 28, 2007). 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 (5) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
HEARINGDOCKET@NRC.GOV, 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 Viewer\TM\ to access the Electronic 
Information Exchange (EIE), a component of the E-Filing system. The 
Workplace Forms Viewer\TM\ is free and is available at https://
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 https://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 https://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 may seek assistance through the 
``Contact Us'' link located on the NRC Web site at https://www.nrc.gov/
site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    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 
https://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 the Licensee 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).
    If a hearing is requested by a Licensee or 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 Order should be 
sustained. Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee, or any 
other person adversely affected by this Order, may, in addition to 
demanding a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error. 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 IV above shall 
be final 20 days from the date of this Order without further order or 
proceedings. If an extension of time for requesting a hearing has been 
approved, the provisions specified in Section IV shall be final when 
the extension expires if a hearing request has not been received. An 
answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    For the Nuclear Regulatory Commission.

    Dated this 19th day of October, 2007.
Martin J. Virgilio,
Deputy Executive Director for Materials, Waste, Research, State, 
Tribal, and Compliance Programs and Compliance Programs, Office of the 
Executive Director for Operations.
[FR Doc. E7-21117 Filed 10-25-07; 8:45 am]
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