In the Matter of Mattingly Testing Services, Inc., Molt, Montana: Confirmatory Order Modifying License (Effective Immediately), 11767-11772 [E9-5999]
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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Notices
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques, or
other forms of information technology,
e.g., permitting electronic submissions
of responses.
Agency: National Endowment for the
Arts.
Title: Research Study: Improving the
Assessment of Student Learning in the
Arts.
OMB Number: New.
Frequency: One time.
Affected Public: State arts agencies,
County arts agencies, arts organizations,
cultural organizations, institutes of
higher learning with arts programs,
school districts, public schools, arts
education evaluators.
Estimated Number of Respondents:
130,244.
Estimated Time per Respondent: 30
minutes.
Total Burden Hours: 65,122.
Total Annualized Capital/Startup
Costs: 0.
Total Annual Costs (Operating/
Maintaining Systems or Purchasing
Services): $40,000.
Description: The National Endowment
for the Arts plans to conduct a survey
to collect information about assessment
of student learning in the arts. The
survey is part of a research project in
cooperation with WestEd, designed to
collect and analyze data on current
practices and trends in the assessment
of K–12 student arts learning and to
identify models that might be most
effective in various learning
environments. The activities include
collecting uniform data from State arts
agencies, County arts agencies, local arts
organizations, institutes of higher
education with arts programs, districts
and schools that provide arts instruction
to K–12 students, and people that have
evaluated arts education programs.
Sarah Cunningham,
National Endowment for the Arts, 1100
Pennsylvania Avenue, NW., Room 703,
Washington, DC 20506–0001, telephone
(202) 682–5515 (this is not a toll-free
number), fax 202/682–5002.
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ADDRESSES:
Kathryn Plowitz-Worden,
Panel Coordinator, National Endowment for
the Arts.
[FR Doc. E9–6011 Filed 3–18–09; 8:45 am]
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NUCLEAR REGULATORY
COMMISSION
[NRC–2009–0109]
Agency Information Collection
Activities: Proposed Collection;
Comment Request
AGENCY: U.S. Nuclear Regulatory
Commission (NRC).
SUMMARY: The NRC invites public
comment about our intention to request
the OMB’s approval for renewal of an
existing information collection that is
summarized below. We are required to
publish this notice in the Federal
Register under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35).
Information pertaining to the
requirement to be submitted:
1. The title of the information
collection: NRC Form 590, Application/
Permit for Use of the Two White Flint
North (TWFN) Auditorium.
2. Current OMB approval number:
3150–0181.
3. How often the collection is
required: Occasionally. Each time
public use of the auditorium is
requested.
4. Who is required or asked to report:
Members of the public requesting use of
the NRC Auditorium.
5. The number of annual respondents:
5.
6. The number of hours needed
annually to complete the requirement or
request: 1.25 hours (5 requests × 15
minutes per request).
7. Abstract: In accordance with the
Public Buildings Act of 1959, an
agreement was reached between the
Maryland-National Capital Park and
Planning Commission (MPPC), the
General Services Administration (GSA),
and the Nuclear Regulatory Commission
that the NRC auditorium will be made
available for public use. Public users of
the auditorium will be required to
complete NRC Form 590, Application/
Permit for Use of Two White Flint North
(TWFN) Auditorium. The information is
needed to allow for administrative and
security review and scheduling, and to
make a determination that there are no
anticipated problems with the requester
prior to utilization of the facility.
Submit, by May 18, 2009, comments
that address the following questions:
1. Is the proposed collection of
information necessary for the NRC to
properly perform its functions? Does the
information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the
quality, utility, and clarity of the
information to be collected?
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11767
4. How can the burden of the
information collection be minimized,
including the use of automated
collection techniques or other forms of
information technology?
A copy of the draft supporting statement
may be viewed free of charge at the NRC
Public Document Room, One White
Flint North, 11555 Rockville Pike, Room
O–1 F21, Rockville, MD 20852. OMB
clearance requests are available at the
NRC worldwide Web site: https://
www.nrc.gov/public-involve/
doc-comment/omb/. The
document will be available on the NRC
home page site for 60 days after the
signature date of this notice. Comments
submitted in writing or in electronic
form will be made available for public
inspection. Because your comments will
not be edited to remove any identifying
or contact information, the NRC
cautions you against including any
information in your submission that you
do not want to be publicly disclosed.
Comments submitted should reference
Docket No. NRC–2009–0109. You may
submit your comments by any of the
following methods. Electronic
comments: Go to https://
www.regulations.gov and search for
Docket No. NRC–2009–0109. Mail
comments to NRC Clearance Officer,
Gregory R. Trussell (T–5 F52), U.S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001. Questions
about the information collection
requirements may be directed to the
NRC Clearance Officer, Gregory R.
Trussell (T–5 F52), U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001, by telephone at 301–
415–6445, or by e-mail to
INFOCOLLECTS.Resource@NRC.GOV.
Dated at Rockville, Maryland, this 10th day
of March 2009.
For the Nuclear Regulatory Commission,
Gregory R. Trussell,
NRC Clearance Officer, Office of Information
Services.
[FR Doc. E9–5997 Filed 3–18–09; 8:45 am]
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NUCLEAR REGULATORY
COMMISSION
[ Docket No. 030–20836, License No. 25–
21479–01, EA–08–271, NRC–2009–0119]
In the Matter of Mattingly Testing
Services, Inc., Molt, Montana:
Confirmatory Order Modifying License
(Effective Immediately)
I
Mattingly Testing Services, Inc.
(Mattingly or licensee) is the holder of
Materials License No. 25–21479–01
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issued by the Nuclear Regulatory
Commission (NRC or Commission)
pursuant to 10 CFR part 34, last
amended on September 11, 2008, and
due to expire on February 28, 2016. The
license authorizes Mattingly to possess
and use byproduct material for
industrial radiographic operations in
NRC jurisdiction, and in areas of
exclusive Federal jurisdiction within
Agreement States. Mattingly’s main
office is located in Molt, Montana.
This Confirmatory Order is the result
of an agreement reached during an
alternative dispute resolution (ADR)
mediation session conducted on
February 5, 2009, at the NRC Region IV
offices in Arlington, Texas.
II
On November 5, 2007, the NRC Office
of Investigations (OI) began an
investigation (OI Case No. 4–2008–009)
into Mattingly’s activities. Based on the
evidence developed during its
investigation and associated inspection,
nine apparent violations were
identified. In addition, the NRC was
concerned that willfulness may have
been associated with five of those
apparent violations. The results of the
investigation and inspection, completed
on November 19, 2008, were sent to
Mattingly in a letter dated December 15,
2008. In response to NRC’s December
15, 2008, letter, Mattingly requested
ADR to resolve these issues.
On February 5, 2009, the NRC and
Mattingly met in an ADR session
mediated by a professional mediator,
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 on resolving any differences
regarding the dispute. This confirmatory
order is issued pursuant to the
agreement reached during the ADR
process.
sroberts on PROD1PC70 with NOTICES
III
During the February 5, 2009, ADR
session, a preliminary settlement
agreement was reached. The elements of
the agreement consisted of the
following:
Pursuant to the Nuclear Regulatory
Commission Office of Enforcement’s
ADR process, the following are the
terms and conditions agreed upon in
principle by Mattingly and the NRC
relating to Inspection Report No. 030–
20836/2007–003 issued by the NRC to
Mattingly on December 15, 2008.
Whereas, NRC’s inspection and
investigation conducted between
November 5, 2007, and November 19,
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2008, identified nine apparent
violations of NRC requirements;
Whereas, the nine apparent violations
involved were:
(1) The failure to provide complete
and accurate information to the
Commission;
(2) A radiographer’s assistant
performing radiographic operations
without wearing a personnel dosimeter;
(3) A radiographer’s assistant using a
radiographic exposure device without
being under the personal supervision of
a radiographer;
(4) The failure to secure a
radiographic exposure device
containing radioactive material with a
minimum of two independent physical
controls when the device was not under
constant surveillance by the licensee;
(5) The failure to remove from service
a radiographic exposure device after it
had sustained damage to the locking
mechanism and no longer operated
correctly;
(6) The failure to notify NRC within
24 hours after the discovery of an event
involving damage to the locking
mechanism of a radiographic exposure
device;
(7) Permitting an individual to act as
a radiographer’s assistant without
completion of a practical examination
on the use of radiographic equipment;
(8) Using pocket dosimeters during
radiographic operations that had not
been checked for correct response to
radiation every 12 months as required;
and,
(9) The failure to have a functional
alarm system to allow the licensee to
monitor, detect, assess, and respond to
unauthorized access to radioactive
material when left unattended in a
portable darkroom;
Whereas, NRC acknowledges the
extensive corrective actions Mattingly
has already implemented associated
with the apparent violations, which
include:
(1) Hiring three new office employees
to assume various management duties;
(2) Implementing an electronic
document storage system;
(3) Reviewing current practical exam
records for accuracy;
(4) RSO and assistant RSO performing
quality reviews of paperwork;
(5) RSO and assistant RSO performing
unannounced inspections at jobsites;
(6) Requiring self and peer-checking
for proper dosimetry;
(7) Requiring radiographer or assistant
remain with the truck when the
radiographic exposure device is within;
(8) Requiring regular truck
inspections and alarm testing;
(9) Implementing a safety checklist;
(10) Preparing notification forms to
help ensure NRC notifications are made;
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(11) Purchasing additional dosimetry
devices;
(12) Requiring practical exams to take
place within Mattingly’s shop;
(13) Improving the Mattingly
continuing education program;
(14) Sending assistant RSO to the
Radiation Safety Academy;
(15) Establishing a company library
and encouraging self-study;
(16) Submitting a license amendment
request to replace the current RSO; and
(17) Implementing a tracking system
for dosimetry calibration;
Whereas, during a subsequent
inspection in June 2008, the NRC
reviewed the effectiveness of these
actions and found no safety-significant
violations;
Whereas, the NRC is concerned that
willfulness may be associated with
apparent violations 1, 3, 5, 7, and 8
above;
Whereas, Mattingly agrees that
apparent violations 2, 4, 6, 8, and 9 did
occur, but denies any willfulness was
involved;
Whereas, Mattingly denies that
apparent violations 1, 3, 5, and 7
occurred and denies that any
willfulness was involved;
Whereas, NRC and Mattingly disagree
on the number of violations that
occurred and whether willfulness was
involved;
Whereas, these terms and conditions
shall not be binding on either party
until memorialized in a confirmatory
order issued by the NRC to Mattingly
relating to this matter;
Therefore, the parties agree to the
following terms and conditions:
1. Mattingly shall contract with an
independent consultant to evaluate the
effectiveness of its radiation safety and
compliance programs.
(1) Within 60 days of the date of this
Order, Mattingly will submit to the NRC
for approval, the name(s) and
qualifications of an independent
consultant(s) to review and evaluate
Mattingly’s radiation safety program and
compliance program.
(2) Within 30 days of NRC approval
of the consultant, the consultant will
commence an assessment of Mattingly’s
radiation safety program.
(3) The consultant shall review
Mattingly’s training program and
provide recommendations for
improvement.
(4) The consultant shall review
Mattingly’s Operating and Emergency
Procedures and provide
recommendations for improvement.
(5) Within 30 days following
completion of his reviews, the
consultant will provide Mattingly a
report discussing its findings and
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recommendations for program
improvements. At the same time the
consultant provides its report to
Mattingly, the consultant will send a
copy to the Director, Division of Nuclear
Materials Safety, U.S. NRC Region IV.
(6) Within 30 days of receiving the
consultant’s report, Mattingly will
provide the NRC, in writing, its position
on how it will address the consultant’s
findings. In its correspondence to the
NRC, Mattingly will identify which of
the consultant’s recommendations it
will implement and the time frame in
which it will implement the
recommendations. For those
recommendations Mattingly does not
accept, Mattingly will provide the NRC
with its justification.
(7) Within 60 days of receiving the
consultant’s report, Mattingly shall
submit a license amendment request
incorporating updated procedures based
on Mattingly’s implementation of the
consultant’s recommendations.
(8) The consultant shall perform an
annual audit of Mattingly’s radiation
safety program through calendar year
2012, starting with an audit of calendar
year 2009 (this will result in 4 annual
audits). This audit shall be performed in
accordance with the suggested audit
format in NUREG 1556, Volume 2,
‘‘Program-Specific Guidance About
Industrial Radiography Licenses,’’
Appendix I.
The consultant will send a copy of his
annual audit results to the Director,
Division of Nuclear Materials Safety,
U.S. NRC Region IV.
(9) The consultant shall perform field
audits of the performance of
radiography at temporary jobsites, and
these field audits shall be performed in
accordance with NUREG 1556, Volume
2, Appendix H. The field audits shall be
unannounced and the auditor shall
observe Mattingly radiographers
actually performing radiographic
operations. The auditor must make
these observations in a manner such
that the radiographers are unaware of
his presence. After observing the
radiographers perform work, the auditor
may announce himself to the
radiographers in order to continue the
audit. These audits shall be conducted
at least every six months through
calendar year 2012, beginning within 30
days of NRC approval of the consultant.
The consultant shall provide NRC with
a copy of these audits within one week
after the audit is completed.
2. Mattingly shall contract with an
independent consultant to provide
training.
(1) Within 60 days of the date of this
Order, Mattingly will submit to the NRC
for approval, the name(s) and
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qualifications of an independent
consultant(s) to provide training;
(2) Within 30 days of NRC approval
of the consultant, the consultant will
provide training to the licensee’s
personnel who engage in licensed
activities. The training shall include:
(1) A review of radiation mishaps
involving radiography devices or
gauges;
(2) A review of the consequences of
and the potential actions that NRC may
take against an individual for deliberate
violations of NRC requirements;
(3) A review of NRC requirements and
Mattingly’s license conditions;
(4) A review of Mattingly’s Operating
and Emergency Procedures;
(5) Lessons learned from the
circumstances surrounding each of the
violations and apparent violations
identified by the NRC in its December
15, 2008, letter;
(6) Reporting requirements of 10 CFR
30.50 and 10 CFR 34.101; and
(7) NRC’s employee protection
requirements contained in 10 CFR 30.7.
3. Mattingly may, during the effective
period of this order, choose to change
consultants to fulfill the requirements
above after Mattingly submits the
name(s) and qualifications of the new
independent consultant(s) and receives
NRC approval for the change.
4. Within 30 days of the date of this
order, Mattingly shall submit a license
amendment request incorporating
updated procedures which:
(a) Require a radiographer or assistant
must remain with the radiographic
exposure device unless the device is
properly secured in the truck or an
approved storage location;
(b) Require the truck alarm system
must be tested immediately prior to
leaving the truck unattended if the truck
is serving as secure storage for the
radiographic exposure device;
(c) Include a pre-job safety checklist
assuring:
(1) The radiographer and assistant
check each other to assure each is
wearing properly calibrated, tested, and
functioning dosimetry as required;
(2) Radiographers must have, on their
person, their certification card while at
a job site;
(d) Require the RSO or his assistant to
review each document required by NRC
regulations for accuracy and
completeness within 10 days of creation
of said document, indicating such
review by initialing and dating the
document;
(e) Require the RSO or his assistant to
review all training records, exams, and
certifications of each employee and sign
a statement that the person is authorized
to work with licensed material prior to
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11769
the person functioning in the position of
a radiographer or radiographer’s
assistant;
(f) Provide additional guidance on the
reporting requirements contained in 10
CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a
radiographic exposure device is
considered damaged such that it must
not be used; and
(h) Provide employees with a policy
statement regarding the requirements of
10 CFR 30.7.
5. Within 30 days from the date of this
order, Mattingly will develop and
implement a disciplinary program with
a graded approach for infractions. This
disciplinary program will consider
minor infractions up to willful failures
to follow the regulations. The
disciplinary program will emphasize
individual responsibility for radiation
safety and radioactive material security,
and will encourage reporting safety and
security concerns.
6. In consideration of the above
actions on the part of Mattingly, NRC
agrees to limit the civil penalty amount
in this enforcement action to $8,000.
Accordingly, within 1 year of the date
of this order, Mattingly shall pay the
civil penalty in the amount of $8,000 in
accordance with NUREG/BR–0254 and
submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, a
statement indicating when and by what
method payment was made.
7. The NRC agrees not to pursue any
further enforcement action against
Mattingly in connection with the
apparent violations identified in the
NRC’s December 15, 2008 letter to
Mattingly and will not count this matter
as previous enforcement for the
purposes of assessing potential future
enforcement action in accordance with
Section VI.C of the Enforcement Policy.
8. The license which is the subject of
this order is modified in accordance
with the requirements of the order. As
such, in the event of the transfer of the
NRC license for Mattingly, by virtue of
sale, merger, bankruptcy, agreement or
otherwise, the requirements of this
confirmatory order shall survive any
such transfer and shall be binding on
the new license holder.
On March 5, 2009, the Licensee
consented to issuing this Order with the
commitments, as described in Section V
below. The Licensee further agreed that
this Order is to be effective upon
issuance and that it has waived its right
to a hearing.
IV
Since the licensee has agreed to take
additional actions to address NRC
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concerns, as set forth in Item III above,
the NRC has concluded that its concerns
can be resolved through issuance of this
Order.
I find that the Licensee’s
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 the
Licensee’s commitments be confirmed
by this Order. Based on the above and
the Licensee’s consent, this Order is
immediately effective upon issuance.
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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 part 34, it is
hereby ordered, effective immediately,
that license no. 25–21479–01 is
modified as follows:
1. Mattingly shall contract with an
independent consultant to evaluate the
effectiveness of its radiation safety and
compliance programs.
(1) Within 60 days of the date of this
Order, Mattingly will submit to the NRC
for approval, the name(s) and
qualifications of an independent
consultant(s) to review and evaluate
Mattingly’s radiation safety program and
compliance program.
(2) Within 30 days of NRC approval
of the consultant, the consultant will
commence an assessment of Mattingly’s
radiation safety program.
(3) The consultant shall review
Mattingly’s training program and
provide recommendations for
improvement.
(4) The consultant shall review
Mattingly’s Operating and Emergency
Procedures and provide
recommendations for improvement.
(5) Within 30 days following
completion of his reviews, the
consultant will provide Mattingly a
report discussing its findings and
recommendations for program
improvements. At the same time the
consultant provides its report to
Mattingly, the consultant will send a
copy to the Director, Division of Nuclear
Materials Safety, U.S. NRC Region IV.
(6) Within 30 days of receiving the
consultant’s report, Mattingly will
provide the NRC, in writing, its position
on how it will address the consultant’s
findings. In its correspondence to the
NRC, Mattingly will identify which of
the consultant’s recommendations it
will implement and the timeframe in
which it will implement the
recommendations. For those
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recommendations Mattingly does not
accept, Mattingly will provide the NRC
with its justification.
(7) Within 60 days of receiving the
consultant’s report, Mattingly shall
submit a license amendment request
incorporating updated procedures based
on Mattingly’s implementation of the
consultant’s recommendations.
(8) The consultant shall perform an
annual audit of Mattingly’s radiation
safety program through calendar year
2012, starting with an audit of calendar
year 2009 (this will result in 4 annual
audits). This audit shall be performed in
accordance with the suggested audit
format in NUREG 1556, Volume 2
‘‘Program-Specific Guidance About
Industrial Radiography Licenses,’’
Appendix I. The consultant will send a
copy of his annual audit results to the
Director, Division of Nuclear Materials
Safety, U.S. NRC Region IV.
(9) The consultant shall perform field
audits of the performance of
radiography at temporary jobsites, and
these field audits should be performed
in accordance with NUREG 1556,
Volume 2, Appendix H. The field audits
shall be unannounced and the auditor
shall observe Mattingly radiographers
actually performing radiographic
operations. The auditor must make
these observations in a manner such
that the radiographers are unaware of
his presence. After observing the
radiographers perform work, the auditor
may announce himself to the
radiographers in order to continue the
audit. These audits shall be conducted
at least every 6 months through calendar
year 2012, beginning within 30 days of
NRC approval of the consultant. The
consultant shall provide NRC with a
copy of these audits within one week
after the audit is completed.
2. Mattingly shall contract with an
independent consultant to provide
training.
(a) Within 60 days of the date of this
Order, Mattingly will submit to the NRC
for approval, the name(s) and
qualifications of an independent
consultant(s) to provide training;
(b) Within 30 days of NRC approval
of the consultant, the consultant will
provide training to the licensee’s
personnel who engage in licensed
activities. The training shall include:
(1) A review of radiation mishaps
involving radiography devices or
gauges;
(2) A review of the consequences of
and the potential actions that NRC may
take against an individual for deliberate
violations of NRC requirements;
(3) A review of NRC requirements and
Mattingly’s license conditions;
PO 00000
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Fmt 4703
Sfmt 4703
(4) A review of Mattingly’s Operating
and Emergency Procedures;
(5) Lessons learned from the
circumstances surrounding each of the
violations and apparent violations
identified by the NRC in its December
15, 2008, letter;
(6) Reporting requirements of 10 CFR
30.50 and 10 CFR 34.101; and
(7) NRC’s employee protection
requirements contained in 10 CFR 30.7.
3. Mattingly may, during the effective
period of this order, choose to change
consultants to fulfill the requirements
above after Mattingly submits the
name(s) and qualifications of the new
independent consultant(s) and receives
NRC approval for the change.
4. Within 30 days of the date of this
order, Mattingly shall submit a license
amendment request incorporating
updated procedures which:
(a) Require a radiographer or assistant
must remain with the radiographic
exposure device unless the device is
properly secured in the truck or an
approved storage location;
(b) Require the truck alarm system
must be tested immediately prior to
leaving the truck unattended if the truck
is serving as secure storage for the
radiographic exposure device;
(c) Include a pre-job safety checklist
assuring:
(1) The radiographer and assistant
check each other to assure each is
wearing properly calibrated, tested, and
functioning dosimetry as required;
(2) Radiographers must have, on their
person, their certification card while at
a job site;
(d) Require the RSO or his assistant to
review each document required by NRC
regulations for accuracy and
completeness within 10 days of creation
of said document, indicating such
review by initialing and dating the
document;
(e) Require the RSO or his assistant to
review all training records, exams, and
certifications of each employee and sign
a statement that the person is authorized
to work with licensed material prior to
the person functioning in the position of
a radiographer or radiographer’s
assistant;
(f) Provide additional guidance on the
reporting requirements contained in 10
CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a
radiographic exposure device is
considered damaged such that it must
not be used; and
(h) Provide employees with a policy
statement regarding the requirements of
10 CFR 30.7.
5. Within 30 days from the date of this
order, Mattingly will develop and
implement a disciplinary program with
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a graded approach for infractions. This
disciplinary program will consider
minor infractions up to willful failures
to follow the regulations. The
disciplinary program will emphasize
individual responsibility for radiation
safety and radioactive material security,
and will encourage reporting safety and
security concerns.
6. In consideration of the above
actions on the part of Mattingly, NRC
agrees to limit the civil penalty amount
in this enforcement action to $8,000.
Accordingly, within 1 year of the date
of this order, Mattingly shall pay the
civil penalty in the amount of $8,000 in
accordance with NUREG/BR–0254 and
submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, a
statement indicating when and by what
method payment was made.
7. The license which is the subject of
this order is modified in accordance
with the requirements of the order. As
such, in the event of the transfer of the
NRC license for Mattingly, by virtue of
sale, merger, bankruptcy, agreement or
otherwise, the requirements of this
confirmatory order shall survive any
such transfer and shall be binding on
the new license holder.
The Regional Administrator, Region
IV, may, in writing, relax or rescind any
of the above conditions upon
demonstration by the Licensee of good
cause.
VI
Any person adversely affected by this
Confirmatory Order, other than the
Licensee, 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 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.
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 49139 (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
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17:17 Mar 18, 2009
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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/sitehelp/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/applycertificates.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/esubmittals.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 EFiling 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/esubmittals.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 electronic filing Help Desk can be
contacted by telephone at 1–866–672–
PO 00000
Frm 00063
Fmt 4703
Sfmt 4703
11771
7640 or by e-mail at
MSHD.Resource@nrc.gov.
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 firstclass 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 Mattingly
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 the 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 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 20 days from the date of this Order
E:\FR\FM\19MRN1.SGM
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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Notices
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.
For the nuclear regulatory commission.
Dated this 6th day of March 2009.
Elmo E. Collins,
Regional Administrator.
[FR Doc. E9–5999 Filed 3–18–09; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[IA–08–055; NRC–2009–0120]
In the Matter of Mr. Mark M. Ficek;
Confirmatory Order (Effective
Immediately)
I
Mr. Mark M. Ficek is the President of
Mattingly Testing Services, Inc.,
(Mattingly) in Molt, Montana. Mattingly
is the holder of Materials License No.
25–21479–01 issued by the Nuclear
Regulatory Commission (NRC or
Commission) pursuant to 10 CFR Part
34, last amended on September 11,
2008, and due to expire on February 28,
2016. The license authorizes Mattingly
to possess and use byproduct material
for industrial radiographic operations in
NRC jurisdiction, and in areas of
exclusive Federal jurisdiction within
Agreement States. Mattingly’s main
office is located in Molt, Montana.
This Confirmatory Order is the result
of an agreement reached during an
alternative dispute resolution (ADR)
mediation session conducted on
February 5, 2009, at the NRC Region IV
offices in Arlington, Texas.
sroberts on PROD1PC70 with NOTICES
II
On November 5, 2007, the NRC Office
of Investigations began an investigation
(Office of Investigations Case No. 4–
2008–009) to determine, in part, if Mr.
Ficek violated 10 CFR 30.10. Based on
the evidence developed during its
investigation, one apparent violation
was identified. The results of the
investigation, completed on September
12, 2008, were sent to Mr. Ficek in a
letter dated December 15, 2008. In
response to NRC’s December 15, 2008,
letter, Mr. Ficek requested ADR to
resolve this issue.
On February 5, 2009, the NRC and Mr.
Ficek met in an ADR session mediated
by a professional mediator, arranged
through Cornell University’s Institute on
Conflict Resolution. ADR is a process in
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17:17 Mar 18, 2009
Jkt 217001
which a neutral mediator with no
decisionmaking 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
In response to the NRC’s offer, Mr.
Ficek requested use of the NRC ADR
process to resolve differences he had
with the NRC. During that ADR session,
a preliminary settlement agreement was
reached. The elements of the agreement
consisted of the following:
Pursuant to the Nuclear Regulatory
Commission Office of Enforcement’s
ADR process, the following are the
terms and conditions agreed upon in
principle by Mr. Mark M. Ficek, and the
NRC relating to NRC Investigation
Report No. 4–2008–009 (IA–08–055)
characterized by the NRC to Mr. Ficek
in a letter dated December 15, 2008.
Whereas, NRC’s investigation completed
September 12, 2008, identified one
apparent violation of 10 CFR 30.10;
Whereas, NRC acknowledges that this is
the first apparent violation identified
by the NRC concerning Mr. Ficek
during his tenure as RSO and
President of Mattingly Testing
Services, Inc;
Whereas, Mr. Ficek does not agree that
a violation of 10 CFR 30.10 occurred;
Whereas, Mr. Ficek and the NRC agree
to disagree on whether a violation of
10 CFR 30.10 occurred;
Whereas, these terms and conditions
shall not be binding on either party
until memorialized in a confirmatory
order issued by the Nuclear
Regulatory Commission to Mr. Ficek
relating to this matter;
Therefore, the parties agree to the
following terms and conditions:
1. Mr. Mark Ficek agrees to refrain
from engaging in licensed activities for
a period of two years. Therefore, Mr.
Mark Ficek is prohibited for two years
from the date of this Order from
engaging in NRC-licensed activities.
NRC-licensed activities are those
activities that are conducted pursuant to
a specific or general license issued by
the NRC, including, but not limited to,
those activities of Agreement State
licensees conducted pursuant to the
authority granted by 10 CFR 150.20.
2. For a period of one year after the
two year period of prohibition has
expired, Mr. Ficek shall, within 20 days
of his becoming involved in NRClicensed activities, as defined in
Paragraph 1 above, provide notice to the
Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission,
PO 00000
Frm 00064
Fmt 4703
Sfmt 4703
Washington, DC 20555–0001, of the
name, address, and telephone number of
the employer or the entity where he is,
or will be, involved in the NRC-licensed
activities. In the notification, Mr. Ficek
shall include a statement of his
commitment to compliance with
regulatory requirements and the basis
why the Commission should have
confidence that he will now comply
with applicable NRC requirements.
3. The NRC agrees not to pursue any
further enforcement action against Mr.
Ficek in connection with the apparent
violation identified in the NRC’s
December 15, 2008, letter to him.
On March 5, 2009, Mr. Ficek
consented to issuing this Order with the
commitments, as described in Section V
below. Mr. Ficek further agreed that this
Order is to be effective upon issuance
and that he has waived his right to a
hearing.
IV
Since Mr. Ficek has agreed to take
additional actions to address NRC
concerns, as set forth in Item III above,
the NRC has concluded that its concerns
can be resolved through issuance of this
Order.
I find that Mr. Ficek’s 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 Mr. Ficek’s commitments be
confirmed by this Order. Based on the
above and Mr. Ficek’s consent, this
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 2.202 and 10 CFR Parts 30 and 34,
it is hereby ordered, effective
immediately, that:
1. Mr. Mark Ficek agrees to refrain
from engaging in licensed activities for
a period of two years. Therefore, Mr.
Mark Ficek is prohibited for two years
from the date of this Order from
engaging in NRC-licensed activities.
NRC-licensed activities are those
activities that are conducted pursuant to
a specific or general license issued by
the NRC, including, but not limited to,
those activities of Agreement State
licensees conducted pursuant to the
authority granted by 10 CFR 150.20.
2. For a period of one year after the
two year period of prohibition has
expired, Mr. Ficek shall, within 20 days
of his becoming involved in NRC-
E:\FR\FM\19MRN1.SGM
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Agencies
[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Notices]
[Pages 11767-11772]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5999]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[ Docket No. 030-20836, License No. 25-21479-01, EA-08-271, NRC-2009-
0119]
In the Matter of Mattingly Testing Services, Inc., Molt, Montana:
Confirmatory Order Modifying License (Effective Immediately)
I
Mattingly Testing Services, Inc. (Mattingly or licensee) is the
holder of Materials License No. 25-21479-01
[[Page 11768]]
issued by the Nuclear Regulatory Commission (NRC or Commission)
pursuant to 10 CFR part 34, last amended on September 11, 2008, and due
to expire on February 28, 2016. The license authorizes Mattingly to
possess and use byproduct material for industrial radiographic
operations in NRC jurisdiction, and in areas of exclusive Federal
jurisdiction within Agreement States. Mattingly's main office is
located in Molt, Montana.
This Confirmatory Order is the result of an agreement reached
during an alternative dispute resolution (ADR) mediation session
conducted on February 5, 2009, at the NRC Region IV offices in
Arlington, Texas.
II
On November 5, 2007, the NRC Office of Investigations (OI) began an
investigation (OI Case No. 4-2008-009) into Mattingly's activities.
Based on the evidence developed during its investigation and associated
inspection, nine apparent violations were identified. In addition, the
NRC was concerned that willfulness may have been associated with five
of those apparent violations. The results of the investigation and
inspection, completed on November 19, 2008, were sent to Mattingly in a
letter dated December 15, 2008. In response to NRC's December 15, 2008,
letter, Mattingly requested ADR to resolve these issues.
On February 5, 2009, the NRC and Mattingly met in an ADR session
mediated by a professional mediator, 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 on resolving any differences regarding
the dispute. This confirmatory order is issued pursuant to the
agreement reached during the ADR process.
III
During the February 5, 2009, ADR session, a preliminary settlement
agreement was reached. The elements of the agreement consisted of the
following:
Pursuant to the Nuclear Regulatory Commission Office of
Enforcement's ADR process, the following are the terms and conditions
agreed upon in principle by Mattingly and the NRC relating to
Inspection Report No. 030-20836/2007-003 issued by the NRC to Mattingly
on December 15, 2008.
Whereas, NRC's inspection and investigation conducted between
November 5, 2007, and November 19, 2008, identified nine apparent
violations of NRC requirements;
Whereas, the nine apparent violations involved were:
(1) The failure to provide complete and accurate information to the
Commission;
(2) A radiographer's assistant performing radiographic operations
without wearing a personnel dosimeter;
(3) A radiographer's assistant using a radiographic exposure device
without being under the personal supervision of a radiographer;
(4) The failure to secure a radiographic exposure device containing
radioactive material with a minimum of two independent physical
controls when the device was not under constant surveillance by the
licensee;
(5) The failure to remove from service a radiographic exposure
device after it had sustained damage to the locking mechanism and no
longer operated correctly;
(6) The failure to notify NRC within 24 hours after the discovery
of an event involving damage to the locking mechanism of a radiographic
exposure device;
(7) Permitting an individual to act as a radiographer's assistant
without completion of a practical examination on the use of
radiographic equipment;
(8) Using pocket dosimeters during radiographic operations that had
not been checked for correct response to radiation every 12 months as
required; and,
(9) The failure to have a functional alarm system to allow the
licensee to monitor, detect, assess, and respond to unauthorized access
to radioactive material when left unattended in a portable darkroom;
Whereas, NRC acknowledges the extensive corrective actions
Mattingly has already implemented associated with the apparent
violations, which include:
(1) Hiring three new office employees to assume various management
duties;
(2) Implementing an electronic document storage system;
(3) Reviewing current practical exam records for accuracy;
(4) RSO and assistant RSO performing quality reviews of paperwork;
(5) RSO and assistant RSO performing unannounced inspections at
jobsites;
(6) Requiring self and peer-checking for proper dosimetry;
(7) Requiring radiographer or assistant remain with the truck when
the radiographic exposure device is within;
(8) Requiring regular truck inspections and alarm testing;
(9) Implementing a safety checklist;
(10) Preparing notification forms to help ensure NRC notifications
are made;
(11) Purchasing additional dosimetry devices;
(12) Requiring practical exams to take place within Mattingly's
shop;
(13) Improving the Mattingly continuing education program;
(14) Sending assistant RSO to the Radiation Safety Academy;
(15) Establishing a company library and encouraging self-study;
(16) Submitting a license amendment request to replace the current
RSO; and
(17) Implementing a tracking system for dosimetry calibration;
Whereas, during a subsequent inspection in June 2008, the NRC
reviewed the effectiveness of these actions and found no safety-
significant violations;
Whereas, the NRC is concerned that willfulness may be associated
with apparent violations 1, 3, 5, 7, and 8 above;
Whereas, Mattingly agrees that apparent violations 2, 4, 6, 8, and
9 did occur, but denies any willfulness was involved;
Whereas, Mattingly denies that apparent violations 1, 3, 5, and 7
occurred and denies that any willfulness was involved;
Whereas, NRC and Mattingly disagree on the number of violations
that occurred and whether willfulness was involved;
Whereas, these terms and conditions shall not be binding on either
party until memorialized in a confirmatory order issued by the NRC to
Mattingly relating to this matter;
Therefore, the parties agree to the following terms and conditions:
1. Mattingly shall contract with an independent consultant to
evaluate the effectiveness of its radiation safety and compliance
programs.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to review and evaluate Mattingly's radiation
safety program and compliance program.
(2) Within 30 days of NRC approval of the consultant, the
consultant will commence an assessment of Mattingly's radiation safety
program.
(3) The consultant shall review Mattingly's training program and
provide recommendations for improvement.
(4) The consultant shall review Mattingly's Operating and Emergency
Procedures and provide recommendations for improvement.
(5) Within 30 days following completion of his reviews, the
consultant will provide Mattingly a report discussing its findings and
[[Page 11769]]
recommendations for program improvements. At the same time the
consultant provides its report to Mattingly, the consultant will send a
copy to the Director, Division of Nuclear Materials Safety, U.S. NRC
Region IV.
(6) Within 30 days of receiving the consultant's report, Mattingly
will provide the NRC, in writing, its position on how it will address
the consultant's findings. In its correspondence to the NRC, Mattingly
will identify which of the consultant's recommendations it will
implement and the time frame in which it will implement the
recommendations. For those recommendations Mattingly does not accept,
Mattingly will provide the NRC with its justification.
(7) Within 60 days of receiving the consultant's report, Mattingly
shall submit a license amendment request incorporating updated
procedures based on Mattingly's implementation of the consultant's
recommendations.
(8) The consultant shall perform an annual audit of Mattingly's
radiation safety program through calendar year 2012, starting with an
audit of calendar year 2009 (this will result in 4 annual audits). This
audit shall be performed in accordance with the suggested audit format
in NUREG 1556, Volume 2, ``Program-Specific Guidance About Industrial
Radiography Licenses,'' Appendix I.
The consultant will send a copy of his annual audit results to the
Director, Division of Nuclear Materials Safety, U.S. NRC Region IV.
(9) The consultant shall perform field audits of the performance of
radiography at temporary jobsites, and these field audits shall be
performed in accordance with NUREG 1556, Volume 2, Appendix H. The
field audits shall be unannounced and the auditor shall observe
Mattingly radiographers actually performing radiographic operations.
The auditor must make these observations in a manner such that the
radiographers are unaware of his presence. After observing the
radiographers perform work, the auditor may announce himself to the
radiographers in order to continue the audit. These audits shall be
conducted at least every six months through calendar year 2012,
beginning within 30 days of NRC approval of the consultant. The
consultant shall provide NRC with a copy of these audits within one
week after the audit is completed.
2. Mattingly shall contract with an independent consultant to
provide training.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to provide training;
(2) Within 30 days of NRC approval of the consultant, the
consultant will provide training to the licensee's personnel who engage
in licensed activities. The training shall include:
(1) A review of radiation mishaps involving radiography devices or
gauges;
(2) A review of the consequences of and the potential actions that
NRC may take against an individual for deliberate violations of NRC
requirements;
(3) A review of NRC requirements and Mattingly's license
conditions;
(4) A review of Mattingly's Operating and Emergency Procedures;
(5) Lessons learned from the circumstances surrounding each of the
violations and apparent violations identified by the NRC in its
December 15, 2008, letter;
(6) Reporting requirements of 10 CFR 30.50 and 10 CFR 34.101; and
(7) NRC's employee protection requirements contained in 10 CFR
30.7.
3. Mattingly may, during the effective period of this order, choose
to change consultants to fulfill the requirements above after Mattingly
submits the name(s) and qualifications of the new independent
consultant(s) and receives NRC approval for the change.
4. Within 30 days of the date of this order, Mattingly shall submit
a license amendment request incorporating updated procedures which:
(a) Require a radiographer or assistant must remain with the
radiographic exposure device unless the device is properly secured in
the truck or an approved storage location;
(b) Require the truck alarm system must be tested immediately prior
to leaving the truck unattended if the truck is serving as secure
storage for the radiographic exposure device;
(c) Include a pre-job safety checklist assuring:
(1) The radiographer and assistant check each other to assure each
is wearing properly calibrated, tested, and functioning dosimetry as
required;
(2) Radiographers must have, on their person, their certification
card while at a job site;
(d) Require the RSO or his assistant to review each document
required by NRC regulations for accuracy and completeness within 10
days of creation of said document, indicating such review by initialing
and dating the document;
(e) Require the RSO or his assistant to review all training
records, exams, and certifications of each employee and sign a
statement that the person is authorized to work with licensed material
prior to the person functioning in the position of a radiographer or
radiographer's assistant;
(f) Provide additional guidance on the reporting requirements
contained in 10 CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a radiographic exposure device is
considered damaged such that it must not be used; and
(h) Provide employees with a policy statement regarding the
requirements of 10 CFR 30.7.
5. Within 30 days from the date of this order, Mattingly will
develop and implement a disciplinary program with a graded approach for
infractions. This disciplinary program will consider minor infractions
up to willful failures to follow the regulations. The disciplinary
program will emphasize individual responsibility for radiation safety
and radioactive material security, and will encourage reporting safety
and security concerns.
6. In consideration of the above actions on the part of Mattingly,
NRC agrees to limit the civil penalty amount in this enforcement action
to $8,000. Accordingly, within 1 year of the date of this order,
Mattingly shall pay the civil penalty in the amount of $8,000 in
accordance with NUREG/BR-0254 and submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
a statement indicating when and by what method payment was made.
7. The NRC agrees not to pursue any further enforcement action
against Mattingly in connection with the apparent violations identified
in the NRC's December 15, 2008 letter to Mattingly and will not count
this matter as previous enforcement for the purposes of assessing
potential future enforcement action in accordance with Section VI.C of
the Enforcement Policy.
8. The license which is the subject of this order is modified in
accordance with the requirements of the order. As such, in the event of
the transfer of the NRC license for Mattingly, by virtue of sale,
merger, bankruptcy, agreement or otherwise, the requirements of this
confirmatory order shall survive any such transfer and shall be binding
on the new license holder.
On March 5, 2009, the Licensee consented to issuing this Order with
the commitments, as described in Section V below. The Licensee further
agreed that this Order is to be effective upon issuance and that it has
waived its right to a hearing.
IV
Since the licensee has agreed to take additional actions to address
NRC
[[Page 11770]]
concerns, as set forth in Item III above, the NRC has concluded that
its concerns can be resolved through issuance of this Order.
I find that the Licensee's 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
the Licensee's commitments be confirmed by this Order. Based on the
above and the Licensee's consent, this 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 2.202 and 10 CFR part 34, it is hereby ordered,
effective immediately, that license no. 25-21479-01 is modified as
follows:
1. Mattingly shall contract with an independent consultant to
evaluate the effectiveness of its radiation safety and compliance
programs.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to review and evaluate Mattingly's radiation
safety program and compliance program.
(2) Within 30 days of NRC approval of the consultant, the
consultant will commence an assessment of Mattingly's radiation safety
program.
(3) The consultant shall review Mattingly's training program and
provide recommendations for improvement.
(4) The consultant shall review Mattingly's Operating and Emergency
Procedures and provide recommendations for improvement.
(5) Within 30 days following completion of his reviews, the
consultant will provide Mattingly a report discussing its findings and
recommendations for program improvements. At the same time the
consultant provides its report to Mattingly, the consultant will send a
copy to the Director, Division of Nuclear Materials Safety, U.S. NRC
Region IV.
(6) Within 30 days of receiving the consultant's report, Mattingly
will provide the NRC, in writing, its position on how it will address
the consultant's findings. In its correspondence to the NRC, Mattingly
will identify which of the consultant's recommendations it will
implement and the timeframe in which it will implement the
recommendations. For those recommendations Mattingly does not accept,
Mattingly will provide the NRC with its justification.
(7) Within 60 days of receiving the consultant's report, Mattingly
shall submit a license amendment request incorporating updated
procedures based on Mattingly's implementation of the consultant's
recommendations.
(8) The consultant shall perform an annual audit of Mattingly's
radiation safety program through calendar year 2012, starting with an
audit of calendar year 2009 (this will result in 4 annual audits). This
audit shall be performed in accordance with the suggested audit format
in NUREG 1556, Volume 2 ``Program-Specific Guidance About Industrial
Radiography Licenses,'' Appendix I. The consultant will send a copy of
his annual audit results to the Director, Division of Nuclear Materials
Safety, U.S. NRC Region IV.
(9) The consultant shall perform field audits of the performance of
radiography at temporary jobsites, and these field audits should be
performed in accordance with NUREG 1556, Volume 2, Appendix H. The
field audits shall be unannounced and the auditor shall observe
Mattingly radiographers actually performing radiographic operations.
The auditor must make these observations in a manner such that the
radiographers are unaware of his presence. After observing the
radiographers perform work, the auditor may announce himself to the
radiographers in order to continue the audit. These audits shall be
conducted at least every 6 months through calendar year 2012, beginning
within 30 days of NRC approval of the consultant. The consultant shall
provide NRC with a copy of these audits within one week after the audit
is completed.
2. Mattingly shall contract with an independent consultant to
provide training.
(a) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to provide training;
(b) Within 30 days of NRC approval of the consultant, the
consultant will provide training to the licensee's personnel who engage
in licensed activities. The training shall include:
(1) A review of radiation mishaps involving radiography devices or
gauges;
(2) A review of the consequences of and the potential actions that
NRC may take against an individual for deliberate violations of NRC
requirements;
(3) A review of NRC requirements and Mattingly's license
conditions;
(4) A review of Mattingly's Operating and Emergency Procedures;
(5) Lessons learned from the circumstances surrounding each of the
violations and apparent violations identified by the NRC in its
December 15, 2008, letter;
(6) Reporting requirements of 10 CFR 30.50 and 10 CFR 34.101; and
(7) NRC's employee protection requirements contained in 10 CFR
30.7.
3. Mattingly may, during the effective period of this order, choose
to change consultants to fulfill the requirements above after Mattingly
submits the name(s) and qualifications of the new independent
consultant(s) and receives NRC approval for the change.
4. Within 30 days of the date of this order, Mattingly shall submit
a license amendment request incorporating updated procedures which:
(a) Require a radiographer or assistant must remain with the
radiographic exposure device unless the device is properly secured in
the truck or an approved storage location;
(b) Require the truck alarm system must be tested immediately prior
to leaving the truck unattended if the truck is serving as secure
storage for the radiographic exposure device;
(c) Include a pre-job safety checklist assuring:
(1) The radiographer and assistant check each other to assure each
is wearing properly calibrated, tested, and functioning dosimetry as
required;
(2) Radiographers must have, on their person, their certification
card while at a job site;
(d) Require the RSO or his assistant to review each document
required by NRC regulations for accuracy and completeness within 10
days of creation of said document, indicating such review by initialing
and dating the document;
(e) Require the RSO or his assistant to review all training
records, exams, and certifications of each employee and sign a
statement that the person is authorized to work with licensed material
prior to the person functioning in the position of a radiographer or
radiographer's assistant;
(f) Provide additional guidance on the reporting requirements
contained in 10 CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a radiographic exposure device is
considered damaged such that it must not be used; and
(h) Provide employees with a policy statement regarding the
requirements of 10 CFR 30.7.
5. Within 30 days from the date of this order, Mattingly will
develop and implement a disciplinary program with
[[Page 11771]]
a graded approach for infractions. This disciplinary program will
consider minor infractions up to willful failures to follow the
regulations. The disciplinary program will emphasize individual
responsibility for radiation safety and radioactive material security,
and will encourage reporting safety and security concerns.
6. In consideration of the above actions on the part of Mattingly,
NRC agrees to limit the civil penalty amount in this enforcement action
to $8,000. Accordingly, within 1 year of the date of this order,
Mattingly shall pay the civil penalty in the amount of $8,000 in
accordance with NUREG/BR-0254 and submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
a statement indicating when and by what method payment was made.
7. The license which is the subject of this order is modified in
accordance with the requirements of the order. As such, in the event of
the transfer of the NRC license for Mattingly, by virtue of sale,
merger, bankruptcy, agreement or otherwise, the requirements of this
confirmatory order shall survive any such transfer and shall be binding
on the new license holder.
The Regional Administrator, Region IV, may, in writing, relax or
rescind any of the above conditions upon demonstration by the Licensee
of good cause.
VI
Any person adversely affected by this Confirmatory Order, other
than the Licensee, 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 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.
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 49139
(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 electronic filing Help Desk can be contacted
by telephone at 1-866-672-7640 or by e-mail at MSHD.Resource@nrc.gov.
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 Mattingly 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 the 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
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 20 days from the
date of this Order
[[Page 11772]]
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.
For the nuclear regulatory commission.
Dated this 6th day of March 2009.
Elmo E. Collins,
Regional Administrator.
[FR Doc. E9-5999 Filed 3-18-09; 8:45 am]
BILLING CODE 7590-01-P