In the Matter of Alaska Industrial X-Ray, Inc., Anchorage, AK; Confirmatory Order Modifying License; Effective Immediately, 36157-36160 [2011-15394]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Notices]
[Pages 36157-36160]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15394]


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NUCLEAR REGULATORY COMMISSION

[NRC-2008-0473; Docket No.: 030-10346; License No.: 50-16084-01; EA-10-
231]


In the Matter of Alaska Industrial X-Ray, Inc., Anchorage, AK; 
Confirmatory Order Modifying License; Effective Immediately

I

    Alaska Industrial X-Ray, Inc. (AIX or Licensee) is the holder of 
Materials License 50-16084-01 issued by the U.S. Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR parts 30-36, 39, 40 
and 70 and last amended on November 2, 2007, which expired on March 31, 
2011. The license remains in effect while being reviewed by NRC 
licensing staff because AIX filed a timely licensee renewal application 
dated March 3, 2011. The license authorizes AIX to possess and use 
sealed radioactive sources in conducing industrial radiography 
activities in accordance with the conditions specified therein.
    This Confirmatory Order is the result of an agreement reached 
during an alternative dispute resolution (ADR) mediation session 
conducted on April 19, 2011, in Seattle, Washington.

II

    On January 29, 2010, the NRC Office of Investigations (OI) began an 
investigation (OI Case number OI-4-2010-023) to determine if AIX 
willfully failed to comply with portions of NRC Order Modifying License 
(EA-08-196). NRC Order Modifying License (EA-08-196) included 
requirements that AIX obtain an independent auditor to perform field 
audits of radiographic operations and that an independent consultant be 
hired by AIX to evaluate the effectiveness of the radiation safety and 
compliance programs. The OI investigation concluded that (1) from July 
2009 through March 2010, AIX failed to ensure that unannounced field 
audits were conducted; (2) monthly reports of audit activities were not 
transmitted to the NRC during this same time period; and (3) an 
independent consultant failed to commence an assessment of the AIX 
radiation safety program, as required by NRC Order Modifying License, 
EA-08-196 (Order). The results of the OI investigation and NRC 
inspection were discussed with AIX during a telephonic exit on February 
3, 2011, and were documented in NRC Inspection Report 030-10346/2009-
001 and Investigation Report 4-2010-023, dated March 3, 2011.
    On April 19, 2011, the NRC and Licensee representatives met in an 
ADR session in Seattle, Washington, 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 
that resolves 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, the Licensee requested use of the 
NRC's ADR process to resolve differences it 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 Alternative Dispute Resolution program (ADR), the 
following are the terms and conditions agreed upon in principle by 
Alaska Industrial X-Ray, Inc. (AIX) and the Nuclear Regulatory 
Commission (NRC) relating to the NRC's letter dated March 3, 2011 (EA-
10-231).
    Whereas, the NRC has concluded that willful violations were 
committed by AIX associated with failure to ensure that an independent 
contractor performed field audits and that an approved independent 
consultant began an evaluation of the effectiveness of the AIX 
radiation safety program as required by Conditions of NRC Order 
Modifying License (EA-08-196).
    Whereas, the NRC considers willful actions to be a significant 
concern to the regulatory program and the NRC is interested in 
obtaining comprehensive corrective actions from AIX that would deter 
future willful violations and

[[Page 36158]]

noncompliance with regulatory requirements.
    Whereas, the NRC recognizes that AIX restored compliance with the 
license requirements, once the NRC brought the findings to AIX's 
attention; and AIX restored full compliance with the NRC Order 
Modifying License (EA-08-196) by October 28, 2010.
    Whereas, the NRC recognizes that, based on the NRC's thorough 
inspection conducted between August and September 2010, AIX had 
improved its compliance with NRC regulations in that there were no 
findings involving the conduct of radiography; and that the NRC's 
findings were consistent with the auditor's findings that had been 
conducted prior to August 24, 2010;
    Therefore, the parties agree to the following terms and conditions:
    1. Within 60 days of the date of the ADR Confirmatory Order, AIX 
will contract with a person to provide training to all AIX employees 
engaged in licensed activities (up to and including the company 
president) on what is meant by willfulness and the potential 
enforcement sanctions that the NRC may take against employees who 
engage in deliberate misconduct. The training will also include 
instruction on what is meant by compliance to NRC orders and company 
procedures that provide direction to AIX personnel. The goal of the 
training is to deter future willful violations by ensuring AIX 
employees understand the importance upon which the NRC places on 
willful violations and compliance. The training will be completed 
within 120 days of the ADR Confirmatory Order.
    (a) The training will include the elements of willfulness discussed 
in the NRC Enforcement Manual (Chapter 6) and will include some 
examples of enforcement actions taken against individuals (which are 
publicly available on the NRC's Web site).
    (b) AIX will submit for NRC approval at least 30 days prior to the 
training, the r[eacute]sum[eacute] of the contractor who will be 
conducting the training.
    (c) The training will include the willful issues discussed in the 
NRC's ``Notice of Violation and Proposed Imposition of Civil Penalty--
$20,800 and Order Modifying License'' issued to AIX on August 20, 2008, 
and the willful issues discussed in NRC Inspection Report 030-10346/
2009-001 dated March 3, 2011.
    (d) At least 14 days prior to the training, AIX will provide the 
NRC with an outline of the topics to be covered during this training 
session.
    2. AIX will use an independent auditor to perform the annual review 
of its radiation safety and compliance program. The auditor will 
utilize the AIX RSO to assist during the review of the radiation safety 
program. The audits will use the guidance contained in NUREG 1556 
(Volume 2), and include an audit of adherence to applicable security 
requirements by AIX. The first annual program review will be completed 
by February 15, 2012, for the calendar year 2011. The final annual 
program review will be completed by February 15, 2013, for the calendar 
year 2012.
    (a) AIX will submit within 60 days of the date of this order the 
name of the independent auditor planned to perform the annual review.
    (b) If AIX decides to use an auditor which the NRC has not 
previously approved, AIX must submit the auditor's r[eacute]sum[eacute] 
to the NRC for approval prior to using the individual.
    (c) The auditor will submit their findings to both AIX and the NRC 
simultaneously. Within 30 days after receiving the auditor's findings, 
AIX will submit to the NRC its response to the audit findings, 
including any corrective actions needed to address the auditor's 
findings.
    3. From the date of the ADR Confirmatory Order until June 30, 2013, 
NRC management and AIX will conduct conference calls approximately six-
month intervals to review audit and/or inspection results.
    4. From the date of the ADR Confirmatory Order until June 30, 2013, 
the president of AIX or RSO shall perform quarterly audits of AIX 
radiographers as they conduct radiography. To the maximum extent 
possible, the audits shall include observations such that the crew 
cannot detect his presence. During these audits, the president of AIX 
or RSO must, to the extent possible, prevent violations from occurring 
or continuing as he observes the radiography crews, even in situations 
where the crew has not detected his presence prior to the violation. 
These audits must be separate and apart from any required audits 
performed for compliance with 10 CFR 34.43(e). Records shall be 
maintained documenting these audits and the results of the audits.
    5. A Civil Penalty in the amount of $1,000 will be assessed by the 
NRC.
    6. This ADR confirmatory order will supersede the NRC Order 
Modifying License (EA 08-196).
    On June 1, 2011, 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 concerns, as set forth in Item III above, the NRC has concluded 
that its concerns can be resolved through issuance of this Confirmatory 
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 Licensee'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 2.202 and 10 CFR Part 20, 34, and 10 CFR 150.20, 
It Is Hereby Ordered, Effective Immediately, That License 50-16084-01 
Is Modified As Follows:
    1. Within 60 days of the date of the ADR Confirmatory Order, AIX 
will contract with a person to provide training to all AIX employees 
engaged in licensed activities (up to and including the company 
president) on what is meant by willfulness and the potential 
enforcement sanctions that the NRC may take against employees who 
engage in deliberate misconduct. The training will also include 
instruction on what is meant by compliance to NRC orders and company 
procedures that provide direction to AIX personnel. The goal of the 
training is to deter future willful violations by ensuring AIX 
employees understand the importance upon which the NRC places on 
willful violations and compliance. The training will be completed 
within 120 days of the ADR Confirmatory Order.
    (a) The training will include the elements of willfulness discussed 
in the NRC Enforcement Manual (chapter 6) and will include some 
examples of enforcement actions taken against individuals (which are 
publicly available on the NRC's Web site).
    (b) AIX will submit for NRC approval at least 30 days prior to the 
training, the r[eacute]sum[eacute] of the contractor who will be 
conducting the training.
    (c) The training will include the willful issues discussed in the 
NRC's ``Notice of Violation and Proposed Imposition of Civil Penalty--
$20,800 and Order Modifying License'' issued to AIX on August 20, 2008, 
and the willful

[[Page 36159]]

issues discussed in NRC Inspection Report 030-10346/2009-001 dated 
March 3, 2011.
    (d) At least 14 days prior to the training, AIX will provide the 
NRC with an outline of the topics to be covered during this training 
session.
    2. AIX will use an independent auditor to perform the annual review 
of its radiation safety and compliance program. The auditor will 
utilize the AIX RSO to assist during the review of the radiation safety 
program. The audits will use the guidance contained in NUREG 1556 
(Volume 2), and include an audit of adherence to applicable security 
requirements by AIX. The first annual program review will be completed 
by February 15, 2012, for the calendar year 2011. The final annual 
program review will be completed by February 15, 2013, for the calendar 
year 2012.
    (a) AIX to submit within 60 days of the date of this order the name 
of the independent auditor planned to perform the annual review.
    (b) If AIX decides to use an auditor which the NRC has not 
previously approved, AIX must submit the auditor's r[eacute]sum[eacute] 
to the NRC for approval prior to using the individual.
    (c) The auditor will submit their findings to both AIX and the NRC 
simultaneously. Within 30 days after receiving the auditor's findings, 
AIX will submit to the NRC its response to the audit findings, 
including any corrective actions needed to address the auditor's 
findings.
    3. From the date of the ADR Confirmatory Order until June 30, 2013, 
NRC management and AIX will conduct conference calls at approximately 
six-month intervals to review audit and/or inspection results.
    4. From the date of the ADR Confirmatory Order until June 30, 2013, 
the president of AIX or RSO shall perform quarterly audits of AIX 
radiographers as they conduct radiography. To the maximum extent 
possible, the audits shall include observations such that the crew 
cannot detect his presence. During these audits, the president of AIX 
or RSO must, to the extent possible, prevent violations from occurring 
or continuing as he observes the radiography crews, even in situations 
where the crew has not detected his presence prior to the violation. 
These audits must be separate and apart from any required audits 
performed for compliance with 10 CFR 34.43(e). Records shall be 
maintained documenting these audits and the results of the audits.
    A Civil Penalty in the amount of $1,000 will be assessed by the 
NRC.
    This ADR confirmatory order will supersede the NRC Order Modifying 
License (EA-08-196).
    The Regional Administrator, Region IV, or designee, 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 Licensee, may request a hearing within 20 days of its publication 
in the Federal Register. 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-
0001, and include a statement of good cause for the extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by e-mail at hearing.docket@nrc.gov, or by 
telephone at 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 
proceeding in which it is participating; and (2) advise the Secretary 
that the participant will be submitting a request or petition for 
hearing (even in instances in which the participant, or its counsel or 
representative, already holds an NRC-issued digital identification (ID) 
certificate). Based upon this information, the Secretary will establish 
an electronic docket for the hearing in this proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
https://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange System, 
users will be required to install a Web browser plug-in from the NRC 
Web site. Further information on the Web-based submission form, 
including the installation of the Web browser plug-in, is available on 
the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document.
    The E-Filing 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 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they

[[Page 36160]]

can obtain access to the document via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at https://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
MSHD.Resource@nrc.gov, or by a toll-free call at 1-866-672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
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. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
https://ehd1.nrc.gov/EHD/, unless excluded pursuant to an order of the 
Commission, or the 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, unless an NRC 
regulation or other law requires submission of such information. With 
respect to copyrighted works, except for limited excerpts that serve 
the purpose of the adjudicatory filings and would constitute a Fair Use 
application, participants are requested not to include copyrighted 
materials in their submission.
    If a person (other than Licensee) requests a hearing, that person 
shall set forth with particularity the manner in which his or her 
interest is adversely affected by this Confirmatory Order and shall 
address the criteria set forth in 10 CFR 2.309(d) and (f).
    If a hearing is requested by a person whose interest is adversely 
affected, the Commission will issue an order designating the time and 
place of any 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 this 
Confirmatory Order is published in the Federal Register 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.

    Dated this 7th day of June 2011.

    For the Nuclear Regulatory Commission.
Elmo E. Collins,
Regional Administrator.
[FR Doc. 2011-15394 Filed 6-20-11; 8:45 am]
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