[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Notices]
[Pages 39340-39343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18821]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0342; IA-09-026]


In the Matter of Mr. Michael T. Hackett; Confirmatory Order 
(Effective Immediately)

I

    Mr. Michael Hackett is currently the Radiation Safety Officer (RSO) 
for the Department of Veterans Affairs (DVA) Medical Center, located in 
Lexington, Kentucky, and is named as such on Permit 16-08896-04, issued 
by the Department of Veterans Affairs (licensee) under the authority 
granted them by Master Materials License (MML) Number 03-23853-01VA.

[[Page 39341]]

    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on June 26, 2009.

II

    On September 17, 2007, the DVA National Health Physics Program 
(NHPP) inspectors performed an inspection at the DVA Medical Center 
located in Lexington, Kentucky. The Medical Center is a permitee under 
the DVA's MML. During the inspection, the NHPP inspectors determined 
that the RSO had not implemented portions of the radiation safety 
program including not holding periodic Radiation Safety Committee 
meetings; not performing annual program reviews; and not performing 
required hazardous material training. Furthermore, the NHPP determined 
that the RSO's actions were deliberate. A contributing cause was the 
permitee's assignment of a collateral duty to the RSO as the Controlled 
Substance Coordinator.
    Based on the NHPP determination, the NRC began an investigation 
into the actions of the RSO. On December 18, 2008, the Office of 
Investigations issued an investigation report and on February 23, 2009, 
the NRC determined that violations of NRC requirements had occurred at 
the DVA Medical Center located in Lexington, Kentucky. The NRC also 
preliminarily determined that Mr. Michael Hackett's actions, as the 
RSO, caused the permittee to be in apparent violation of the above 
requirements.
    The results of the investigation were sent to Mr. Michael Hackett 
in a letter dated April 16, 2009. This letter offered Mr. Michael 
Hackett the opportunity to either participate in Alternative Dispute 
Resolution (ADR) mediation or to attend a Predecisional Enforcement 
Conference. In response to the NRC's offer, Mr. Michael Hackett 
requested use of the NRC's ADR process to resolve the differences he 
had with the NRC. On May 18, 2009, the NRC and Mr. Michael Hackett 
agreed to mediate. On June 26, 2009, the NRC and Mr. Michael Hackett 
participated in an ADR session mediated by a professional mediator, 
arranged through Cornell University's Institute on Conflict Resolution. 
As used by the NRC, 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 June 26, 2009, ADR session, a preliminary settlement 
agreement was reached. The elements of the agreement consisted of the 
following:
    1. Mr. Michael Hackett agrees to submit to the NRC and NHPP a plan 
on how he will accomplish all the tasks assigned to him as RSO in the 
permit, and what steps he will take to ensure that the infrastructure 
exists for those duties with a long periodicity (i.e., once a year, or 
once every three years) and what steps he will take to ensure that the 
permittee, the NHPP, and the NRC are aware that he is accomplishing his 
assigned duties within 60 days of the issuance of the Confirmatory 
Order. In addition to the above, such plan shall contain the following:
    a. Within 45 days following each periodic (quarterly) Radiation 
Safety Committee meeting, Mr. Michael Hackett will provide minutes of 
the meeting to the permitee, the NHPP, and the NRC. This will continue 
for a period of one year from the date of the issuance of the 
Confirmatory Order.
    b. Within 45 days following completion of the next annual program 
review following issuance of the Confirmatory Order, Mr. Michael 
Hackett will provide the results of the review to the permitee, the 
NHPP, and the NRC.
    c. Within 45 days following completion of the next periodic 
training, conducted following issuance of the Confirmatory Order, 
regarding transportation and receipt of radioactive material, Mr. 
Michael Hackett will provide a curriculum of subjects covered and a 
list of individuals who were required to attend and a list of attendees 
[with personal privacy information redacted] to the permitee, the NHPP, 
and the NRC.
    d. Within 45 days, Mr. Michael Hackett agrees to inform the NRC if 
he has been assigned, and has accepted, the responsibility for any 
additional collateral duties that may impact his ability to 
successfully fulfill his responsibilities as the Radiation Safety 
Officer. This will include his evaluation of how he will monitor the 
collateral duties to ensure that they do not overwhelm his primary RSO 
responsibilities. This will continue for one year from the issuance of 
the Confirmatory Order.
    2. If, at any time, Mr. Michael Hackett is unable to perform any of 
his Radiation Safety Officer responsibilities, he will notify the NHPP 
and the NRC within 30 days.
    3. Within 90 days following the issuance of the Confirmatory Order, 
Mr. Michael Hackett agrees to prepare and submit to the NRC an article, 
for subsequent submittal and consideration for publication by the NHPP, 
to inform others of: (1) The importance of ensuring that a VA radiation 
safety program fulfills all NRC safety requirements; and (2) developing 
the necessary infrastructure and communication paths to identify and 
resolve competing priorities that may preclude successful 
implementation of a VA radiation safety program. Within 30 days 
following receipt of approval from the NRC, Mr. Michael Hackett will 
submit the article to the NHPP for publication.
    4. Mr. Michael Hackett agrees that he will inform the NRC if he 
leaves his RSO position before the terms of this Order are completed. 
The terms of the Order will remain in abeyance and will be reinstated 
if he accepts a position as or resumes the duties of an RSO within two 
years of the date of the Order.
    5. The NRC agrees not to pursue any further enforcement action in 
connection with the NRC's April 16, 2009, letter to Mr. Michael 
Hackett. This does not prohibit NRC from taking enforcement action in 
accordance with the NRC Enforcement Policy if Mr. Michael Hackett 
commits a similar violation in the future or violates this Order.
    6. Within 45 days, Mr. Michael Hackett agrees to inform the NRC of 
any condition that may preclude him from complying with any of the 
conditions of this Order. In such event, Mr. Michael Hackett may 
request relief from the associated requirements of the Order.
    7. Mr. Michael Hackett has made no admission that he violated any 
NRC requirements and this agreement is settlement of a disputed claim 
in order to avoid litigation and further action by the NRC.

On July 9, 2009, Mr. Michael Hackett consented to issuing this Order 
with the commitments, as described in Section V below. Mr. Michael 
Hackett further agreed that this Order is to be effective upon issuance 
and that he has waived his right to a hearing.

IV

    Since Mr. Michael Hackett 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. Michael Hackett'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

[[Page 39342]]

foregoing, I have determined that public health and safety require that 
Mr. Michael Hackett's commitments be confirmed by this Order. Based on 
the above, and Mr. Michael Hackett'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 30, it is hereby ordered, 
effective immediately:
    1. Mr. Michael Hackett agrees to submit to the NRC and NHPP a plan 
on how he will accomplish all the tasks assigned to him as RSO in the 
permit, and what steps he will take to ensure that the infrastructure 
exists for those duties with a long periodicity (i.e., once a year, or 
once every three years) and what steps he will take to ensure that the 
permittee, the NHPP, and the NRC are aware that he is accomplishing his 
assigned duties within 60 days of the issuance of the Confirmatory 
Order. In addition to the above, such plan shall contain the following:
    a. Within 45 days following each periodic (quarterly) Radiation 
Safety Committee meeting, Mr. Michael Hackett will provide minutes of 
the meeting to the permitee, the NHPP, and the NRC. This will continue 
for a period of one year from the date of the issuance of the 
Confirmatory Order.
    b. Within 45 days following completion of the next annual program 
review following issuance of the Confirmatory Order, Mr. Michael 
Hackett will provide the results of the review to the permitee, the 
NHPP, and the NRC.
    c. Within 45 days following completion of the next periodic 
training, conducted following issuance of the Confirmatory Order, 
regarding transportation and receipt of radioactive material, Mr. 
Michael Hackett will provide a curriculum of subjects covered and a 
list of individuals who were required to attend and a list of attendees 
[with personal privacy information redacted] to the permitee, the NHPP, 
and the NRC.
    d. Within 45 days, Mr. Michael Hackett agrees to inform the NRC if 
he has been assigned, and has accepted, the responsibility for any 
additional collateral duties that may impact his ability to 
successfully fulfill his responsibilities as the Radiation Safety 
Officer. This will include his evaluation of how he will monitor the 
collateral duties to ensure that they do not overwhelm his primary RSO 
responsibilities. This will continue for one year from the issuance of 
the Confirmatory Order.
    2. If, at any time, Mr. Michael Hackett is unable to perform any of 
his Radiation Safety Officer responsibilities, he will notify the NHPP 
and the NRC within 30 days.
    3. Within 90 days following the issuance of the Confirmatory Order, 
Mr. Michael Hackett agrees to prepare and submit to the NRC an article, 
for subsequent submittal and consideration for publication by the NHPP, 
to inform others of: (1) The importance of ensuring that a VA radiation 
safety program fulfills all NRC safety requirements; and (2) developing 
the necessary infrastructure and communication paths to identify and 
resolve competing priorities that may preclude successful 
implementation of a VA radiation safety program. Within 30 days 
following receipt of approval from the NRC, Mr. Michael Hackett will 
submit the article to the NHPP for publication.
    4. Mr. Michael Hackett agrees that he will inform the NRC if he 
leaves his RSO position before the terms of this Order are completed. 
The terms of the Order will remain in abeyance and will be reinstated 
if he accepts a position as or resumes the duties of an RSO within two 
years of the date of the Order.
    5. Within 45 days, Mr. Michael Hackett agrees to inform the NRC of 
any condition that may preclude him from complying with any of the 
conditions of this Order. In such event, Mr. Michael Hackett may 
request relief from the associated requirements of the Order.
    Notifications to the NRC, as outlined in the above items, should be 
made to the Regional Administrator, NRC Region III, 2443 Warrenville 
Road, Lisle, Illinois 60532.
    The Regional Administrator, NRC Region III, may, in writing, relax 
or rescind any of the above conditions upon demonstration by Mr. 
Michael Hackett of good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Michael Hackett, may request a hearing within 20 days of the 
Order's 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 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 49,139 
(Aug. 28, 2007). The E-Filing process requires participants to submit 
and serve documents over the Internet or, in some cases, to mail copies 
on electronic optical storage media. Participants may not submit paper 
copies of their filings unless they seek a waiver in accordance with 
the procedures described below.
    To comply with the procedural requirements associated with E-
Filing, at least five days prior to the filing deadline the requestor 
must contact the Office of the Secretary by e-mail at 
<a href="/cdn-cgi/l/email-protection#bed6dbdfccd7d0d9dad1ddd5dbcafed0ccdd90d9d1c8"><span class="__cf_email__" data-cfemail="4028252132292e27242f232b2534002e32236e272f36">[email protected]</span></a>, 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 http://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 http://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 http://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

[[Page 39343]]

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 using the agency's adjudicatory e-
filing system may seek assistance through the ``Contact Us'' link 
located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC Meta-System Help Desk, which is 
available between 8 a.m. and 8 p.m., Eastern Time, Monday through 
Friday, excluding government holidays. The Meta-System Help Desk can be 
contacted by telephone at 1-866-672-7640 or by e-mail at 
<a href="/cdn-cgi/l/email-protection#1d504e5559334f786e72686f7e785d736f7e337a726b"><span class="__cf_email__" data-cfemail="5a1709121e74083f29352f28393f1a342839743d352c">[email protected]</span></a>.
    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 
http://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 Mr. Michael Hackett 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 this 
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 28th day of July 2009.

    For the Nuclear Regulatory Commission.
Mark A. Satorius,
Regional Administrator, Region III.
[FR Doc. E9-18821 Filed 8-5-09; 8:45 am]
BILLING CODE 7590-01-P


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