[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Notices]
[Pages 52265-52267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24423]


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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0445, Docket Number 030-32764, License Number 13-26408-01, 
EA-09-114]


In the Matter of Earth Exploration, Inc.: Indianapolis, IN; 
Confirmatory Order (Effective Immediately)

I

    Earth Exploration, Inc., (Earth Exploration or licensee) is the 
holder of Materials License No. 13-26408-01 issued by the U.S. Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 30 on 
June 3, 1992. The license authorizes Earth Exploration to store 
portable gauges at its permanent facilities in Indianapolis and South 
Bend, Indiana, and to use those portable gauges at temporary job sites.
    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on August 25, 2009.

II

    On July 21, 2008, the NRC conducted an onsite inspection at the 
Earth Exploration main office in Indianapolis, Indiana, and at two 
temporary job sites in Indianapolis. Additional onsite inspections were 
held on August 14 and 15, 2008, at the South Bend field office and a 
temporary job site in South Bend, Indiana. The purpose of the 
inspections was to review licensee activities related to radiation 
safety and to assess licensee compliance with the Commission's rules 
and regulations and with the conditions of the Earth Exploration 
license. As a result of the inspection observations, the NRC Office of 
Investigations (OI) initiated an investigation (OI Case No. 3-2008-026) 
and on April 27, 2009, the NRC preliminarily determined that apparent 
violations of NRC requirements had occurred at Earth Exploration. The 
apparent violations included failure to: (1) Perform annual reviews of 
the radiation protection program as required by 10 CFR 20.1101(c); (2) 
perform leak testing of sealed sources as required by License Condition 
13; (3) perform physical inventories every 6 months of sealed sources 
as required by License Condition 16; (4) ensure that dosimetry provided 
to gauge users was processed and evaluated by a processor approved 
through the National Voluntary Laboratory Accreditation Program as 
required by License Condition 21; (5) ensure through the Radiation 
Safety Officer that required tests and conditions of the NRC license 
are performed as required by License Condition 21; (6) secure, on 
multiple occasions, portable gauges using two independent physical 
barriers as required by 10 CFR 30.34(i); and (7) lock a gauge or gauge 
case when in storage as required by License Condition 19. Additionally, 
the NRC identified five potential violations of 10 CFR 71.5 in regard 
to transportation of radioactive material in accordance with Department 
of Transportation regulations in 49 CFR. These potential violations 
included failure to: (1) Ensure proper/legible markings on packages as 
required by 49 CFR 178.3(a); (2) label transport packages as required 
by 49 CFR 172.403(b); (3) block and brace two packages as required by 
49 CFR 177.842(b); (4) ensure the accessibility of shipping papers as 
required by 49 CFR 177.817(e); and (5) provide an emergency response 
telephone number which is monitored at all times when radioactive 
material is in transportation as required by 49 CFR 172.604(a)(1).
    The results of the investigation were sent to Earth Exploration in 
a letter dated July 21, 2009. This letter offered Earth Exploration the 
opportunity to either participate in ADR mediation or to attend a 
Predecisional Enforcement Conference. In response to the NRC's offer, 
Earth Exploration requested use of the NRC's ADR process to resolve the 
issues. On July 31, 2009, the NRC and Earth Exploration agreed to 
mediation. On August 25, 2009, the NRC and Earth Exploration 
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 August 25, 2009, ADR session, a preliminary settlement 
agreement was reached. The elements of the agreement consisted of the 
following:
    1. Earth Exploration acknowledges the above violations and confirms 
that the violations have been corrected as of August 31, 2008.
    2. Earth Exploration agrees to retain a qualified consultant to 
audit the performance of its radiation safety program on an annual 
basis for a period of 5 years, with the first audit occurring within 3 
months of the date of the Confirmatory Order. Copies of the 
consultant's audit reports will be submitted to the Director for the 
Division of Nuclear Materials Safety, Region III, NRC, within 6 weeks 
following completion of the audit.
    3. Earth Exploration agrees that the Radiation Safety Officer's 
supervisor, and two individuals acting as assistant Radiation Safety 
Officers, one each from the South Bend and Indianapolis offices, will 
receive training on how to manage a radiation safety program. The 
training is to be scheduled within 3 months of the date of the 
Confirmatory Order and the training is to be conducted within 6 months 
of the date of the Confirmatory Order. Within 2 weeks of completion of 
the training, Earth Exploration will submit to the Director for the 
Division of Nuclear Materials Safety, Region III, NRC, the course 
syllabus (to include the dates

[[Page 52266]]

and location of the course) and a list of attendees.
    4. Within 3 months of the date of the Confirmatory Order, Earth 
Exploration agrees to conduct ``lessons learned'' training, to be given 
by the Radiation Safety Officer and to be attended by all employees 
involved in gauge use, to address oversight of the radiation safety 
program; duties and responsibilities of the Radiation Safety Officer; 
and transportation, use, and security for portable gauges. The training 
shall also address employees' responsibility to report safety concerns 
to licensee management and the availability of informing the NRC of any 
concerns. Within 2 weeks of completing this internal training for all 
employees involved in gauge use, Earth Exploration will submit an 
outline of the presentation and a list of attendees to the Director for 
the Division of Nuclear Materials Safety, Region III, NRC.
    5. Within 30 days of the date of the Confirmatory Order, Earth 
Exploration agrees to have the Radiation Safety Officer prepare and 
submit to the Director for the Division of Nuclear Materials Safety, 
Region III, NRC, a plan to inform other organizations of the lessons 
learned about the importance of ensuring robust radiation safety 
program requirements and developing the necessary infrastructure and 
communication paths to identify and resolve competing priorities that 
may preclude successful implementation. As a part of the plan, Earth 
Exploration will submit either the article or a presentation outline to 
the Director for the Division of Nuclear Materials Safety, Region III, 
NRC, for review prior to its use.
    6. Earth Exploration, by signing the Agreement in Principle, makes 
no admission that any employee of Earth Exploration deliberately 
violated any NRC requirements and this agreement is settlement of a 
disputed claim in order to avoid further action by the NRC.
    7. The NRC agrees to not pursue any further enforcement action in 
connection with the NRC's July 21, 2009, letter to Earth Exploration. 
This does not prohibit the NRC from taking an enforcement action, in 
accordance with the NRC Enforcement Policy, if Earth Exploration 
commits a similar violation in the future or violates the Order.
    On September 10, 2009, Earth Exploration consented to issuing this 
Order with the commitments, as described in Section V below. Earth 
Exploration further agreed that this Order is to be effective upon 
issuance and that it has waived its right to a hearing.

IV

    Since Earth Exploration 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 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 
Earth Exploration's commitments be confirmed by this Order. Based on 
the above, and Earth Exploration'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. Earth Exploration shall retain a qualified consultant to audit 
the performance of its radiation safety program on an annual basis for 
a period of 5 years, with the first audit occurring within 3 months of 
the date of the Confirmatory Order. Copies of the consultant's audit 
reports will be submitted to the Director for the Division of Nuclear 
Materials Safety, Region III, NRC, within 6 weeks following completion 
of the audit.
    2. Earth Exploration shall ensure that the Radiation Safety 
Officer's supervisor, and two individuals acting as assistant Radiation 
Safety Officers, one each from the South Bend and Indianapolis offices, 
will receive training on how to manage a radiation safety program. The 
training shall be scheduled within 3 months of the date of the 
Confirmatory Order and the training is to be conducted within 6 months 
of the date of the Confirmatory Order. Within 2 weeks of completion of 
the training, Earth Exploration shall submit to the Director for the 
Division of Nuclear Materials Safety, Region III, NRC, the course 
syllabus (to include the dates and location of the course) and a list 
of attendees.
    3. Earth Exploration shall, within 3 months of the date of the 
Confirmatory Order, conduct ``lessons learned'' training, to be given 
by the Radiation Safety Officer and to be attended by all employees 
involved in gauge use. The training shall address oversight of the 
radiation safety program; duties and responsibilities of the Radiation 
Safety Officer; and transportation, use, and security for portable 
gauges. The training shall also address employees' responsibility to 
report safety concerns to licensee management and the availability of 
informing the NRC of any concerns. Within 2 weeks of completing this 
internal training for all employees involved in gauge use, Earth 
Exploration shall submit an outline of the presentation and a list of 
attendees to the Director for the Division of Nuclear Materials Safety, 
Region III, NRC.
    4. Earth Exploration shall, within 30 days of the date of the 
Confirmatory Order, prepare and submit to the Director for the Division 
of Nuclear Materials Safety, Region III, NRC, a plan to inform other 
organizations of the lessons learned about the importance of ensuring 
robust radiation safety program requirements and developing the 
necessary infrastructure and communication paths to identify and 
resolve competing priorities that may preclude successful 
implementation. As a part of the plan, Earth Exploration shall submit 
either the article or a presentation outline, to the Director for the 
Division of Nuclear Materials Safety, Region III, NRC, for review prior 
to its use.
    The Regional Administrator, Region III, NRC, may, in writing, relax 
or rescind any of the above conditions upon demonstration by Earth 
Exploration of good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Earth Exploration, 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 28, 2007, (72 FR 
49139). 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

[[Page 52267]]

<a href="/cdn-cgi/l/email-protection#96fef3f7e4fff8f1f2f9f5fdf3e2d6f8e4f5b8f1f9e0"><span class="__cf_email__" data-cfemail="442c2125362d2a23202b272f2130042a36276a232b32">[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 ViewerJ to access the Electronic 
Information Exchange (EIE), a component of the E-Filing system. The 
Workplace Forms Viewer<SUP>TM</SUP> 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 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#3578667d711b6750465a40475650755b47561b525a43"><span class="__cf_email__" data-cfemail="fcb1afb4b8d2ae998f93898e9f99bc928e9fd29b938a">[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 Earth Exploration 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.

    For the U.S. Nuclear Regulatory Commission.

     Dated this 1st day of October 2009.
Cynthia D. Pederson,
Deputy Regional Administrator, Region III.
[FR Doc. E9-24423 Filed 10-8-09; 8:45 am]
BILLING CODE 7590-01-P


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