[Federal Register Volume 87, Number 47 (Thursday, March 10, 2022)]
[Notices]
[Pages 13774-13777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05027]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-29146; License No. 21-24685-01; EA-21-146; NRC-2022-
0056]


In the Matter of Somat Engineering, Inc.

AGENCY: Nuclear Regulatory Commission.

ACTION: Confirmatory order; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a 
Confirmatory Order to Somat Engineering, Inc. (Somat) to document 
commitments made as part of a settlement agreement made between the NRC 
and Somat following an alternative dispute resolution mediation session 
held on January 11, 2022. The mediation addressed three apparent 
violations involving Somat's failure to secure portable moisture 
density gauges against loss or unauthorized access or removal. Somat 
has committed to various measures intended to improve its ability to 
track such gauges, to improve employee awareness of their 
responsibilities to secure such gauges against loss or unauthorized 
access, and to share their lessons learned with others in the industry. 
The Confirmatory Order is effective upon issuance.

DATES: The confirmatory order was issued on March 3, 2022.

ADDRESSES: Please refer to Docket ID NRC-2022-0056 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly available information related to this document 
using any of the following methods:
    <bullet> Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0056. Address 
questions about Docket IDs in Regulations.gov to Stacy Schumann; 
telephone: 301-415-0624; email: <a href="/cdn-cgi/l/email-protection#ca99beaba9b3e499a9a2bfa7aba4a48aa4b8a9e4ada5bc"><span class="__cf_email__" data-cfemail="16456277756f3845757e637b7778785678647538717960">[email protected]</span></a>. For technical 
questions, contact the individual listed in the For Further Information 
Contact section of this document.
    <bullet> NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to <a href="/cdn-cgi/l/email-protection#104054423e4275637f65627375507e62733e777f66"><span class="__cf_email__" data-cfemail="8adaced8a4d8eff9e5fff8e9efcae4f8e9a4ede5fc">[email protected]</span></a>. The Confirmatory Order to Somat 
Engineering, Inc is available in ADAMS under Accession No. ML22025A039.
    <bullet> NRC's PDR: You may examine and purchase copies of public 
documents, by appointment, at the NRC's PDR, Room P1 B35, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make 
an appointment to visit the PDR, please send an email to 
<a href="/cdn-cgi/l/email-protection#93c3d7c1bdc1f6e0fce6e1f0f6d3fde1f0bdf4fce5"><span class="__cf_email__" data-cfemail="702034225e2215031f05021315301e02135e171f06">[email protected]</span></a> or call 1-800-397-4209 or 301-415-4737, between 
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Shelbie Lewman, Region III, U.S. 
Nuclear Regulatory Commission, telephone: 630-829-9653, email: 
<a href="/cdn-cgi/l/email-protection#45162d2029272c206b09203228242b052b37266b222a33"><span class="__cf_email__" data-cfemail="6c3f0409000e05094220091b010d022c021e0f420b031a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The text of the Order is attached.

    Dated: March 4, 2022.

    For the Nuclear Regulatory Commission.
Mohammed A. Shuaibi,
Deputy Regional Administrator, NRC Region III.

Attached--Confirmatory Order

United States of America

Nuclear Regulatory Commission

In the Matter of Somat Engineering, Inc.

030-29146
21-24685-01
EA-21-146

Confirmatory Order Modifying License (Effective Upon Issuance)

I

    Somat Engineering, Inc. (Somat or the licensee) is the holder of 
Nuclear Materials License No. 21-24685-01 renewed on September 24, 
2021, by the U.S. Nuclear Regulatory Commission (NRC or Commission) 
pursuant to Part 30 of Title 10 of the Code of Federal Regulations (10 
CFR). The license authorizes the operation of portable moisture/density 
gauges containing licensed radioactive materials for measuring physical 
properties of materials at temporary job sites in NRC jurisdiction in 
accordance with conditions specified in the license. The licensee's 
facilities are located in Grand Rapids and Taylor, Michigan.
    This Confirmatory Order (CO) is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on January 11, 2022, in Lisle, Illinois.

II

    On November 2, 2021, the NRC issued Inspection Report 03029146/
2021001(DNMS) to Somat, which documented the identification of three 
apparent violations that were being considered for escalated 
enforcement action in accordance with the NRC Enforcement Policy. The 
apparent violations concerned: (1) The loss of a portable moisture 
density gauge due to

[[Page 13775]]

the failure to control and maintain constant surveillance of the gauge 
after failing to secure it as required by 10 CFR 20.1802 and 10 CFR 
30.34(i); (2) the failure to secure this gauge from shifting during 
transportation as required by 10 CFR 71.5(a) and 49 CFR 173.448(a); and 
(3) the failure to secure a second portable moisture density gauge from 
unauthorized removal or access as required by 10 CFR 20.1801 and 10 CFR 
30.34(i).
    The NRC notified Somat by letter, dated November 2, 2021, 
(Agencywide Documents Access and Management System (ADAMS) Accession 
No. ML21302A205) of the results of the inspection with an opportunity 
to: (1) Provide a response in writing, (2) attend a predecisional 
enforcement conference, or (3) to participate in an ADR mediation 
session in an effort to resolve this matter.
    In response to the NRC's offer, Somat requested the use of the 
NRC's ADR process to resolve differences it had with the NRC. On 
January 11, 2022, the NRC and Somat met in an ADR session mediated by a 
professional mediator, arranged through Cornell University's Institute 
on Conflict Resolution. The ADR process is one 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 ADR session, Somat and the NRC reached a preliminary 
settlement agreement.
    The NRC recognizes that immediately following each incident, Somat 
took corrective actions. As a corrective action with respect to the 
lost gauge, Somat made a concerted effort to recover the gauge, 
suspended the technician responsible for the loss without pay and 
required him to retake all company training related to gauge use, and 
reiterated policies and expectations for gauge use to all technicians. 
As a corrective action with respect to the unsecured gauge, Somat's 
management sent a memo to all technicians reiterating requirements and 
expectations for maintaining control of vehicles and their contents.
    Therefore, the parties agree to the following terms and conditions:
    1. Somat commits to create and implement an electronic form that 
will be used by Somat field personnel to verify the presence and 
security of licensed gauges any time prior to leaving the storage 
location of the gauges or a job site where gauges are used. The form 
will be completed electronically and submitted with a photo of the 
secured gauge in the vehicle (except for rare occurrences, e.g., 
inoperable phone camera). An independent Somat representative will 
review the forms on a random basis, and there will be no fewer than 3 
reviews per week when gauges are in use. This commitment will be 
implemented no later than May 1, 2022. Somat will evaluate the 
effectiveness of this commitment and develop a report no later than one 
year following the date of this Confirmatory Order, to be made 
available to NRC inspectors for review.
    2. Somat commits to engage with the Michigan Department of 
Transportation (MDOT) to propose a lessons-learned summary of these 
incidents for inclusion in MDOT's initial and refresher training of 
moisture density gauge technicians. This summary need not identify 
Somat's company information or that of its personnel. This contact will 
occur no later than December 31, 2022.
    3. Somat commits to engage with InstroTek Incorporated to propose a 
lessons-learned summary of these incidents for inclusion into 
InstroTek's periodic ``lunch and learn'' seminars. This summary need 
not identify Somat's company information or that of its personnel. This 
contact will occur no later than December 31, 2022.
    4. Somat commits to include a discussion of these incidents, with 
lessons learned, at its Annual Pre-Season Construction Field Staff 
Meeting(s) occurring no later than June 30, 2022.
    5. Somat commits to include a discussion of these incidents, with 
lessons learned, at one of its bi-weekly management meetings occurring 
no later than May 1, 2022.
    6. Somat commits to include a discussion of these incidents, with 
lessons learned, at its next Health and Safety Committee Meeting no 
later than May 1, 2022. The minutes from the Health and Safety 
Committee Meeting will include the discussion of the incident and will 
be provided to all company personnel. These minutes will be provided no 
later than May 1, 2022.
    7. Somat commits to enhance its job site audit program--specific to 
the use of gauges--to perform audits of job sites more frequently. 
Specifically, one audit will occur each week at a job site chosen at 
random when gauges are in use. These enhanced audits will begin no 
later than May 1, 2022.
    8. Somat commits to an independent review, to be performed by a 
Somat employee not engaged in the day-to-day operations of moisture 
density gauge use, of the two 2022 bi-annual program audits. This 
review will be completed no later than December 31, 2022.
    9. Somat commits to incorporate tracking devices to enhance its 
ability to track the location of moisture density gauges. In addition 
to three existing gauges with internal tracking capability, one 
additional gauge with internal tracking capability will be procured and 
fielded no later than December 31, 2022. Additionally, for a trial 
period, 50 percent of Somat's remaining gauges or their transport cases 
will be fitted and fielded with aftermarket tracking devices no later 
than August 1, 2022. The trial period will end no later than November 
30, 2022. At that time, Somat will prepare a report available for NRC 
inspector review with the results of the trial period and 
recommendations for future use of aftermarket tracking devices. This 
report will be completed no later than one year following the date of 
this Confirmatory Order.
    Based on the completed actions and commitments described above and 
the license modifications described in Section V below, the NRC agrees 
not to pursue any further enforcement action in connection with the 
apparent violations described in NRC's letter dated November 2, 2021, 
and relating to Inspection Report 03029146/2021001(DNMS). In further 
consideration of the commitments delineated above, the NRC agrees to 
refrain from issuing a notice of violation or proposing a civil 
penalty. However, the NRC will consider this Confirmatory Order as an 
escalated enforcement action.
    This agreement is binding upon successors or assignees of Somat. 
The terms and conditions set forth herein shall accordingly continue to 
apply to Somat and survive any transfer of ownership or license.
    On January 11, 2022, Somat consented to issuing this Confirmatory 
Order with the commitments as described in Section V below. Somat 
further agreed that this Confirmatory Order is to be effective upon 
issuance, the agreement memorialized in this Confirmatory Order settles 
the matter between the parties, and that it has waived its right to a 
hearing.

IV

    I find that Somat's actions completed as described in Section III 
above, combined with the commitments as set forth above and 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

[[Page 13776]]

determined that public health and safety require that Somat's 
commitments be confirmed by this Confirmatory Order. Based on the above 
and Somat's consent, this Confirmatory Order is effective upon 
issuance.
    By no later than thirty (30) days after the completion of the 
commitments specified in Section V, Somat is required to notify the NRC 
in writing and summarize its actions.

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 20, 30, and 71, and in 49 
CFR part 173, it is hereby ordered, effective upon issuance, that 
License No. 21-24685-01 is modified as follows:
    1. No later than May 1, 2022, Somat will create and implement an 
electronic form that will be used by Somat field personnel to verify 
the presence and security of licensed gauges any time prior to leaving 
the storage location of the gauges or a job site where gauges are used. 
The form will be completed electronically and submitted with a photo of 
the secured gauge in the vehicle (except for rare occurrences, e.g., 
inoperable phone camera). An independent Somat representative will 
review the forms on a random basis, and there will be no fewer than 3 
reviews per week when gauges are in use. Somat will evaluate the 
effectiveness of this commitment and develop a report no later than one 
year following the date of this Confirmatory Order, to be made 
available to NRC inspectors for review.
    2. No later than December 31, 2022, Somat will engage with the 
Michigan Department of Transportation (MDOT) to propose a lessons-
learned summary of these incidents for inclusion in MDOT's initial and 
refresher training of moisture density gauge technicians. This summary 
need not identify Somat's company information or that of its personnel.
    3. No later than December 31, 2022, Somat will engage with 
InstroTek Incorporated to propose a lessons-learned summary of these 
incidents for inclusion into InstroTek's periodic ``lunch and learn'' 
seminars. This summary need not identify Somat's company information or 
that of its personnel.
    4. No later than June 30, 2022, Somat will include a discussion of 
these incidents, with lessons learned, at its Annual Pre-Season 
Construction Field Staff Meeting(s).
    5. No later than May 1, 2022, Somat will include a discussion of 
these incidents, with lessons learned, at one of its bi-weekly 
management meetings occurring.
    6. No later than May 1, 2022, Somat will include a discussion of 
these incidents, with lessons learned, at its next Health and Safety 
Committee Meeting. The minutes from the Health and Safety Committee 
Meeting will include the discussion of the incident and will be 
provided to all company personnel no later than May 1, 2022.
    7. No later than May 1, 2022, Somat will enhance its job site audit 
program--specific to the use of gauges--to perform audits of job sites 
more frequently. Specifically, one audit will occur each week at a job 
site chosen at random when gauges are in use.
    8. No later than December 31, 2022, a Somat employee who is not 
engaged in the day-to-day operations of moisture density gauges will 
perform an independent review of two bi-annual program audits.
    9. Somat will incorporate tracking devices to enhance its ability 
to track the location of moisture density gauges. In addition to 
Somat's three existing gauges with internal tracking capability, Somat 
will procure and field one additional gauge with internal tracking 
capability no later than December 31, 2022. Additionally, for a trial 
period beginning no later than August 1, 2022, 50 percent of Somat's 
remaining gauges or their transport cases will be fitted and fielded 
with aftermarket tracking devices. The trial period will end no later 
than November 30, 2022. At that time, Somat will prepare a report 
available for NRC inspector review with the results of the trial period 
and recommendations for future use of aftermarket tracking devices. 
This report will be completed no later than one year following the date 
of this Confirmatory Order.
    This agreement is binding upon successors or assignees of Somat. 
The terms and conditions set forth hereunder shall continue to apply to 
Somat and survive any transfer of ownership or license. The Regional 
Administrator, Region III may, in writing, relax or rescind any of the 
above conditions upon demonstration by Somat or its successors of good 
cause.

VI

    In accordance with 10 CFR 2.202 and 10 CFR 2.309, any person 
adversely affected by this Confirmatory Order, other than Somat, may 
request a hearing within thirty (30) calendar days of the date of 
issuance of this Confirmatory Order. 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, and include a statement of good cause for the 
extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing and petition for leave to intervene, any motion of 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by an 
interested State, local governmental body, Federally-recognized Indian 
Tribe, or designated agency thereof that requests to participate under 
10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. 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, unless an exemption permitting an 
alternative filing method, as discussed below, is granted. Detailed 
guidance on electronic submissions is located in the Guidance for 
Electronic Submissions to the NRC (ADAMS Accession No. ML13031A056) and 
on the NRC website at https://www.nrc.gov/site-help/e-submittals.html.
    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 email at <a href="/cdn-cgi/l/email-protection#553d3034273c3b327b313a363e3021153b27367b323a23"><span class="__cf_email__" data-cfemail="2149444053484f460f454e424a4455614f53420f464e57">[email protected]</span></a>, or by 
telephone at 301-415-1677, to (1) request a digital identification (ID) 
certificate, which allows the participant (or its counsel or 
representative) to digitally sign submissions and access the E-Filing 
system for any proceeding in which it is participating; and (2) advise 
the Secretary that the participant will be submitting a petition or 
other adjudicatory document (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals/getting-started.html. After a digital ID certificate is 
obtained and a docket created, the participant must submit adjudicatory 
documents in Portable Document Format (PDF). Guidance on submissions is 
available on the NRC's public website at https://www.nrc.gov/

[[Page 13777]]

site-help/electronic-sub-ref-mat.html. A filing is considered complete 
at the time the document is 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 email confirming receipt of the 
document. The E-Filing system also distributes an email that provides 
access to the document to the NRC's 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, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before adjudicatory documents are 
filed to obtain access to the documents via the E-Filing system.
    A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC's Electronic 
Filing Help Desk through the ``Contact Us'' link located on the NRC's 
public website at https://www.nrc.gov/site-help/e-submittals.html, by 
email to <a href="/cdn-cgi/l/email-protection#d598869d91fb87b0a6baa0a7b6b095bba7b6fbb2baa3"><span class="__cf_email__" data-cfemail="b3fee0fbf79de1d6c0dcc6c1d0d6f3ddc1d09dd4dcc5">[email protected]</span></a>, or by a toll-free call at 1-866-672-
7640. The NRC Electronic Filing Help Desk is available between 9 a.m. 
and 6 p.m., Eastern Time, Monday through Friday, excluding government 
holidays.
    Participants who believe that they have 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 
stating why there is good cause for not filing electronically and 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted in accordance with 10 CFR 
2.302(b)-(d). Participants filing adjudicatory documents in this manner 
are responsible for serving their documents on all other participants. 
Participants granted an exemption under 10 CFR 2.302(g)(2) must still 
meet the electronic formatting requirement in 10 CFR 2.302(g)(1), 
unless the participant also seeks and is granted an exemption from 10 
CFR 2.302(g)(1).
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's electronic hearing docket, which is publicly available at https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the 
presiding officer. Participants who do not have an NRC-issued digital 
ID certificate as described above may click ``cancel'' when the link 
requests certificates and they will be automatically directed to the 
NRC's electronic hearing dockets where they will be able to access any 
publicly available documents in a particular hearing docket. 
Participants are requested not to include personal privacy information 
such as social security numbers, home addresses, or personal 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 
should not include copyrighted materials in their submission.
    The Commission will issue a notice or order granting or denying a 
hearing request or intervention petition, designating the issues for 
any hearing that will be held and designating the Presiding Officer. A 
notice granting a hearing will be published in the Federal Register and 
served on the parties to the hearing.
    If a person other than Somat requests a hearing, that person shall 
set forth with particularity the manner in which his 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 hearings. 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 thirty (30) days from the 
date of this Confirmatory Order 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.

    Dated this 3rd day of March, 2022

    Attachments: As stated

    For the Nuclear Regulatory Commission.

Mohammed A. Shuaibi,
Deputy Regional Administrator, NRC Region III.

Michigan Facilities Leased and Operated by Somat Engineering, Inc. With 
Moisture Density Gauges

Somat Engineering, Inc.
Docket No. 030-29146
License No. 21-24685-01
Mr. Matthew Richardson, Radiation Safety Officer
26445 Northline Road, Taylor, MI 48180
4039 40th St. SE, Ste. 4, Grand Rapids, MI 49512

[FR Doc. 2022-05027 Filed 3-9-22; 8:45 am]
BILLING CODE 7590-01-P


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