[Federal Register Volume 69, Number 56 (Tuesday, March 23, 2004)]
[Notices]
[Pages 13594-13596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-6423]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-07710, License No. 50-14102-01, EA-03-126]


In the Matter of State of Alaska Department of Transportation & 
Public Facilities, Anchorage, AK Confirmatory Order Modifying License, 
(Effective Immediately)

I

    The State of Alaska Department of Transportation & Public 
Facilities (ADOT&PF or Licensee) is the holder of NRC License No. 50-
14102-01 issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR Part 30. The license authorizes ADOT&PF 
to possess and use certain licensed material in portable gauging 
devices that have been registered either with the NRC or with an 
Agreement State and have been distributed in accordance with an NRC or 
Agreement State specific license. The license was most recently amended 
on February 4, 2004, and is due to expire on November 30, 2011.

II

    On January 3, 2002, the NRC's Office of Investigations (OI) started 
an investigation of ADOT&PF to determine if ADOT&PF's Statewide 
Radiation Safety Officer (SRSO) was the subject of discrimination for 
raising safety and compliance concerns. In OI Report No. 4-2002-001, OI 
concluded that the SRSO was the subject of discrimination. By letter 
dated July 17, 2003, the NRC identified to ADOT&PF an apparent 
violation of employee protection requirements (10 CFR 30.7) and the 
supporting bases for the NRC's concern. A predecisional enforcement 
conference was conducted with ADOT&PF on November 18-19, 2003. During 
the conference, ADOT&PF denied that any discrimination occurred and 
asserted that no violation of 10 CFR 30.7 occurred.
    After considering the information from the investigation and the 
information ADOT&PF presented during the conference, the NRC has 
concluded that a violation of 10 CFR 30.7 occurred. Specifically, the 
NRC has concluded that ADOT&PF discriminated against its SRSO for 
engaging in protected activities as documented in a Notice of Violation 
issued to ADOT&PF on this date. Further, the NRC is concerned that 
ADOT&PF's Safety Conscious Work Environment \1\ has deficiencies, and 
that

[[Page 13595]]

ADOT&PF's actions to date have not been adequate to address these 
deficiencies.
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    \1\ NRC defines Safety Conscious Work Environment as a work 
environment in which employees feel free to raise safety and 
compliance concerns to its employer or to the NRC without fear of 
retaliation. The NRC issued a Policy Statement for Nuclear Employees 
Raising Safety Concerns Without Fear of Retaliation on May 14, 1996 
[61 FR 24336].
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    By letters dated February 18 and March 4, 2004, ADOT&PF reiterated 
its position that discrimination did not occur. Notwithstanding 
ADOT&PF's disagreement with the NRC's conclusions, ADOT&PF has agreed 
to address its compliance with NRC's Employee Protection regulations 
(i.e., 10 CFR 30.7) and the NRC's concerns about ADOT&PF's Safety 
Conscious Work Environment.

III

    By letter dated March 4, 2004, ADOT&PF has agreed to take actions 
to ensure compliance with 10 CFR 30.7 and to ensure it has established 
and will maintain a Safety Conscious Work Environment. The agreed-upon 
actions noted in Section IV of this Confirmatory Order focus on (1) 
ensuring that ADOT&PF's internal policies and procedures establish and 
will support a Safety Conscious Work Environment by providing for a 
review of these policies and procedures by individuals who are 
independent of ADOT&PF and who have subject-matter expertise; (2) 
developing a plan to conduct training of ADOT&PF employees and their 
supervisors and managers on NRC's Employee Protection regulations and 
on establishing a Safety Conscious Work Environment; and (3) developing 
a long-term plan for maintaining a Safety Conscious Work Environment 
that includes culture surveys and annual refresher training.
    On March 4, 2004, ADOT&PF consented to issuing this Confirmatory 
Order with the commitments as described in Section IV below. ADOT&PF 
further agreed in its March 4, 2004 letter that this Confirmatory Order 
is to be effective upon issuance and that it has waived its right to a 
hearing on this Confirmatory Order. The NRC has concluded that its 
concerns can be resolved through effective implementation of ADOT&PF's 
commitments.
    I find that ADOT&PF's commitments as set forth in Section IV are 
acceptable and necessary, and I conclude that with these commitments 
the public health and safety are reasonably assured. In view of the 
foregoing, I have determined that the public health and safety require 
that ADOT&PF's commitments be confirmed by this Order. Based on the 
above and Licensee's consent, this Order is immediately effective upon 
issuance.

IV

    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, that License No. 50-14102-01 is modified as 
follows:
    1. Within seventy-five (75) days from the date of this Confirmatory 
Order, ADOT&PF shall submit for NRC approval a plan to review ADOT&PF's 
internal policies and procedures pertaining to assuring compliance with 
NRC employee protection requirements (reference 10 CFR 30.7) and to 
establishing and maintaining a Safety Conscious Work Environment 
(reference ``Freedom of Employees in the Nuclear Industry to Raise 
Safety Concerns Without Fear of Retaliation,'' May 14, 1996 [61 FR 
24336]). ADOT&PF shall complete the review within sixty (60) days from 
the date of NRC's approval of the plan.
    (A) The plan shall include a discussion of the individual(s) who 
shall conduct the reviews. This discussion shall demonstrate that the 
individual(s) whom ADOT&PF selected have the expertise and capability 
to effectively conduct the reviews. The individuals shall meet the 
following criteria: (1) at least one individual shall have expertise in 
or prior experience in developing programs to assure compliance with 
NRC's Employee Protection regulations (e.g., 10 CFR 30.7, 40.7, or 
50.7); (2) the individual(s) shall be knowledgeable regarding the 
Commission's May 1996 Policy Statement on the ``Freedom of Employees in 
the Nuclear Industry to Raise Safety Concerns Without Fear of 
Retaliation'' [61 FR 24336]; (3) the individual(s) shall be independent 
of ADOT&PF; and (4) the individual(s) shall have expertise in the 
attributes of a Safety Conscious Work Environment as demonstrated by 
experience in evaluating or developing internal policies/procedures 
regarding a Safety Conscious Work Environment.
    (B) The individual(s) above shall review and determine the adequacy 
of all ADOT&PF's policies and procedures regarding Safety Conscious 
Work Environment, including how ADOT&PF evaluates and resolves safety 
concerns while balancing other daily (production) duties. For any 
inadequacies that are identified, the individual(s) shall provide 
ADOT&PF with written recommendations.
    2. Within seventy-five (75) days from the date of this Confirmatory 
Order, ADOT&PF shall submit for NRC approval a plan to conduct initial 
training on the NRC's Employee Protection regulations and the 
attributes of a Safety Conscious Work Environment. The training shall 
commence within ninety (90) days from the date of NRC's approval of the 
plan, and the training shall be completed within ninety (90) days of 
commencing. The plan shall specify which ADOT&PF workers, supervisors 
and managers shall receive the training, and shall include provisions 
for individuals who miss the training due to unforeseen circumstances 
such as illness. At a minimum, the training shall be provided to 
workers involved in the use of licensed material and the radiation 
safety program, as well as the supervisors and managers of these 
individuals.
    (A) The plan shall include a discussion of the individual(s) who 
shall conduct the training. This discussion shall demonstrate that the 
individual(s) selected by ADOT&PF have the expertise and capability to 
effectively conduct the training. The individuals shall meet the 
criteria specified in item 1.(A) above. The plan shall include a 
listing of training courses conducted by the individual(s) on NRC's 
Employee Protection regulations and on the topic of Safety Conscious 
Work Environment.
    (B) ADOT&PF's plan shall include a description of the topics to be 
covered in the training course. The training shall include discussions 
of: (1) 10 CFR 30.7, including a discussion of protected activities and 
adverse actions; (2) applicable federal and state laws pertaining to 
whistleblower protection; (3) enforcement actions that may be taken 
against licensees and individuals who violate these requirements; (4) 
the content of this Confirmatory Order; (5) establishing a Safety 
Conscious Work Environment; (6) the roles and responsibilities of the 
statewide and regional radiation safety officers in assuring compliance 
with NRC radiation safety requirements; and (7) what constitutes a 
hostile work environment and a ``chilling effect.''
    (C) The plan shall include additional training to supervisors and 
managers on how to effectively evaluate and resolve safety concerns, 
while balancing safety concerns with other daily activities, especially 
when dealing with conflicts in the work place. This training shall also 
discuss the specific responsibilities and obligations of supervisors 
and managers under NRC's Employee

[[Page 13596]]

Protection regulations and ADOT&PF's internal policies and procedures.
    3. Within 60 days of completing the review required by Condition 1 
above, ADOT&PF shall submit for NRC approval a long-term plan for 
maintaining a Safety Conscious Work Environment. The plan shall include 
a discussion of the results of the review required by Condition 1 
above, including a discussion of recommendations made by the 
individual(s) and ADOT&PF's plan and schedule for addressing the 
recommendations. The long-term plan shall describe a procedure for 
evaluating and approving future changes to the plan. The long-term plan 
shall, at a minimum, address a time period through calendar year 2005. 
The plan shall include the following elements.
    (A) ADOT&PF shall perform an employee cultural survey which is 
developed by a consultant or entity that is independent of ADOT&PF. The 
long-term plan shall specify which ADOT&PF workers, supervisors and 
managers shall be included in the survey. At a minimum, the survey 
instrument (i.e., questionnaire) shall be made available to workers, 
including temporary workers, involved in the use of licensed material 
and the radiation safety program, as well as the supervisors and 
managers of these individuals. At a minimum, this survey shall be 
performed in calendar years 2004 and 2005. ADOT&PF shall provide the 
NRC with annual reports for the years 2004 and 2005 summarizing the 
findings of the cultural survey, including the questions used, the 
methodology applied, and any follow-up actions. The survey shall be 
conducted such that the individual employee responses shall be kept 
confidential from management.
    (B) ADOT&PF shall conduct annual refresher training of workers, 
including temporary workers, involved in the use of licensed material 
and the radiation safety program, as well as the supervisors and 
managers of these individuals. The long-term plan shall specify which 
ADOT&PF workers, supervisors and managers shall receive refresher 
training. No additional training in calendar year 2004 is needed beyond 
that required by Condition 2 above. Subsequent annual refresher 
training shall include a discussion of the NRC Employee Protection 
regulations and other applicable federal and state laws pertaining to 
whistleblower protection, ADOT&PF's policies and procedures for 
maintaining a Safety Conscious Work Environment, and the roles and 
responsibilities of the statewide and regional radiation safety 
officers in assuring compliance with NRC radiation safety requirements.
    (C) The refresher training conducted in calendar year 2005 shall be 
conducted by individual(s) independent of ADOT&PF who meet Condition 
1.(A) above. ADOT&PF's plan shall specify the minimum qualifications 
for individuals (including ADOT&PF personnel) who may provide Safety 
Conscious Work Environment training in subsequent years.
    (D) ADOT&PF shall request an amendment to its license to require 
that its long-term plan for maintaining a Safety Conscious Work 
Environment be maintained and implemented. The license amendment 
request shall be submitted concurrent with submitting the long-term 
plan.
    The Director, Office of Enforcement may relax or rescind, in 
writing, any of the above conditions upon a showing by ADOT&PF of good 
cause.

V

    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 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. Any request for a hearing 
shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 
20555. Copies also shall be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, to the Regional Administrator, NRC 
Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, and 
to the Licensee. Because of continuing disruptions in delivery of mail 
to United States Government offices, it is requested that requests for 
hearing be transmitted to the Secretary of the Commission either by 
means of facsimile transmission to (301) 415-1101 or by e-mail to 
hearingdocket@nrc.gov and also to the Office of the General Counsel 
either by means of facsimile transmission to (301) 415-3725 or by e-
mail to OGCMailCenter@nrc.gov. If a person other than the licensee 
requests a hearing, that person shall set forth with particularity the 
manner in which his interest is adversely affected by this Confirmatory 
Order and propose at least one admissible contention, addressing 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 IV above shall be final 20 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 IV 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 15th day of March, 2004.

    For the Nuclear Regulatory Commission.
Frank Congel,
Director, Office of Enforcement.
[FR Doc. 04-6423 Filed 3-22-04; 8:45 am]
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