[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Notices]
[Pages 11767-11772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5999]
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NUCLEAR REGULATORY COMMISSION
[ Docket No. 030-20836, License No. 25-21479-01, EA-08-271, NRC-2009-
0119]
In the Matter of Mattingly Testing Services, Inc., Molt, Montana:
Confirmatory Order Modifying License (Effective Immediately)
I
Mattingly Testing Services, Inc. (Mattingly or licensee) is the
holder of Materials License No. 25-21479-01
[[Page 11768]]
issued by the Nuclear Regulatory Commission (NRC or Commission)
pursuant to 10 CFR part 34, last amended on September 11, 2008, and due
to expire on February 28, 2016. The license authorizes Mattingly to
possess and use byproduct material for industrial radiographic
operations in NRC jurisdiction, and in areas of exclusive Federal
jurisdiction within Agreement States. Mattingly's main office is
located in Molt, Montana.
This Confirmatory Order is the result of an agreement reached
during an alternative dispute resolution (ADR) mediation session
conducted on February 5, 2009, at the NRC Region IV offices in
Arlington, Texas.
II
On November 5, 2007, the NRC Office of Investigations (OI) began an
investigation (OI Case No. 4-2008-009) into Mattingly's activities.
Based on the evidence developed during its investigation and associated
inspection, nine apparent violations were identified. In addition, the
NRC was concerned that willfulness may have been associated with five
of those apparent violations. The results of the investigation and
inspection, completed on November 19, 2008, were sent to Mattingly in a
letter dated December 15, 2008. In response to NRC's December 15, 2008,
letter, Mattingly requested ADR to resolve these issues.
On February 5, 2009, the NRC and Mattingly met in an ADR session
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 on resolving any differences regarding
the dispute. This confirmatory order is issued pursuant to the
agreement reached during the ADR process.
III
During the February 5, 2009, 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 ADR process, the following are the terms and conditions
agreed upon in principle by Mattingly and the NRC relating to
Inspection Report No. 030-20836/2007-003 issued by the NRC to Mattingly
on December 15, 2008.
Whereas, NRC's inspection and investigation conducted between
November 5, 2007, and November 19, 2008, identified nine apparent
violations of NRC requirements;
Whereas, the nine apparent violations involved were:
(1) The failure to provide complete and accurate information to the
Commission;
(2) A radiographer's assistant performing radiographic operations
without wearing a personnel dosimeter;
(3) A radiographer's assistant using a radiographic exposure device
without being under the personal supervision of a radiographer;
(4) The failure to secure a radiographic exposure device containing
radioactive material with a minimum of two independent physical
controls when the device was not under constant surveillance by the
licensee;
(5) The failure to remove from service a radiographic exposure
device after it had sustained damage to the locking mechanism and no
longer operated correctly;
(6) The failure to notify NRC within 24 hours after the discovery
of an event involving damage to the locking mechanism of a radiographic
exposure device;
(7) Permitting an individual to act as a radiographer's assistant
without completion of a practical examination on the use of
radiographic equipment;
(8) Using pocket dosimeters during radiographic operations that had
not been checked for correct response to radiation every 12 months as
required; and,
(9) The failure to have a functional alarm system to allow the
licensee to monitor, detect, assess, and respond to unauthorized access
to radioactive material when left unattended in a portable darkroom;
Whereas, NRC acknowledges the extensive corrective actions
Mattingly has already implemented associated with the apparent
violations, which include:
(1) Hiring three new office employees to assume various management
duties;
(2) Implementing an electronic document storage system;
(3) Reviewing current practical exam records for accuracy;
(4) RSO and assistant RSO performing quality reviews of paperwork;
(5) RSO and assistant RSO performing unannounced inspections at
jobsites;
(6) Requiring self and peer-checking for proper dosimetry;
(7) Requiring radiographer or assistant remain with the truck when
the radiographic exposure device is within;
(8) Requiring regular truck inspections and alarm testing;
(9) Implementing a safety checklist;
(10) Preparing notification forms to help ensure NRC notifications
are made;
(11) Purchasing additional dosimetry devices;
(12) Requiring practical exams to take place within Mattingly's
shop;
(13) Improving the Mattingly continuing education program;
(14) Sending assistant RSO to the Radiation Safety Academy;
(15) Establishing a company library and encouraging self-study;
(16) Submitting a license amendment request to replace the current
RSO; and
(17) Implementing a tracking system for dosimetry calibration;
Whereas, during a subsequent inspection in June 2008, the NRC
reviewed the effectiveness of these actions and found no safety-
significant violations;
Whereas, the NRC is concerned that willfulness may be associated
with apparent violations 1, 3, 5, 7, and 8 above;
Whereas, Mattingly agrees that apparent violations 2, 4, 6, 8, and
9 did occur, but denies any willfulness was involved;
Whereas, Mattingly denies that apparent violations 1, 3, 5, and 7
occurred and denies that any willfulness was involved;
Whereas, NRC and Mattingly disagree on the number of violations
that occurred and whether willfulness was involved;
Whereas, these terms and conditions shall not be binding on either
party until memorialized in a confirmatory order issued by the NRC to
Mattingly relating to this matter;
Therefore, the parties agree to the following terms and conditions:
1. Mattingly shall contract with an independent consultant to
evaluate the effectiveness of its radiation safety and compliance
programs.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to review and evaluate Mattingly's radiation
safety program and compliance program.
(2) Within 30 days of NRC approval of the consultant, the
consultant will commence an assessment of Mattingly's radiation safety
program.
(3) The consultant shall review Mattingly's training program and
provide recommendations for improvement.
(4) The consultant shall review Mattingly's Operating and Emergency
Procedures and provide recommendations for improvement.
(5) Within 30 days following completion of his reviews, the
consultant will provide Mattingly a report discussing its findings and
[[Page 11769]]
recommendations for program improvements. At the same time the
consultant provides its report to Mattingly, the consultant will send a
copy to the Director, Division of Nuclear Materials Safety, U.S. NRC
Region IV.
(6) Within 30 days of receiving the consultant's report, Mattingly
will provide the NRC, in writing, its position on how it will address
the consultant's findings. In its correspondence to the NRC, Mattingly
will identify which of the consultant's recommendations it will
implement and the time frame in which it will implement the
recommendations. For those recommendations Mattingly does not accept,
Mattingly will provide the NRC with its justification.
(7) Within 60 days of receiving the consultant's report, Mattingly
shall submit a license amendment request incorporating updated
procedures based on Mattingly's implementation of the consultant's
recommendations.
(8) The consultant shall perform an annual audit of Mattingly's
radiation safety program through calendar year 2012, starting with an
audit of calendar year 2009 (this will result in 4 annual audits). This
audit shall be performed in accordance with the suggested audit format
in NUREG 1556, Volume 2, ``Program-Specific Guidance About Industrial
Radiography Licenses,'' Appendix I.
The consultant will send a copy of his annual audit results to the
Director, Division of Nuclear Materials Safety, U.S. NRC Region IV.
(9) The consultant shall perform field audits of the performance of
radiography at temporary jobsites, and these field audits shall be
performed in accordance with NUREG 1556, Volume 2, Appendix H. The
field audits shall be unannounced and the auditor shall observe
Mattingly radiographers actually performing radiographic operations.
The auditor must make these observations in a manner such that the
radiographers are unaware of his presence. After observing the
radiographers perform work, the auditor may announce himself to the
radiographers in order to continue the audit. These audits shall be
conducted at least every six months through calendar year 2012,
beginning within 30 days of NRC approval of the consultant. The
consultant shall provide NRC with a copy of these audits within one
week after the audit is completed.
2. Mattingly shall contract with an independent consultant to
provide training.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to provide training;
(2) Within 30 days of NRC approval of the consultant, the
consultant will provide training to the licensee's personnel who engage
in licensed activities. The training shall include:
(1) A review of radiation mishaps involving radiography devices or
gauges;
(2) A review of the consequences of and the potential actions that
NRC may take against an individual for deliberate violations of NRC
requirements;
(3) A review of NRC requirements and Mattingly's license
conditions;
(4) A review of Mattingly's Operating and Emergency Procedures;
(5) Lessons learned from the circumstances surrounding each of the
violations and apparent violations identified by the NRC in its
December 15, 2008, letter;
(6) Reporting requirements of 10 CFR 30.50 and 10 CFR 34.101; and
(7) NRC's employee protection requirements contained in 10 CFR
30.7.
3. Mattingly may, during the effective period of this order, choose
to change consultants to fulfill the requirements above after Mattingly
submits the name(s) and qualifications of the new independent
consultant(s) and receives NRC approval for the change.
4. Within 30 days of the date of this order, Mattingly shall submit
a license amendment request incorporating updated procedures which:
(a) Require a radiographer or assistant must remain with the
radiographic exposure device unless the device is properly secured in
the truck or an approved storage location;
(b) Require the truck alarm system must be tested immediately prior
to leaving the truck unattended if the truck is serving as secure
storage for the radiographic exposure device;
(c) Include a pre-job safety checklist assuring:
(1) The radiographer and assistant check each other to assure each
is wearing properly calibrated, tested, and functioning dosimetry as
required;
(2) Radiographers must have, on their person, their certification
card while at a job site;
(d) Require the RSO or his assistant to review each document
required by NRC regulations for accuracy and completeness within 10
days of creation of said document, indicating such review by initialing
and dating the document;
(e) Require the RSO or his assistant to review all training
records, exams, and certifications of each employee and sign a
statement that the person is authorized to work with licensed material
prior to the person functioning in the position of a radiographer or
radiographer's assistant;
(f) Provide additional guidance on the reporting requirements
contained in 10 CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a radiographic exposure device is
considered damaged such that it must not be used; and
(h) Provide employees with a policy statement regarding the
requirements of 10 CFR 30.7.
5. Within 30 days from the date of this order, Mattingly will
develop and implement a disciplinary program with a graded approach for
infractions. This disciplinary program will consider minor infractions
up to willful failures to follow the regulations. The disciplinary
program will emphasize individual responsibility for radiation safety
and radioactive material security, and will encourage reporting safety
and security concerns.
6. In consideration of the above actions on the part of Mattingly,
NRC agrees to limit the civil penalty amount in this enforcement action
to $8,000. Accordingly, within 1 year of the date of this order,
Mattingly shall pay the civil penalty in the amount of $8,000 in
accordance with NUREG/BR-0254 and submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
a statement indicating when and by what method payment was made.
7. The NRC agrees not to pursue any further enforcement action
against Mattingly in connection with the apparent violations identified
in the NRC's December 15, 2008 letter to Mattingly and will not count
this matter as previous enforcement for the purposes of assessing
potential future enforcement action in accordance with Section VI.C of
the Enforcement Policy.
8. The license which is the subject of this order is modified in
accordance with the requirements of the order. As such, in the event of
the transfer of the NRC license for Mattingly, by virtue of sale,
merger, bankruptcy, agreement or otherwise, the requirements of this
confirmatory order shall survive any such transfer and shall be binding
on the new license holder.
On March 5, 2009, 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
[[Page 11770]]
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
the Licensee's commitments be confirmed by this Order. Based on the
above and the Licensee'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 34, it is hereby ordered,
effective immediately, that license no. 25-21479-01 is modified as
follows:
1. Mattingly shall contract with an independent consultant to
evaluate the effectiveness of its radiation safety and compliance
programs.
(1) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to review and evaluate Mattingly's radiation
safety program and compliance program.
(2) Within 30 days of NRC approval of the consultant, the
consultant will commence an assessment of Mattingly's radiation safety
program.
(3) The consultant shall review Mattingly's training program and
provide recommendations for improvement.
(4) The consultant shall review Mattingly's Operating and Emergency
Procedures and provide recommendations for improvement.
(5) Within 30 days following completion of his reviews, the
consultant will provide Mattingly a report discussing its findings and
recommendations for program improvements. At the same time the
consultant provides its report to Mattingly, the consultant will send a
copy to the Director, Division of Nuclear Materials Safety, U.S. NRC
Region IV.
(6) Within 30 days of receiving the consultant's report, Mattingly
will provide the NRC, in writing, its position on how it will address
the consultant's findings. In its correspondence to the NRC, Mattingly
will identify which of the consultant's recommendations it will
implement and the timeframe in which it will implement the
recommendations. For those recommendations Mattingly does not accept,
Mattingly will provide the NRC with its justification.
(7) Within 60 days of receiving the consultant's report, Mattingly
shall submit a license amendment request incorporating updated
procedures based on Mattingly's implementation of the consultant's
recommendations.
(8) The consultant shall perform an annual audit of Mattingly's
radiation safety program through calendar year 2012, starting with an
audit of calendar year 2009 (this will result in 4 annual audits). This
audit shall be performed in accordance with the suggested audit format
in NUREG 1556, Volume 2 ``Program-Specific Guidance About Industrial
Radiography Licenses,'' Appendix I. The consultant will send a copy of
his annual audit results to the Director, Division of Nuclear Materials
Safety, U.S. NRC Region IV.
(9) The consultant shall perform field audits of the performance of
radiography at temporary jobsites, and these field audits should be
performed in accordance with NUREG 1556, Volume 2, Appendix H. The
field audits shall be unannounced and the auditor shall observe
Mattingly radiographers actually performing radiographic operations.
The auditor must make these observations in a manner such that the
radiographers are unaware of his presence. After observing the
radiographers perform work, the auditor may announce himself to the
radiographers in order to continue the audit. These audits shall be
conducted at least every 6 months through calendar year 2012, beginning
within 30 days of NRC approval of the consultant. The consultant shall
provide NRC with a copy of these audits within one week after the audit
is completed.
2. Mattingly shall contract with an independent consultant to
provide training.
(a) Within 60 days of the date of this Order, Mattingly will submit
to the NRC for approval, the name(s) and qualifications of an
independent consultant(s) to provide training;
(b) Within 30 days of NRC approval of the consultant, the
consultant will provide training to the licensee's personnel who engage
in licensed activities. The training shall include:
(1) A review of radiation mishaps involving radiography devices or
gauges;
(2) A review of the consequences of and the potential actions that
NRC may take against an individual for deliberate violations of NRC
requirements;
(3) A review of NRC requirements and Mattingly's license
conditions;
(4) A review of Mattingly's Operating and Emergency Procedures;
(5) Lessons learned from the circumstances surrounding each of the
violations and apparent violations identified by the NRC in its
December 15, 2008, letter;
(6) Reporting requirements of 10 CFR 30.50 and 10 CFR 34.101; and
(7) NRC's employee protection requirements contained in 10 CFR
30.7.
3. Mattingly may, during the effective period of this order, choose
to change consultants to fulfill the requirements above after Mattingly
submits the name(s) and qualifications of the new independent
consultant(s) and receives NRC approval for the change.
4. Within 30 days of the date of this order, Mattingly shall submit
a license amendment request incorporating updated procedures which:
(a) Require a radiographer or assistant must remain with the
radiographic exposure device unless the device is properly secured in
the truck or an approved storage location;
(b) Require the truck alarm system must be tested immediately prior
to leaving the truck unattended if the truck is serving as secure
storage for the radiographic exposure device;
(c) Include a pre-job safety checklist assuring:
(1) The radiographer and assistant check each other to assure each
is wearing properly calibrated, tested, and functioning dosimetry as
required;
(2) Radiographers must have, on their person, their certification
card while at a job site;
(d) Require the RSO or his assistant to review each document
required by NRC regulations for accuracy and completeness within 10
days of creation of said document, indicating such review by initialing
and dating the document;
(e) Require the RSO or his assistant to review all training
records, exams, and certifications of each employee and sign a
statement that the person is authorized to work with licensed material
prior to the person functioning in the position of a radiographer or
radiographer's assistant;
(f) Provide additional guidance on the reporting requirements
contained in 10 CFR 30.50 and 10 CFR 34.101;
(g) Provide guidance on when a radiographic exposure device is
considered damaged such that it must not be used; and
(h) Provide employees with a policy statement regarding the
requirements of 10 CFR 30.7.
5. Within 30 days from the date of this order, Mattingly will
develop and implement a disciplinary program with
[[Page 11771]]
a graded approach for infractions. This disciplinary program will
consider minor infractions up to willful failures to follow the
regulations. The disciplinary program will emphasize individual
responsibility for radiation safety and radioactive material security,
and will encourage reporting safety and security concerns.
6. In consideration of the above actions on the part of Mattingly,
NRC agrees to limit the civil penalty amount in this enforcement action
to $8,000. Accordingly, within 1 year of the date of this order,
Mattingly shall pay the civil penalty in the amount of $8,000 in
accordance with NUREG/BR-0254 and submit to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
a statement indicating when and by what method payment was made.
7. The license which is the subject of this order is modified in
accordance with the requirements of the order. As such, in the event of
the transfer of the NRC license for Mattingly, by virtue of sale,
merger, bankruptcy, agreement or otherwise, the requirements of this
confirmatory order shall survive any such transfer and shall be binding
on the new license holder.
The Regional Administrator, Region IV, 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 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 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 49139
(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 (5) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
[email protected], 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 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 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 technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The electronic filing Help Desk can be contacted
by telephone at 1-866-672-7640 or by e-mail at [email protected].
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 Mattingly 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 of this Order
[[Page 11772]]
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 nuclear regulatory commission.
Dated this 6th day of March 2009.
Elmo E. Collins,
Regional Administrator.
[FR Doc. E9-5999 Filed 3-18-09; 8:45 am]
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