[Federal Register Volume 65, Number 206 (Tuesday, October 24, 2000)]
[Notices]
[Pages 63632-63633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27284]
[[Page 63632]]
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NUCLEAR REGULATORY COMMISSION
[IA-00-008]
In the Matter of Don Nottingham; Order Prohibiting Involvement in
NRC Licensed Activities (Effective Immediately)
I
Mr. Don Nottingham served as a senior radiographer at NDT Services,
Inc. (NDTS) from 1994 through 1995. At the time, NDTS (Licensee) was
the holder of Materials License No. 52-19438-01 issued by the Nuclear
Regulatory Commission (NRC) pursuant to 10 CFR Part 30. The License
authorized possession and use of up to 100 curies of iridium-192 and 20
curies of cobalt-60 in sealed radiography sources. The License was
originally issued on August 21, 1980, and was due to expire on January
31, 2002. However, the License was suspended pursuant to an Order
Suspending License (Effective Immediately) that was issued on March 27,
1998, pending the results of an NRC Office of Investigations (OI)
investigation (see Section II). A subsequent Order Modifying License
(Effective Immediately) issued on January 15, 1999, required NDTS to
dispose of licensed material in its possession. The License was
terminated on October 16, 2000.
II
On August 26, 1997, an investigation by the NRC Office of
Investigations (OI) was initiated to determine whether NDTS, Inc.,
retaliated against several radiographers for raising concerns regarding
safety and training issues. The investigation also addressed numerous
other issues including: personnel training; dosimetry usage; conduct of
surveys; completion of survey records; the alleged performance of
radiography by assistant radiographers without direct observation; an
alleged 1995 event involving the inability to retract a radiography
source assembly to its fully shielded position (``a source disconnect
event''); and the alleged failure to report the 1995 event. The
investigation did not substantiate that discrimination occurred, but
identified numerous examples of NDTS's willful failure to comply with
NRC regulations, including the conduct of unsupervised radiography by
assistant radiographers.
The OI investigation determined that Mr. Nottingham, while serving
as a senior radiographer, permitted assistant radiographers to perform
unsupervised radiography. This is contrary to 10 CFR 34.46, which
provides that whenever a radiographer's assistant uses radiographic
exposure devices, associated equipment or sealed sources or conducts
radiation surveys to determine that the sealed source has returned to
the shielded position after an exposure, the assistant shall be under
the personal supervision of a radiographer. The personal supervision
must include the radiographer's physical presence at the site where the
sealed sources are being used; the availability of the radiographer to
give immediate assistance, if required; and the radiographer's direct
observation of the assistant's performance of the operations. Mr.
Nottingham was an experienced radiographer who had been tested on the
requirements of this regulation.
The OI investigation further determined that, in early 1995, the
Licensee experienced a source disconnect at the Phillips Puerto Rico
Core site. The source disconnect occurred when a 75-curie iridium-192
radiography source assembly failed to retract to its fully shielded
position due to improper handling by the assistant radiographer. The OI
investigation determined that the assistant radiographer had conducted
the radiographic operations without direct observation by a
radiographer, and that Mr. Nottingham had been responsible for
permitting the assistant radiographer to conduct radiographic
operations without direct observation, which contributed to the source
disconnect. OI was unable to interview Mr. Nottingham during the
investigation despite several attempts. Nonetheless, the conclusion
that the assistant performed radiography without direct observation of
a qualified radiographer is based on the corroborating statements of
multiple assistant radiographers to OI regarding the level of
supervision they received, as well as the testimony of another
radiographer. This radiographer stated that assistants were supervised;
but not constantly surveilled, i.e., directly observed. As stated
previously, 10 CFR 34.46(c) requires direct observation by a qualified
radiographer of an assistant's performance of operations. In addition,
Mr. Nottingham was an experience radiographer who had been tested on
the requirement of 10 CFR 34.46 relating to the conduct of radiographic
operations.
Based on these facts, the evidence developed by the investigation
indicated that Mr. Nottingham knew the requirement in 10 CFR 34.46(c)
regarding ``direct observation'' of the assistant's performance, and
allowed the assistant radiographer to perform radiography without such
direct observation of his performance. The evidence developed by the
investigation therefore indicated that Mr. Nottingham's failure to
comply with 10 CFR 34.46 was deliberate; and thus, constituted a
violation of 10 CFR 30.10, ``Deliberate Misconduct''. Specifically, 10
CFR 30.10 prohibits any employee of a licensee from deliberately
engaging in activities which cause a licensee to be in violation of any
rule, regulation, or order, or any term, condition or limitation of any
license.
A certified letter dated March 6, 2000, to Mr. Nottingham advised
that his actions appeared to constitute a violation of 10 CFR 30.10,
and he was requested to participate in a predecisional enforcement
conference to discuss the apparent violation. The certified mail return
receipt indicates that on March 16, 2000, this letter was received by
Ms. Evelyn Nottingham. To date, no response has been received from Mr.
Nottingham.
III
Based on the above, the NRC has concluded that Mr. Nottingham
engaged in deliberate misconduct when he permitted assistant
radiographers to conduct radiographic operations without his direct
supervision that caused the Licensee to be in violation of 10 CFR 34.46
and is, therefore a violation of 10 CFR 30.10. The NRC must be able to
rely on licensees and their employees to fully comply with NRC
requirements, including the requirement to adequately supervise
licensed activities performed by assistant radiographers.
In view of the foregoing, I lack the requisite reasonable assurance
that licensed activities can be conducted in compliance with NRC
requirements and that the health and safety of the public will be
protected if Mr. Nottingham were permitted to be involved in NRC-
licensed activities at this time. Therefore, the public health, safety
and interest require that Mr. Nottingham be prohibited from any
involvement in NRC-licensed activities for a period of one year from
the date of this Order. Additionally, Mr. Nottingham is required to
notify the NRC of his first employment in NRC-licensed activities
following the prohibition period and all subsequent employment in NRC-
licensed activities for five years following the prohibition period.
Furthermore, pursuant to 10 CFR 2.202, I find that the significance of
Mr. Nottingham's conduct is such that the public health, safety and
interest require that this Order be immediately effective.
[[Page 63633]]
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, 10 CFR 30.10 and 10 CFR 34.46, it is
hereby ordered, effective immediately, that:
1. Mr. Don Nottingham is prohibited for one year from the date of
this Order from engaging in NRC-licensed activities. NRC-licensed
activities are those activities that are conducted pursuant to a
specific or general license issued by the NRC, including, but not
limited to, those activities of Agreement State licensees conducted
pursuant to the authority granted by 10 CFR 150.20.
2. If Mr. Nottingham is currently performing licensed activities
for another licensee in an area of NRC jurisdiction, he must
immediately cease those activities, and inform the NRC of the name,
address and telephone number of the employer, and provide a copy of
this Order to the employer.
3. For a period of five years after the one year prohibition has
expired, Mr. Don Nottingham shall within 20 days of his acceptance of
subsequent employment offers involving NRC-licensed activities or his
becoming involved in NRC-licensed activities, as defined in Paragraph
IV.1 above, provide notice of his employment to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
including the name, address, and telephone number of the employer or
the entity where he is, or will be, involved in the NRC-licensed
activities. In the first notification, Mr. Don Nottingham shall include
a statement of his commitment to compliance with regulatory
requirements and a statement regarding why the Commission should have
confidence that he will now comply with applicable NRC requirements.
The Director, Office of Enforcement, U.S. Nuclear Regulatory
Commission may relax or rescind, in writing, any of the above
conditions upon a showing by Mr. Don Nottingham of good cause.
V
In accordance with 10 CFR 2.202, Mr. Nottingham must, and any
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, 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, D.C. 20555, and include
a statement of good cause for the extension. The answer may consent to
this Order. Unless the answer consents to this Order, the answer shall,
in writing and under oath or affirmation, specifically admit or deny
each allegation or charge made in this Order and shall set forth the
matters of fact and law on which Mr. Nottingham or other persons
adversely affected relies and the reasons as to why the Order should
not have been issued. Any answer or request for a hearing shall be
submitted to the Secretary, U.S. Nuclear Regulatory Commission, ATTN:
Chief, Rulemakings and Adjudications Staff, Washington, D.C. 20555.
Copies also shall be sent to the Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission, Washington, D.C. 20555, to the Deputy
Assistant General Counsel for Materials Litigation and Enforcement at
the same address, and to the Regional Administrator, NRC Region II,
Atlanta Federal Center, 61 Forsyth Street, S.W., Suite 23T85, Atlanta,
Georgia 30303-3415 and to Mr. Nottingham if the answer or hearing
request is by a person other than Mr. Nottingham. If a person other
than Mr. Nottingham 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 2.714(d).
If a hearing is requested by Mr. Nottingham or 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 Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Nottingham, may, in addition
to demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediately effectiveness of the
Order on the ground that the Order, including the need for immediately
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
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 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. An answer or a request for
hearing shall not stay the immediate effectiveness of this order.
Dated this 17th day of October 2000.
For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research, and State Programs.
[FR Doc. 00-27284 Filed 10-23-00; 8:45 am]
BILLING CODE 7590-01-U