[Federal Register Volume 65, Number 206 (Tuesday, October 24, 2000)]
[Notices]
[Pages 63633-63635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27287]


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NUCLEAR REGULATORY COMMISSION

[IA-00-007]


In the Matter of Johnny Lee Rochelle; Order Prohibiting 
Involvement in NRC Licensed Activities (Effective Immediately)

I

    Mr. Johnny Lee Rochelle was employed at NDT Services, Inc. (NDTS) 
as a senior radiographer from 1994 through 1998. 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

    An investigation by the NRC Office of Investigations (OI) was 
initiated on August 26, 1997, 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 incident 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 incident. The 
investigation did not substantiate that

[[Page 63634]]

discrimination occurred, but identified numerous examples of the 
willful failure to comply with NRC regulations, including the conduct 
of radiographic operations by assistant radiographers without direct 
observation of a qualified radiographer.
    10 CFR 34.46, 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. Contrary to this requirement, on 
numerous occasions between 1994 and 1998, the OI investigation 
determined that Mr. Rochelle permitted assistant radiographers to 
conduct radiographic operations without the direct supervision of a 
qualified radiographer. The conclusion that assistants performed 
unsupervised radiography is based on corroborating statements from 
multiple assistant radiographers regarding the level of supervision 
they received, as well as Mr. Rochelle's testimony to OI. Mr. Rochelle 
stated to OI that assistants were supervised; however, they were not 
constantly surveilled, i.e., observed. As stated previously, 10 CFR 
34.46(c) requires direct observation by a qualified radiographer of an 
assistant's performance of operations. Mr. Rochelle was a knowledgeable 
and experienced radiographer who had been personally tested and tested 
others on the requirements of 10 CFR 34.46.
    Based on these facts, the evidence developed by OI indicated that 
Mr. Rochelle's failure to comply with 10 CFR 34.46 appeared to have 
been deliberate, and thus, constituted a violation of 10 CFR 30.10, 
``Deliberate Misconduct.'' 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.
    In addition, on February 6, 1998, an inspection was conducted of 
the Licensee's activities at the Puerto Rico Electric Power Authority's 
Costa Sur Power Station, Guayanilla, Puerto Rico. During the 
inspection, the inspector observed Mr. Rochelle performing radiographic 
operations and identified the following violations: (1) The creation of 
radiation levels in unrestricted areas in excess of the requirements in 
10 CFR part 20.1301; (2) the failure to survey and monitor areas 
surrounding the location where radiographic operations were being 
conducted as required by Condition 21, and Item 6.3.1 of the 
Application; (3) the failure to post radiation areas as required by 10 
CFR 20.1902(a); and (4) the failure to control access to areas that 
were required to be restricted as required in License Condition 21, and 
Item 6.3.1 of the Application. 10 CFR 20.1301 requires each licensee to 
conduct operations so that the dose in any unrestricted area from 
external sources does not exceed two millirems in any one hour. 10 CFR 
20.1902(a) requires that the Licensee post each radiation area with a 
conspicuous sign or signs bearing the radiation symbol and the words 
``CAUTION, RADIATION AREA.'' Condition No. 21 of License No. 52-19438-
01 required, in part, that the Licensee conduct its licensed radiation 
safety program in accordance with the statements, representations and 
procedures contained in the License application dated October 25, 1991. 
Section 6.3.1 of the application dated October 25, 1991, required that 
frequent surveys and continuous monitoring be made at all areas where a 
source is being exposed. In addition, Section 6.1.1 of the application 
dated October 25, 1991, stated, in part that, ``A restricted area is 
that area into which the radiographer must control access for the 
purpose of radiation safety. This restriction must be extended to 
include those areas containing radiation levels such that a person 
continuously present in the area could receive an exposure in excess of 
2 millirem in any one hour.''
    During the inspection, the inspector measured radiation levels in 
an unrestricted area in excess of two millirem in one hour 
(approximately 22 millirem in one hour) on Level 6 of the facility as a 
result of radiography being conducted by Mr. Rochelle, contrary to the 
requirements of 10 CFR 20.1301. The area was not posted as a Radiation 
Area as required by 10 CFR 20.1902(a) nor controlled for access as 
required by the License. Immediately following the radiographic 
exposure, the inspector advised Mr. Rochelle of the violations, the 
applicable License requirements, the need for surveys and continuous 
monitoring, and the correct methodology for conducting the activities. 
Notwithstanding this notification, Mr. Rochelle immediately conducted 
another radiographic exposure. During this exposure, the inspector 
observed that neither Mr. Rochelle nor the assistant radiographer were 
performing surveys or monitoring as required by the License. 
Independent surveys performed by the inspector identified an 
unrestricted area on Level 9 of the facility with radiation levels in 
excess of two millirem in one hour (approximately 6 millirem in one 
hour), contrary to the requirements of 10 CFR 20.1301. In addition, 
this area was not posted as a Radiation Area in accordance with 10 CFR 
20.1902(a). Upon being advised of the excess radiation levels on Level 
9, Mr. Rochelle confirmed the measurements obtained by the inspector; 
however, he failed to take action to post or control access to the area 
through the remainder of the radiographic exposure.
    Based on the above facts, the NRC has determined that Mr. 
Rochelle's failures to comply with 10 CFR 20.1301, 10 CFR 20.1902(a), 
and Items 6.3.1 and 6.1.1 of the License application dated October 25, 
1991, during the second radiographic exposure observed by the inspector 
on February 6, 1998, appeared to have been deliberate, and thus, 
constitute additional violations of 10 CFR 30.10. This determination 
was based on the fact, that following the first radiographic exposure 
when an excessive radiation level was identified, Mr. Rochelle was put 
on notice of the requirements governing radiographic operations by the 
inspector, yet continued to act in violation of NRC requirements 
(failed to take action to comply).
    On March 6, 2000, the NRC sent a letter to Mr. Rochelle advising 
him that five apparent violations had been identified involving him, 
and that his actions appeared to be in violation of 10 CFR 30.10, 
``Deliberate Misconduct.'' The letter offered Mr. Rochelle the 
opportunity to either attend a predecisional enforcement conference or 
respond to the violations in writing. In a letter received by the NRC 
on April 11, 2000, Mr. Rochelle responded to the apparent violations. 
In his response, Mr. Rochelle denied the violation regarding his 
failure to survey and monitor areas surrounding the location where 
radiographic operations were being conducted on February 6, 1998, but 
admitted that the other violations had occurred. Mr. Rochelle stated 
that if he had gone to the barricades to perform the survey he could 
not have fulfilled the requirement to maintain constant surveillance of 
the high radiation area. Mr. Rochelle's explanation did not refute the 
violation, but merely provided a rationale for why he chose

[[Page 63635]]

not to perform the required surveys and continuous monitoring.

III

    Based on the above, the NRC has concluded that Mr. Rochelle engaged 
in deliberate misconduct when he: (1) Permitted assistant radiographers 
to conduct radiographic operations without the direct supervision of a 
qualified radiographer; (2) failed to survey and monitor areas 
surrounding the location where radiographic operations were being 
conducted; (3) failed to control access to restricted areas that were 
required to be restricted; (4) created excessive radiation levels in 
unrestricted areas; and (5) failed to post radiation areas. Mr. 
Rochelle's deliberate actions caused the Licensee to be in violation of 
several regulatory requirements, and therefore, constitute violations 
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 
requirements to adequately supervise licensed activities performed by 
assistant radiographers and implement adequate radiological controls 
during the conduct of radiographic operations.
    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 would be 
protected if Mr. Rochelle were permitted to be involved in NRC-licensed 
activities at this time. Therefore, the public health, safety and 
interest require that Mr. Rochelle be prohibited from any involvement 
in NRC-licensed activities for a period of one year from the date of 
this Order. Additionally, Mr. Rochelle is required to notify the NRC of 
his first employment in NRC-licensed activities following the 
prohibition period and to notify the NRC of his involvement in all 
subsequent NRC-licensed activities for five years following the 
prohibition period. Furthermore, pursuant to 10 CFR 2.202, I find that 
the significance of Mr. Rochelle's conduct are such that the public 
health, safety and interest require that this Order be immediately 
effective.

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, 10 CFR 
20.1301, 10 CFR 20.1902(a), and Condition 21 of the NDTS License, it is 
hereby ordered, effective immediately, that:
    1. Mr. Johnny Lee Rochelle 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. Rochelle 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. Rochelle shall, within 20 days of his acceptance of 
subsequent employment offers involving his performance of 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. 
Rochelle 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. Johnny Lee Rochelle of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Rochelle 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, DC 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. Rochelle 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, 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, and to the Regional Administrator, NRC Region II, Atlanta 
Federal Center, 61 Forsyth Street, SW., Suite 23T85, Atlanta, Georgia 
30303-3415 and to Mr. Rochelle, if the answer or hearing request is by 
a person other than Mr. Rochelle. If a person other than Mr. Rochelle 
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. Rochelle 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. Rochelle, 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.

    For the Nuclear Regulatory Commission.

    Dated this 17th day of October 2000.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research, and State Programs.
[FR Doc. 00-27287 Filed 10-23-00; 8:45 am]
BILLING CODE 7590-01-P