9218 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Notices

Order, and shall set forth the matters of

fact and law on which Mr. Kumar or

other person 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,

Docketing and Service Section,

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

Hearings and Enforcement at the same

address, to the Regional Administrator,

NRC Region I, 475 Allendale Road, King

of Prussia, Pennsylvania 19406, and to

Mr. Kumar if the answer or hearing

request is by a person other than Mr.

Kumar. If a person other than Mr.

Kumar requests a hearing, that person

shall set forth with particularity the

manner in which his or her 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. Kumar

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.

Kumar or any other person adversely

affected by this Order, may, in addition

to demanding a hearing, at the time the

answer is filed or sooner, move the

presiding officer to set aside the

immediate effectiveness of the Order on

the ground that the Order, including the

need for immediate 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 at Rockville, Maryland this 18th day

of February 1997.

For the Nuclear Regulatory Commission.

Edward L. Jordan,

Deputy Executive Director for Regulatory

Effectiveness, Program Oversight,

Investigations and Enforcement.

[FR Doc. 97–4999 Filed 2–27–97; 8:45 am]

BILLING CODE 7590–01–P

[IA–97–012]

In the Matter of James L. Mulkey;

Order Prohibiting Involvement in NRCLicensed Activities; (Effective

Immediately)

I

James L. Mulkey (Mr. Mulkey) was

employed as Vice President by Power

Inspection, Inc. (PI or Licensee), and

was identified on PI’s NRC license as

the Radiation Safety Officer (RSO) for

PI. PI is the holder of Byproduct License

No. 37–21428–01 (License) issued by

the Nuclear Regulatory Commission

(NRC or Commission) pursuant to 10

CFR Parts 30 and 34. The License

authorizes the Licensee to use iridium192 and cobalt-60 sealed sources for the

performance of industrial radiography at

its facility in Wexford, Pennsylvania, as

well as at temporary job sites. The

License was most recently renewed on

January 31, 1989, and expired on

January 31, 1994. In addition, the

Licensee submitted a request, dated

December 30, 1993, that the license be

terminated. Action on that request has

been held in abeyance pending further

NRC review.

In addition, PI acted as a vendor

supplying services to licensees of

nuclear power plants, including the

performance of nondestructive testing

services, such as eddy current testing

(ET). Such services were provided to the

licensees of Perry and Cooper nuclear

power plants in 1993.

II

On December 2 and 3, 1993, the NRC

performed an inspection at the

Licensee’s Wexford facility of activities

conducted under the License. During

that inspection, the NRC found

numerous violations of NRC

requirements. The violations included:

the failure of the RSO named on the

License to perform required duties; the

failure to conduct quarterly audits of all

radiographers; the failure to provide the

required annual refresher training to the

radiographers; the failure to perform, at

the required frequency, the required

inspection and maintenance on the

exposure device (camera) containing an

iridium-192 source; the failure to

perform leak tests of the sealed sources

at the required frequency; the failure to

promptly collect and submit film badges

for processing; and the failure to

maintain radiography utilization logs.

On December 2, 1993, an NRC

investigation was also initiated by the

NRC Office of Investigations (OI).

During its investigation, OI concluded

that:

a. With respect to the materials

license, responses in PI’s response letter

dated July 14, 1993, to the NRC were

deliberately incomplete and inaccurate,

and the President and former RSO were

responsible for providing this false

information to the NRC. Specifically,

the inaccurate information provided to

the NRC was in response to a previous

Notice of Violation issued to the

Licensee on June 16, 1993, for numerous

violations identified during an NRC

inspection conducted in April 1993.

In a response, signed by Mr. Mulkey,

to the violations listed in the June 16,

1993 Notice of Violation, the licensee

stated that: (1) observations of the

licensee’s radiographers had been made

when, in fact, the observations had not

been made; (2) a ratemeter had been

sent for calibration, when, in fact, the

ratemeter had not been sent; (3) pocket

dosimeters had been calibrated, when,

in fact, the dosimeters had not been

calibrated; (4) source utilization logs

had been maintained, when, in fact, the

logs had not been maintained; (5)

personnel monitoring reports were

available, when, in fact, the reports had

not been available.

b. With respect to the vendor-related

activities, false ET qualification

certifications were deliberately

generated by PI for at least three

employees who performed ET

examinations at Perry and Cooper

nuclear power plants during 1993 and

ET qualification certification

examination results and Personnel

Certification Summaries were generated

for four employees, and these

falsifications were condoned or directed

by the former President, former Vice

President/RSO (i.e., Mr. Mulkey), and

the former Quality Assurance Manager.

In addition, Mr. Mulkey deliberately

provided false information to the NRC

during a December 2, 1993 telephone

discussion with a representative of the

NRC in that Mr. Mulkey stated he was

the RSO, and that in September of 1993

he had visited the Wexford office and

executed the duties of an RSO. These

statements were false in that: (1)

Interviews with PI employees

established that Mr. Mulkey had not

visited the Wexford office during 1993,

and they were not aware of Mr. Mulkey

performing any audits related to

radiographic operations out of the

Wexford office; and (2) Mr. Mulkey
Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Notices 9219

indicated during the predecisional

enforcement conference on October 2,

1996, that he left the position of RSO for

the Wexford facility at the end of 1992

to work in Florida. However, during the

conference, Mr. Mulkey also indicated

that at the time he responded to the

NRC in the July 14, 1993 letter, he was

the RSO and was responsible for

compliance with the license.

III

Based on the above, Mr. Mulkey,

former Vice President and RSO of PI, a

licensee of the NRC, engaged in

deliberate misconduct, a violation of 10

CFR 30.10(a)(1), which caused PI to be

in violation of 10 CFR 30.9(a).

Specifically, as a result of Mr. Mulkey’s

actions, PI violated 10 CFR 30.9(a) by

providing to the NRC a letter dated July

14, 1993, which contained inaccurate

information relating to whether

corrective actions had been taken in

response to violations listed in an NRC

Notice of Violation dated June 16, 1993.

Mr. Mulkey also engaged in deliberate

misconduct, a violation of 10 CFR

30.10(a)(2) by deliberately providing

false information to the NRC during the

December 2, 1993 telephone discussion

with a representative of the NRC.

Specifically, Mr. Mulkey stated he was

the RSO, and that in September of 1993

he had visited the Wexford office and

executed the duties of an RSO.

Moreover, Mr. Mulkey, an employee

of PI, a contractor to licensees of the

NRC, engaged in deliberate misconduct,

a violation of 10 CFR 30.10(a)(2), by

deliberately submitting in March and in

October 1993 to the Cleveland Electric

Illuminating Company (CEIC) and

Nebraska Public Power District (NPPD),

both licensees of the NRC, ET

qualification certification examination

results and Personnel Certification

Summaries which were inaccurate.

The NRC must be able to rely on its

licensees and their employees to comply

with NRC requirements, including the

requirement to provide information and

maintain records that are complete and

accurate in all material respects. Mr.

Mulkey’s actions in causing the

Licensee to be in violation of NRC

requirements and in deliberately

violating NRC requirements have raised

serious doubt as to whether he can be

relied upon to comply with NRC

requirements and to provide complete

and accurate information to both the

NRC and NRC licensees.

Consequently, I lack the requisite

reasonable assurance that information

provided to the NRC by Mr. Mulkey, or

records required to be maintained by the

Licensee, will be complete and accurate

in all material respects if Mr. Mulkey

were permitted to be involved in any

NRC-licensed activities. I also lack the

requisite assurance that NRC-licensed

activities will be conducted safely or in

accordance with NRC requirements or

that the health and safety of the public

will be protected if Mr. Mulkey were

involved in NRC-licensed activities. In

addition, I find that Mr. Mulkey is either

unable or unwilling to assure that NRC

requirements are being and will be

followed.

Therefore, I find that the public

health, safety, and interest require that

Mr. Mulkey be prohibited from

involvement in NRC-licensed activities

for five years from the date of this

Order, and if he is currently engaged in

NRC-licensed activities with another

NRC licensee, he must immediately

cease such activities, and inform the

NRC of the name, address and telephone

number of the employer. Furthermore,

pursuant to 10 CFR 2.202, I find that the

significance of the misconduct

described above is such that the public

health, safety, and interest require that

this Order be immediately effective.

IV

Accordingly, pursuant to sections 57,

62, 81, 103, 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, 30.10, 50.5,

and 150.20, It is hereby ordered,

effective immediately, that:

A. Mr. James L. Mulkey is prohibited

for five years from the date of this Order

from any involvement in NRC-licensed

activities. For purposes of this Order,

licensed activities include the licensed

activities of: (1) an NRC licensee; (2) an

Agreement State licensee conducting

licensed activities in NRC jurisdiction

pursuant to 10 CFR 150.20; and (3) an

Agreement State licensee involved in

the distribution of products that are

subject to NRC jurisdiction. In addition,

if Mr. Mulkey is currently engaged in

NRC-licensed activities with another

NRC licensee, he must immediately

cease such activities, and inform the

NRC of the name, address and telephone

number of the employer.

B. The first time that Mr. Mulkey

engages in an NRC-licensed activity

following the five year prohibition, he

shall notify the Director, Office of

Enforcement, U.S. Nuclear Regulatory

Commission, Washington, DC 20555, at

least five days prior to the performance

of the licensed activity or his being

employed to perform NRC-licensed

activities (as described in A. above). The

notice shall include the name, address,

and telephone number of the employer

or the entity where he will be involved

in the NRC-licensed activity. In the

notification, Mr. Mulkey shall include a

statement of his commitment to

compliance with regulatory

requirements and the basis as to why

the Commission should have confidence

that he will now comply with

applicable NRC requirements.

The Director, Office of Enforcement

(OE), may, in writing, relax or rescind

any of the above conditions upon

demonstration by Mr. Mulkey of good

cause.

V

In accordance with 10 CFR 2.202, Mr.

Mulkey must, and any other 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 the date of this 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, 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. Mulkey or

other person 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,

Docketing and Service Section,

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

Hearings and Enforcement at the same

address, to the Regional Administrator,

NRC Region I, 475 Allendale Road, King

of Prussia, Pennsylvania 19406, and to

Mr. Mulkey if the answer or hearing

request is by a person other than Mr.

Mulkey. If a person other than Mr.

Mulkey requests a hearing, that person

shall set forth with particularity the

manner in which his or her 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.

Mulkey 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.
9220 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Notices

Pursuant to 10 CFR 2.202(c)(2)(i), Mr.

Mulkey or any other person adversely

affected by this Order, may, in addition

to demanding a hearing, at the time the

answer is filed or sooner, move the

presiding officer to set aside the

immediate effectiveness of the Order on

the ground that the Order, including the

need for immediate 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 at Rockville, Maryland this 18th day

of February 1997.

For the Nuclear Regulatory Commission.

Edward L. Jordan,

Deputy Executive Director for Regulatory

Effectiveness, Program Oversight,

Investigations and Enforcement.

[FR Doc. 97–4998 Filed 2–27–97; 8:45 am]

BILLING CODE 7590–01–P

[Docket No. 50–397; License No. NPF–21

EA 96–327]

In the Matter of Washington Public

Power Supply System Washington

Nuclear Project-2; Order Imposing Civil

Monetary Penalty

I

Washington Public Power Supply

System (Supply System or Licensee) is

the holder of reactor operating license

NPF–21 issued by the Nuclear

Regulatory Commission (NRC or

Commission) on April 13, 1984. The

license authorizes the Licensee to

operate Washington Nuclear Project 2

(WNP–2) in accordance with the

conditions specified therein.

II

An inspection of the Licensee’s

activities was conducted June 28

through September 4, 1996. The results

of this inspection indicated that the

Licensee had not conducted its

activities in full compliance with NRC

requirements. A written Notice of

Violation and Proposed Imposition of

Civil Penalty (Notice) was served upon

the Licensee by letter dated November

26, 1996. The Notice described the

violations, including the provisions of

the NRC’s requirements that the

Licensee had violated, and the amount

of the civil penalty proposed for the

violations.

The Licensee responded to the Notice

in a letter dated December 23, 1996. In

its response, the Licensee admitted that

the violations had occurred but

requested reconsideration of the

proposed civil penalty, citing the

following reasons: (1) A penalty of

$50,000 would be more consistent with

the purposes of the NRC’s enforcement

policy; (2) there was no systemic

breakdown in operational activities at

WNP–2; (3) additional credit should be

given for corrective actions; and (4) the

enforcement action placed too much

emphasis on a previous surveillancerelated violation.

III

After consideration of the Licensee’s

response and the statements of fact,

explanation, and argument for

mitigation contained therein, the NRC

staff has determined, as set forth in the

Appendix to this Order, that the

Licensee has not provided a basis for

mitigation of the civil penalty and that

the penalty proposed for the violations

in the Notice should be imposed.

IV

In view of the foregoing and pursuant

to Section 234 of the Atomic Energy Act

of 1954, as amended (Act), 42 U.S.C.

2282, and 10 CFR 2.205, It is hereby

ordered that:

The Licensee pay a civil penalty in

the amount of $100,000 within 30 days

of the date of this Order, by check, draft,

money order, or electronic transfer,

payable to the Treasurer of the United

States and mailed to James Lieberman,

Director, Office of Enforcement, U.S.

Nuclear Regulatory Commission, One

White Flint North, 11555 Rockville

Pike, Rockville, MD 20852–2738.

V

The Licensee may request a hearing

within 30 days of the date of this 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. A request for a

hearing should be clearly marked as a

‘‘Request for an Enforcement Hearing’’

and shall be addressed to the Director,

Office of Enforcement, U.S. Nuclear

Regulatory Commission Washington, DC

20555, with a copy to the Commission’s

Document Control Desk, Washington,

DC 20555. Copies also shall be sent to

the Assistant General Counsel for

Hearings and Enforcement at the same

address and to the Regional

Administrator, NRC Region IV, 611

Ryan Plaza Drive, Suite 400, Arlington,

TX 76055.

If a hearing is requested, the

Commission will issue an Order

designating the time and place of the

hearing. If the Licensee fails to request

a hearing within 30 days of the date of

this Order (or if written approval of an

extension of time in which to request a

hearing has not been granted), the

provisions of this Order shall be

effective without further proceedings. If

payment has not been made by that

time, the matter may be referred to the

Attorney General for collection.

In the event the Licensee requests a

hearing as provided above, the issues to

be considered at such hearing shall be:

Whether, on the basis of the violations

admitted by the Licensee, this Order

should be sustained.

Dated at Rockville, Maryland this 14th day

of February 1997.

For the Nuclear Regulatory Commission.

James Lieberman,

Director, Office of Enforcement.

Appendix—Evaluation and Conclusion

On November 26, 1996 a Notice of

Violation and Proposed Imposition of Civil

Penalty (Notice) was issued for violations

identified during an NRC inspection. The

Washington Public Power Supply System

(Supply System or Licensee) responded to

the Notice on December 23, 1996. The

Supply System admitted the violations but

requested reconsideration of the amount of

the civil penalty. A summary of the

Licensee’s reasons for a reduction in the

amount of the civil penalty and the NRC’s

evaluation of those reasons follow:

Summary of Licensee’s Request for

Reconsideration and NRC Evaluation

1. The Supply System stated that, given the

NRC’s recognition of the Supply System’s

identification of most of the violations and its

prompt and comprehensive corrective

actions, a more appropriate regulatory

message would be a penalty at the base

amount of $50,000. The Supply System cited

the intent of the NRC’s Enforcement Policy

(General Statement of Policy and Procedures

for NRC Enforcement Actions, NUREG–1600)

to encourage prompt identification and

prompt, comprehensive correction of

violations.

NRC Response: The NRC recognized that

the Supply System identified most of the

violations and that its corrective actions were

prompt and comprehensive. In fact, as the

Supply System noted in its response, the

NRC characterized this as a sign of improved

performance. Had the NRC considered no