63632 Federal Register / Vol. 65, No. 206 / Tuesday, October 24, 2000 / Notices

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 NRClicensed 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 NRClicensed 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.

Federal Register / Vol. 65, No. 206 / Tuesday, October 24, 2000 / Notices 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 NRClicensed 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

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