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

63634 Federal Register / Vol. 65, No. 206 / Tuesday, October 24, 2000 / Notices

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

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