Federal Register / Vol. 73, No. 167 / Wednesday, August 27, 2008 / Notices 50655 

Information Exchange (EIE), a 

component of the E-Filing system. The 

Workplace Forms ViewerTM is free and 

is available at http://www.nrc.gov/sitehelp/e-submittals/install-viewer.html. 

Information about applying for a digital 

ID certificate also is available on NRC’s 

public Web site at http://www.nrc.gov/ 

site-help/e-submittals/applycertificates.html. 

Once a requestor has obtained a 

digital ID certificate, had a docket 

created, and downloaded the EIE 

viewer, it can then submit a request for 

a hearing through EIE. Submissions 

should be in Portable Document Format 

(PDF) in accordance with NRC guidance 

available on the NRC public Web site at 

http://www.nrc.gov/site-help/esubmittals.html. A filing is considered 

complete at the time the filer submits its 

document through EIE. To be timely, 

electronic filings must be submitted to 

the EIE system no later than 11:59 p.m. 

Eastern Time on the due date. Upon 

receipt of a transmission, the E-Filing 

system time-stamps the document and 

sends the submitter an e-mail notice 

confirming receipt of the document. The 

EIE system also distributes an e-mail 

notice that provides access to the 

document to the NRC Office of the 

General Counsel and any others who 

have advised the Office of the Secretary 

that they wish to participate in the 

proceeding, so that the filer need not 

serve the document on those 

participants separately. Therefore, any 

others who wish to participate in the 

proceeding (or their counsel or 

representative) must apply for and 

receive a digital ID certificate before a 

hearing request is filed so that they may 

obtain access to the document via the EFiling system. 

A person filing electronically may 

seek assistance through the ‘‘Contact 

Us’’ link located on the NRC Web site 

at http://www.nrc.gov/site-help/esubmittals.html or by calling the NRC 

technical help line, which is available 

between 8:30 a.m. and 4:15 p.m., 

Eastern Time, Monday through Friday. 

The help line number is (800) 397–4209 

or locally, (301) 415–4737. 

Participants who believe that they 

have good cause for not submitting 

documents electronically must file a 

motion, in accordance with 10 CFR 

2.302(g), with their initial paper filing 

requesting authorization to continue to 

submit documents in paper format. 

Such filings must be submitted by (1) 

first class mail addressed to the Office 

of the Secretary of the Commission, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, Attention: 

Rulemaking and Adjudications Staff; or 

(2) courier, express mail, or expedited 

delivery service to the Office of the 

Secretary, Sixteenth Floor, One White 

Flint North, 11555 Rockville Pike, 

Rockville, Maryland 20852, Attention: 

Rulemaking and Adjudications Staff. 

Participants filing a document in this 

manner are responsible for serving the 

document on all other participants. 

Filing is considered complete by firstclass mail as of the time of deposit in 

the mail, or by courier, express mail, or 

expedited delivery service upon 

depositing the document with the 

provider of the service. 

Documents submitted in adjudicatory 

proceedings will appear in NRC’s 

electronic hearing docket which is 

available to the public at http:// 

ehd.nrc.gov/EHD_Proceeding/home.asp, 

unless excluded pursuant to an order of 

the Commission, an Atomic Safety and 

Licensing Board, or a Presiding Officer. 

Participants are requested not to include 

personal privacy information, such as 

social security numbers, home 

addresses, or home phone numbers in 

their filings. With respect to copyrighted 

works, except for limited excerpts that 

serve the purpose of the adjudicatory 

filings and would constitute a Fair Use 

application, Participants are requested 

not to include copyrighted materials in 

their works. 

If a person other than the Licensee 

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 2.309(d). 

If a hearing is requested by a Licensee 

or a person whose interest is adversely 

affected, the Commission will issue an 

Order designating the time and place of 

any hearings. 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), the Licensee, 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 this 20th day of August 2008. 

For the Nuclear Regulatory Commission. 

Cynthia A. Carpenter, 

Director, Office of Enforcement. 

[FR Doc. E8–19831 Filed 8–26–08; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[IA–08–006] 

In the Matter of Mr. Kenneth J. 

Vandiver; Order Prohibiting 

Involvement in NRC-Licensed 

Activities (Effective Immediately) 

I 

Mr. Kenneth J. Vandiver is employed 

as a radiographer at Alaska Industrial XRay, Inc. (AIX) located in Anchorage, 

Alaska, and until November 2007, Mr. 

Vandiver was the radiation safety officer 

(RSO) for AIX. AIX holds License No. 

50–16084–01 issued by the Nuclear 

Regulatory Commission (NRC or 

Commission) pursuant to 10 CFR part 

34 to conduct radiography. The license 

authorizes AIX to possess sealed 

radioactive sources for use in 

conducting industrial radiography 

activities in accordance with the 

conditions specified therein. 

II 

On June 4, 2007, an investigation was 

initiated by the NRC’s Office of 

Investigations (OI), in part, to determine 

whether Mr. Vandiver, as RSO, engaged 

in deliberate misconduct by performing 

radiography with only one radiographer 

present at the Arctic Slope Regional 

Corporation Energy Services (ASRC) 

facility, a temporary jobsite. A 

predecisional enforcement conference 

(PEC) was held on June 5, 2008, with 

employees of AIX, including Mr. 

Vandiver, in an effort to obtain AIX’s 

point of view on the violations. 

Based on our review of the 

information obtained during the PEC 

and from the investigation, two 

violations of the NRC’s rule prohibiting 

deliberate misconduct, 10 CFR 30.10, 

were identified. 

First, Mr. Vandiver engaged in 

deliberate misconduct in violation of 10 

CFR 30.10(a)(1) by causing AIX to be in 

violation of 10 CFR 34.41(a) when he 

conducted radiography alone at the 

ASRC facility on numerous occasions 

since about 2004. Second, he provided 

information that he knew was 


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50656 Federal Register / Vol. 73, No. 167 / Wednesday, August 27, 2008 / Notices 

1On April 25, 2001, the NRC issued a Notice of 

Violation for a Severity Level III violation involving 

a failure to meet the requirements of 10 CFR 

34.41(a) (EA–01–015). 

incomplete and inaccurate during his 

sworn statement to NRC investigators, 

in violation of 10 CFR 30.10(a)(2), on 

July 24, 2007, when Mr. Vandiver stated 

that he always abided by the two-person 

rule (10 CFR 34.41(a)), and that there 

had never been an occasion in which he 

conducted radiographic operations by 

himself. He also stated that to the best 

of his knowledge, as RSO, that AIX 

personnel were following the twoperson rule. However, later on July 25, 

2007, after the NRC had been informed 

by other radiographers and 

radiographer’s assistants that he had 

performed radiography by himself at 

times at the ASRC site, Mr. Vandiver 

admitted to violating the two-person 

rule. Mr. Vandiver also admitted to 

having left a radiographer alone at the 

ASRC site on occasions to conduct 

radiography while he returned to the 

Golovin site to develop film. During a 

third interview conducted on January 

10, 2008, Mr. Vandiver provided 

substantially the same information 

about his actions and the actions of 

other AIX radiographers in violation of 

the two-person rule. 

Despite Mr. Vandiver’s limited 

recollection during the PEC held June 5, 

2008, we note Mr. Vandiver was aware 

of previous NRC enforcement action 

taken against AIX for the same violation 

at the same location.1 In fact, Mr. 

Vandiver was a primary spokesperson 

for the company’s position during the 

2001 PEC with the NRC, and signed a 

memorandum in response to this 

violation indicating acknowledgement 

of the need to comply with the twoperson rule. 

The NRC has also concluded that Mr. 

Vandiver’s deliberate misconduct is 

significant because he did not perform 

the duties of an RSO as described in 10 

CFR 34.42. Specifically, as RSO he was 

responsible for ensuring that radiation 

safety activities were being performed in 

accordance with approved procedures 

and regulatory requirements in the daily 

operation of the licensee’s program. In 

this case, not only did Mr. Vandiver 

deliberately violate 10 CFR 34.41(a), he 

was also aware that other AIX 

radiographers were deliberately 

violating this requirement and took no 

actions to stop it. Then, when 

questioned by the NRC, he knowingly 

provided incomplete and inaccurate 

information about the violations. 

III 

The NRC must rely on Licensees and 

their employees to act with integrity in 

complying with NRC requirements, and 

communicating with candor. In 

addition, the NRC has greater 

expectations for company managers, 

including radiation safety officers, to 

fulfill their required responsibilities in 

providing oversight of company 

activities to ensure that NRC 

requirements are followed. Mr. 

Vandiver’s actions raised serious doubt 

as to whether he can be relied upon to 

comply with NRC requirements and to 

provide complete and accurate 

information to the NRC. 

Consequently, I lack the requisite 

reasonable assurance that Mr. Vandiver 

will perform licensed activities in 

compliance with the Commission’s 

requirements and that the health and 

safety of the public will be protected if 

Mr. Vandiver were permitted at this 

time to be involved in NRC-licensed 

activities. Therefore, the public health 

and safety interest require that Mr. 

Vandiver be prohibited from any 

involvement in NRC-licensed activities 

for a period of 3 years from the date of 

this Order. Additionally, Mr. Vandiver 

is required to notify the NRC of his first 

employment in NRC-licensed activities 

for a period of 1-year following the 

prohibition period. Furthermore, 

pursuant to 10 CFR 2.202, I find that the 

significance of Mr. Vandiver’s conduct 

described above is such that the public 

health and safety 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 

Parts 20, 34, and 10 CFR 150.20, it is 

hereby ordered, effective immediately, 

that: 

1. Mr. Kenneth J. Vandiver is 

prohibited for 3 years 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. Vandiver is currently 

involved with another licensee in NRClicensed activities, 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 1-year after the 3- 

year period of prohibition has expired, 

Mr. Vandiver shall, within 20 days of 

acceptance of his first employment offer 

involving NRC-licensed activities or his 

becoming involved in NRC-licensed 

activities, as defined in Paragraph IV.1 

above, provide notice to the Director, 

Office of Enforcement, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, of 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 notification, Mr. Vandiver shall 

include a statement of his commitment 

to compliance with regulatory 

requirements and the basis why the 

Commission should have confidence 

that he will now comply with 

applicable NRC requirements. 

The Director, Office of Enforcement, 

may, in writing, relax or rescind any of 

the above conditions upon 

demonstration by Mr. Vandiver of good 

cause. 

V 

In accordance with 10 CFR 2.202, Mr. 

Kenneth J. Vandiver must, and any 

other person adversely affected by this 

Order may, submit an answer to this 

Order within 20 days of its issuance. In 

addition, Mr. Vandiver and any other 

person adversely affected by this Order 

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 answer 

or request a hearing. A request for 

extension of time must be directed to 

the Director, Office of Enforcement, U.S. 

Nuclear Regulatory Commission, and 

include a statement of good cause for 

the extension. 

A request for a hearing must be filed 

in accordance with the NRC E-Filing 

rule, which the NRC promulgated in 

August 2007, 72 FR 49139 (Aug. 28, 

2007). The E-Filing process requires 

participants to submit and serve 

documents over the internet or, in some 

cases, to mail copies on electronic 

optical storage media. Participants may 

not submit paper copies of their filings 

unless they seek a waiver in accordance 

with the procedures described below. 

To comply with the procedural 

requirements associated with E-Filing, 

at least five (5) days prior to the filing 

deadline the requestor must contact the 

Office of the Secretary by e-mail at 

HEARINGDOCKET@NRC.GOV, or by 

calling (301) 415–1677, to request (1) a 

digital ID certificate, which allows the 

participant (or its counsel or 

representative) to digitally sign 

documents and access the E-Submittal 

server for any NRC proceeding in which 


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Federal Register / Vol. 73, No. 167 / Wednesday, August 27, 2008 / Notices 50657 

it is participating; and/or (2) creation of 

an electronic docket for the proceeding 

(even in instances when the requestor 

(or its counsel or representative) already 

holds an NRC-issued digital ID 

certificate). Each requestor will need to 

download the Workplace Forms 

ViewerTM to access the Electronic 

Information Exchange (EIE), a 

component of the E-Filing system. The 

Workplace Forms ViewerTM is free and 

is available at http://www.nrc.gov/sitehelp/e-submittals/install-viewer.html. 

Information about applying for a digital 

ID certificate also is available on NRC’s 

public Web site at http://www.nrc.gov/ 

site-help/e-submittals/applycertificates.html. 

Once a requestor has obtained a 

digital ID certificate, had a docket 

created, and downloaded the EIE 

viewer, it can then submit a request for 

a hearing through EIE. Submissions 

should be in Portable Document Format 

(PDF) in accordance with NRC guidance 

available on the NRC public Web site at 

http://www.nrc.gov/site-help/esubmittals.html. A filing is considered 

complete at the time the filer submits its 

document through EIE. To be timely, 

electronic filings must be submitted to 

the EIE system no later than 11:59 p.m. 

Eastern Time on the due date. Upon 

receipt of a transmission, the E-Filing 

system time-stamps the document and 

sends the submitter an e-mail notice 

confirming receipt of the document. The 

EIE system also distributes an e-mail 

notice that provides access to the 

document to the NRC Office of the 

General Counsel and any others who 

have advised the Office of the Secretary 

that they wish to participate in the 

proceeding, so that the filer need not 

serve the document on those 

participants separately. Therefore, any 

others who wish to participate in the 

proceeding (or their counsel or 

representative) must apply for and 

receive a digital ID certificate before a 

hearing request is filed so that they may 

obtain access to the document via the EFiling system. 

A person filing electronically may 

seek assistance through the ‘‘Contact 

Us’’ link located on the NRC Web site 

at http://www.nrc.gov/site-help/esubmittals.html or by calling the NRC 

technical help line, which is available 

between 8:30 a.m. and 4:15 p.m., 

Eastern Time, Monday through Friday. 

The help line number is (800) 397–4209 

or locally, (301) 415–4737. 

Participants who believe that they 

have good cause for not submitting 

documents electronically must file a 

motion, in accordance with 10 CFR 

2.302(g), with their initial paper filing 

requesting authorization to continue to 

submit documents in paper format. 

Such filings must be submitted by (1) 

first class mail addressed to the Office 

of the Secretary of the Commission, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, Attention: 

Rulemaking and Adjudications Staff; or 

(2) courier, express mail, or expedited 

delivery service to the Office of the 

Secretary, Sixteenth Floor, One White 

Flint North, 11555 Rockville Pike, 

Rockville, Maryland, 20852, Attention: 

Rulemaking and Adjudications Staff. 

Participants filing a document in this 

manner are responsible for serving the 

document on all other participants. 

Filing is considered complete by firstclass mail as of the time of deposit in 

the mail, or by courier, express mail, or 

expedited delivery service upon 

depositing the document with the 

provider of the service. 

Documents submitted in adjudicatory 

proceedings will appear in NRC’s 

electronic hearing docket which is 

available to the public at http:// 

ehd.nrc.gov/EHD_Proceeding/home.asp, 

unless excluded pursuant to an order of 

the Commission, an Atomic Safety and 

Licensing Board, or a Presiding Officer. 

Participants are requested not to include 

personal privacy information, such as 

social security numbers, home 

addresses, or home phone numbers in 

their filings. With respect to copyrighted 

works, except for limited excerpts that 

serve the purpose of the adjudicatory 

filings and would constitute a Fair Use 

application, participants are requested 

not to include copyrighted materials in 

their works. 

If a person other than Mr. Vandiver 

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 2.309(d). 

If a hearing is requested by Mr. 

Vandiver or a person whose interest is 

adversely affected, the Commission will 

issue an Order designating the time and 

place of any hearings. 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. Vandiver, 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 this 20th day of August 2008. 

For the Nuclear Regulatory Commission. 

Cynthia A. Carpenter, 

Director, Office of Enforcement. 

[FR Doc. E8–19832 Filed 8–26–08; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[IA–08–008] 

In the Matter of Mr. Patrick A. Kelly; 

Order Prohibiting Involvement in NRCLicensed Activities (Effective 

Immediately) 

I 

Mr. Patrick A. Kelly is employed as a 

radiographer at Alaska Industrial X-Ray, 

Inc. (AIX) located in Anchorage, Alaska. 

AIX holds License No. 50–16084–01 

issued by the Nuclear Regulatory 

Commission (NRC or Commission) 

pursuant to 10 CFR Part 34 to conduct 

radiography. The license authorizes AIX 

to possess sealed radioactive sources for 

use in conducting industrial 

radiography activities in accordance 

with the conditions specified therein. 

II 

On June 4, 2007, an investigation was 

initiated by the NRC’s Office of 

Investigations (OI), in part, to determine 

whether Mr. Kelly engaged in deliberate 

misconduct by performing radiography 

with only one radiographer present at 

the Arctic Slope Regional Corporation 

Energy Services (ASRC) facility, a 

temporary jobsite. A predecisional 

enforcement conference (PEC) was held 

on June 5, 2008, with employees of AIX, 

including Mr. Kelly, in an effort to 

obtain AIX’s point of view on the 

violations. 

Based on our review of the 

information obtained during the PEC 

and from the investigation, two 

violations of the NRC’s rule prohibiting 

deliberate misconduct, 10 CFR 30.10, 

were identified. First, Mr. Kelly engaged 

in deliberate misconduct in violation of 

10 CFR 30.10(a)(1) by causing AIX to be 

in violation of 10 CFR 34.41(a) (also 

called the two-person rule) when he 


sroberts on PROD1PC70 with NOTICES