[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Notices]
[Pages 50657-50659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19833]
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NUCLEAR REGULATORY COMMISSION
[IA-08-008]
In the Matter of Mr. Patrick A. Kelly; Order Prohibiting
Involvement in NRC-Licensed 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
[[Page 50658]]
conducted radiography alone at the ASRC facility on numerous occasions
since about 2004. Second, he provided information that he knew was
incomplete and inaccurate during his sworn statement to NRC
investigators, in violation of 10 CFR 30.10(a)(2), on July 24, 2007.
During his interview on July 24, 2007, Mr. Kelly admitted to
conducting radiography by himself at the AIX Golovin site because he
thought it was a permanent radiographic installation. If it were a
permanent radiographic installation, conducting radiography with only
one qualified individual would have been allowed under NRC regulations.
However, the NRC inspector pointed out that the AIX Golovin site was
not approved as a permanent radiographic installation and, therefore,
two qualified individuals were required to be present during
radiography. The NRC did not find that Mr. Kelly engaged in deliberate
misconduct with regard to violating the two-person rule at the Golovin
site. However, during that interview, he denied that there were times
when he conducted radiography by himself in violation of the two-person
rule at the ASRC site. Later, when asked if he always followed the two-
person rule at the ASRC site, he answered yes. When asked if he could
remember any of the other AIX radiographers conducting radiographic
operations with less than two people, he answered no.
However, on January 10, 2008, after being confronted with
information from other radiographers and radiographers' assistants that
he had performed radiography by himself at times at the ASRC site, Mr.
Kelly admitted to deliberately violating the two-person rule (10 CFR
34.41(a)). Mr. Kelly stated that although he worked mainly at another
client's facility, there were times when he worked at the ASRC site and
some of those times he conducted radiographic operations in violation
of the two-person rule. He stated that he, along with the former AIX
radiation safety officer and another AIX radiographer took it upon
themselves to decide it was acceptable to conduct radiography in
violation of the two-person rule because of the facility that AIX had
built at the ASRC site.\1\ He stated that when one person was
``shooting'' (conducting radiography), the other person would just
return to the AIX Golovin site to develop film. He stated, ``We knew we
were breaking the rules.''
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\1\ In 2001-2002, AIX had requested that the NRC approve the
structure it had built at the ASRC site as a permanent radiographic
installation. However, the structure required extensive
modifications in order to meet NRC requirements. AIX did not make
the modifications and, as a result, the NRC never approved it. If
the structure had been approved, then AIX would have been authorized
to conduct radiography with only one individual instead of two.
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The NRC notes that Mr. Kelly was aware of previous NRC enforcement
action taken against AIX,\2\ and was present at the March 2001
predecisional enforcement conference with AIX when the NRC and AIX
discussed whether another AIX employee engaged in deliberate misconduct
for conducting radiography by himself at the ASRC site. This is the
same violation at the same location that is being cited herein, and as
part of AIX's corrective action, all AIX radiographers, including Mr.
Kelly, signed a memorandum in February 2001 acknowledging that the two-
person rule for radiographers and radiographer assistants requires
that, during exposures, two individuals must monitor the radiation
area. This memorandum was attached to a letter dated March 12, 2001, in
which AIX stated that all radiographers had been advised of the two-
person rule. This letter was discussed during the March 2001
predecisional enforcement conference which Mr. Kelly attended.
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\2\ On 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).
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III
The NRC must rely on Licensees and their employees to act with
integrity in complying with NRC requirements, and communicating with
candor. Mr. Kelly'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.
Kelly 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. Kelly were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health and
safety interest require that Mr. Kelly be prohibited from any
involvement in NRC-licensed activities for a period of 1 year from the
date of this Order. Additionally, Mr. Kelly 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. Kelly'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. Patrick A. Kelly is prohibited for 1-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. Kelly is currently involved with another licensee in NRC-
licensed 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 1-year period of prohibition
has expired, Mr. Kelly 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. Kelly 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, OE, may, in writing, relax or rescind any of the
above conditions upon demonstration by Mr. Kelly of good cause.
V
In accordance with 10 CFR 2.202, Mr. Patrick A. Kelly 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. Kelly 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
[[Page 50659]]
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
[email protected], 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 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 Viewer(\TM\) to access the Electronic
Information Exchange (EIE), a component of the E-Filing system. The
Workplace Forms Viewer(\TM\) is free and is available at http://www.nrc.gov/site-help/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/apply-certificates.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/e-submittals.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 E-Filing 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/e-submittals.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 first-class 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. Kelly 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. Kelly 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. Kelly, 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. E8-19833 Filed 8-26-08; 8:45 am]
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