[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27609]
[[Page Unknown]]
[Federal Register: November 8, 1994]
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NUCLEAR REGULATORY COMMISSION
Order Prohibiting Involvement in Certain NRC-Licensed Activities;
Effective Immediately
I
Thomas A. Nisbet was employed as a Radiographer for Western
Industrial X-Ray Inspection Company, Inc. (Licensee or WIX), Evanston,
Wyoming, from May 1993 to June 1994, when the WIX license was
suspended. WIX is the holder of License No. 49-27356-01 issued by the
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR
Parts 30 and 34. The license authorizes the Licensee to possess sealed
sources to iridium-192 in various radiography devices for use in
performing industrial radiography in accordance with the conditions of
the license. The license was suspended by NRC Order on June 16, 1994,
and remains in suspension while a hearing requested by the Licensee is
pending. On September 27, 1994, the NRC issued an immediately effective
Order to WIX to transfer material in its possession. In a provision
that is not effective immediately, the Order also revoked the WIX
license.
II
Between January and June 1994, an inspection (030-32190/94-01) and
an Office of Investigations (OI) investigation (4-93-049R) of licensed
activities were conducted in response to allegations that Mr. Thomas A.
Nisbet, a Radiographer formerly employed by WIX, had deliberately
allowed a Radiographer's Assistant employed by WIX and working with
him, to perform radiographic operations on July 31, 1993, without
supervision, and that the Licensee deliberately failed to evaluate a
July 31, 1993, potential overexposure incident involving the
Radiographer's Assistant. During the inspection and investigation, the
Radiographer's Assistant informed the inspector and investigator that
she and Mr. Nisbet falsified a written incident report provided to
their employer that described the circumstances involving the potential
overexposure incident. This potential overexposure incident occurred as
the result of the Radiographer's Assistant not properly implementing
radiography procedures while performing radiographic operations in that
she failed to perform a survey to verify that the source was returned
to its shielded position after a radiographic exposure was taken and
she failed to lock the source in the exposure device prior to moving
the device.
Based on its review of the available information, the NRC concludes
that Mr. Nisbet violated provisions of 10 CFR 30.10, which prohibits
individuals from deliberately causing a licensee to be in noncompliance
with NRC requirements and from deliberately providing incomplete or
inaccurate information to the NRC or to a licensee of the NRC which the
individual knows is material in some respect to the NRC. Specifically,
as discussed below in more detail, the NRC concludes that : 1) Mr.
Nisbet deliberately failed to provide personal supervision of,
including the failure to watch, his assistant, while she was performing
radiographic operations on July 31, 1993, a violation of 10 CFR 34.44;
and 2) Mr. Nisbet deliberately provided inaccurate information to the
Radiation Safety Officer for WIX about the July 31, 1993, incident, a
violation of 10 CFR 30.10.
During the inspection and investigation, Mr. Nisbet stated that he
had allowed the Radiographer's Assistant to perform radiographic
operations without his direct supervision. When questioned, Mr. Nisbet
stated that he knew that allowing the Radiographer's Assistant to
perform radiographic operations without his supervision was a violation
of NRC requirements; however, during subsequent questioning, Mr. Nisbet
stated that he knew that he was responsible for the Radiographer's
Assistant but he did not know that he had to watch her perform
radiographic operations 100 percent of the time. Mr. Nisbet stated that
he was performing paperwork in his truck during the time that the
Radiographer's Assistant was potentially overexposed while performing
radiographic operations on July 31, 1993. Mr. Nisbet stated that his
written report of the incident which he provided to the President and
Radiation Safety Officer for WIX was not completely true in that he did
not actually observe the Radiographer's Assistant conduct radiography
when the incident occurred.
During an enforcement conference that was held on August 30, 1994,
Mr. Nisbet stated that he and other WIX radiographers had allowed their
assistants to perform radiographic operations without being observed
once they were confident that their assistants could perform
radiographic operations without direct supervision. Mr. Nisbet stated
that this was a common practice and that the WIX President and
Radiation Safety Officer, Mr. Larry D. Wicks, had provided guidance to
conduct radiography in this manner. Mr. Nisbet stated that he knew that
there was an NRC regulation which required radiographers to supervise
radiographer's assistants, but he did not know specifically what this
supervision entailed and the guidance that he received from Mr. Wicks
relative to this requirement was that he could perform dark room
activities and complete paperwork while the Radiographer's Assistant
conducted radiographic operations once he was confident that the
assistant could perform radiography without direct supervision. Mr.
Nisbet also stated that he felt pressured to allow the Radiographer's
Assistant to perform radiographic operations without direct supervision
or observation in order to meet the schedule for accomplishing the
number of contractually-specified daily radiographs.
Although 10 CFR 34.44 is explicit that personal supervision
includes watching the radiogrpaher's assistant's performance of
operations, Mr. Nisbet stated that he was provided guidance by his
employer that is contrary to the requirements to that regulation.
However, improper direction from management does not excuse failure to
comply with regulatory requirements.
The following considerations raise significant questions about Mr.
Nisbet's willingness to comply with the NRC regulation that governs the
supervision of Radiographers' Assistants:
1. Mr. Nisbet initially told the investigators that he did not
watch the Radiographer's Assistant operate the exposure device for a
particular weld (three exposures) on July 31, 1993, which he knew was a
violation of NRC requirements.
2. Mr. Nisbet initially told the investigators that he had told the
Radiographer's Assistant that she violated NRC regulations when she
operated the exposure device on July 31, 1993, without him observing.
3. Mr. Nisbet falsified the written report that described the July
31, 1993, incident so that the report indicated that he was observing
the Radiographer's Assistant at the time that the potential
overexposure of the Radiographer's Assistant occurred.
4. The Radiographer's Assistant told the investigators that she
agreed to falsify the incident report because, knowing it was a
violation of NRC requirements for her to perform radiographic
operations without being observed by Mr. Nisbet, she believed that he
would be fired if Mr. Wicks knew that Mr. Nisbet was not supervising
her while she was performing radiography.
Mr. Nisbet also told NRC personnel during the enforcement
conference that he and the Radiographer's Assistant agreed, at the
suggestion of the Radiographer's Assistant's spouse, who was also a WIX
radiographer and Assistant Radiation Safety Officer, to provide a false
account of how the potential overexposure incident occurred. Mr. Nisbet
stated that the Radiographer's Assistant's spouse told him and the
Radiographer's Assistant that they were likely to be fired if they told
Mr. Wicks what actually transpired. Upon further questioning by the NRC
personnel during the enforcement conference, Mr. Nisbet stated that he
was not coerced into falsifying the written incident report and it was
his decision to do so. Mr. Nisbet stated that after Mr. Wicks became
aware of what actually occurred, Mr. Wicks told him that he would be
fired if a similar incident occurred again.
Based on its review of the evidence gathered during the OI
investigation, as well as the information obtained during the
enforcement conference, the NRC concludes that Mr. Nisbet deliberately
failed to personally supervise the Radiographer's Assistant while she
conducted radiographic operations on July 31, 1993, and that Mr. Nisbet
deliberately provided false information to the Licensee regarding the
July 31, 1993 incident.
Based on the above, Thomas A. Nisbet has engaged in deliberate
misconduct that caused the Licensee to be in violation of 10 CFR 34.44.
The NRC must be able to rely on the Licensee and its 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. Nisbet's actions in causing the Licensee to
violate 10 CFR 34.44 have raised serious doubt as to whether he can be
relied upon to comply with NRC requirements in the future.
Consequently, I lack the requisite reasonable assurance that
licensed activities can be conducted in compliance with the
Commission's requirements and that the health and safety of the public
will be protected, if Mr. Nisbet were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Thomas A. Nisbet be prohitied from any
involvement in NRC-licensed activities for a period of one year from
the date of this Order, and if he is currently involved with another
NRC 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. Additionally, Mr. Nisbet is required to notify the NRC of his
first employment in NRC-licensed activities following the prohibition
period. Furthermore, pursuant to 10 CFR 2.202, I find that the
significance of Mr. Nisbet's conduct described above is such that the
public health, safety and interest require that this Order be
immediately effective.
IV
Accordingly, pursuant to sections 81, 161b, 161i, 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 Part 34, IT IS
HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT:
1. Thomas A. Nisbet 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. The first time Mr. Nisbet is employed in NRC-licensed activities
following the one-year prohibition, he shall notify the Director,
Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington,
D.C. 20555, and the Regional Administrator, NRC Region IV, at least
five days prior to the performance of licensed activities (as described
in 1 above). The notice shall include the name, address, and telephone
number of the NRC or Agreement State licensee and the location where
the licensed activities will be performed. The notice 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. Nisbet of
good cause.
V
In accordance with 10 CFR 2.202, Mr. Nisbet 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. 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. Nisbet or any 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, and
to Mr. Nisbet if the answer or hearing request is by a person other
than Mr. Nisbet. If a person other than Mr. Nisbet 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. Nisbet 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. Nisbet, 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, the provisions specified
in Section IV above shall be final 20 days from the date of this Order
without further order or proceedings. AN ANSWER OR A REQUEST FOR
HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.
Dated at Rockville, Maryland this 31st day of October, 1994.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards and
Operations Support.
[FR Doc. 94-27609 Filed 11-8-94; 8:45 am]
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