[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Notices]
[Pages 56176-56178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27511]
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NUCLEAR REGULATORY COMMISSION
[IA 95-055]
James L. Shelton; Order Prohibiting Involvement in NRC-Licensed
Activities (Effective Immediately)
I
James L. Shelton is President and Radiation Safety Officer (RSO) of
TESTCO, Inc. (TESTCO or Licensee) located in Greensboro, North
Carolina. TESTCO holds byproduct materials License No. 041-0894-1
issued by the State of North Carolina under an agreement with the
Nuclear Regulatory Commission (NRC or Commission) or the Atomic Energy
Commission pursuant to subsection 274b of the Atomic Energy Act, as
amended. The license authorizes the possession and use of byproduct
material for industrial radiography activities in accordance with the
conditions specified therein. Mr. Shelton, in addition to being
President and RSO, has served as a radiographer from June 1990 to the
present.
II
On September 9, 1992, while conducting an inspection of another NRC
licensee, an NRC inspector obtained information which indicated that
TESTCO had performed radiographic activities in areas under NRC
jurisdiction. A review of NRC records revealed that TESTCO did not
possess an NRC specific license
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pursuant to 10 CFR 30.3, nor had TESTCO notified the NRC of this
activity by filing a NRC Form-241 as required by 10 CFR 150.20(b)(1).
The requirement that an Agreement State licensee must file Form-241
before conducting a licensed activity in a non-Agreement State allows
NRC to be informed of the location and duration of the activity and
permits NRC to inspect it as appropriate. Since August 9, 1991, NRC has
required a fee for the initial filing of Form-241, as well as for
subsequent revisions to the Form-241.
Between November 16, 1992 and April 25, 1995, an investigation was
conducted by the NRC Office of Investigations (OI) to determine if the
failure to make the required notification to the NRC was the result of
deliberate misconduct. Based on the investigative findings, the NRC
staff concludes that on numerous occasions between August 9, 1991, and
August 31, 1994, TESTCO conducted radiography using iridium-192, a
licensed material, in Virginia, a non-Agreement state (i.e., a State
under NRC jurisdiction), without a specific NRC license; and Mr.
Shelton deliberately failed to assure that Form-241 was filed with the
NRC as required by the general license granted to TESTCO pursuant to 10
CFR 150.20.
A transcribed predecisional enforcement conference between the NRC
and Mr. Shelton, representing himself and TESTCO, was held on July 27,
1995. Mr. Shelton indicated during this conference that he had
delegated the submission of the NRC Form-241's to his former wife, who
was TESTCO's office manager.
The conclusion that Mr. Shelton deliberately failed to assure that
the Form-241's were filed is based on the following facts when taken
together: (1) Mr. Shelton acknowledged that he was aware of the
requirement to file Form-241's; (2) a Form-241 was filed on February
11, 1991, for work conducted in the State of Virginia on February 13,
and that form bears Mr. Shelton's signature rather than that of the
office manager; (3) Mr. Shelton provided OI with copies of two other
Form-241's that he claims to have filed in July 1990 and August 1991,
which also bear his signature rather than that of the office manager;
(4) no Form-241's were filed between August 9, 1991, the effective date
of the rule change requiring a fee for the filing of Form-241, and
August 31, 1994, when an NRC inspection of TESTCO focused on the Form-
241 issue, and OI determined that TESTCO performed work in Virginia on
numerous occasions during that time period; 1 (5) according to
sworn testimony from an individual interviewed by OI who was
knowledgeable concerning TESTCO's licensed activities, Mr. Shelton
stated that he would not make the notifications to the NRC if he had to
pay a fee; and (6) Mr. Shelton admitted during the predecisional
enforcement conference that, on a number of occasions, he became aware
after the fact that his wife had failed to file Form-241, but he took
no action as the TESTCO President and RSO to prevent recurrence.
\1\ Mr. Shelton provided OI with a copy of two Form-241's that
he claims to have filed on August 23, 1991, and July 1, 1992. NRC
has no record of receiving these Form-241's, and NRC fee records do
not show any receipt of the fees that would have accompanied them.
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As President and RSO, Mr. Shelton assigned and conducted the
radiographic operations and he was responsible for complying with NRC
requirements. When he determined that the Form-241's were not being
filed with the NRC, he should have resumed the practice of filing the
forms himself, discontinued operations in NRC jurisdiction, notified
the NRC, or taken other action to assure compliance.
III
Based on the above, the staff concludes that Mr. Shelton engaged in
deliberate misconduct, a violation of 10 CFR 30.10, which caused the
Licensee to be in violation of 10 CFR 30.3 and 10 CFR 150.20 for the
failure to have a specific NRC license or else file Form-241 with the
NRC as required by the general license granted pursuant to 10 CFR
150.20. As RSO and President of TESTCO, Mr. Shelton was responsible for
radiation safety and compliance with NRC requirements, specifically in
this case, the notification of the NRC through the submittal of the NRC
Form-241. Failure of the licensee to notify the NRC denied the NRC the
opportunity to inspect the activities and ensure that the health and
safety of the public was being protected.
The NRC must be able to rely on the licensee and its employees to
comply with NRC requirements. The deliberate violation of 10 CFR 30.3
and 10 CFR 150.20 by Mr. Shelton, as discussed above, raises serious
doubts as to whether he can be relied upon to comply with NRC
requirements.
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. Shelton were permitted at this time to
exercise control over, or engage in, NRC-licensed activities.
Therefore, the public health, safety and interest require that Mr.
Shelton be prohibited from controlling or engaging in NRC-licensed
activities for a period of three years from the date of this Order.
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 150.20, it is
hereby ordered, effective immediately, That:
A. For a period of three years from the date of this Order, Mr.
James L. Shelton is prohibited from engaging in, or exercising any
control over, NRC-licensed activities. NRC-licensed activities are
those activities which 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. This prohibition includes, but is
not limited to: (1) Using licensed materials or conducting licensed
activities in any capacity within the jurisdiction of the NRC; and (2)
assigning, supervising, directing, assisting, or serving as radiation
safety officer for, licensed activities conducted within the
jurisdiction of the NRC.
B. Following the three year prohibition in Section IV.A. above, at
least five days prior to the first time that Mr. Shelton engages in, or
exercises control over, NRC-licensed activities, he shall notify the
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, D.C. 20555. 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 be accompanied by a statement that Mr. Shelton is committed to
compliance with NRC 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. Shelton
of good cause.
V
In accordance with 10 CFR 2.202, James L. Shelton 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
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Order. 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,
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 James L. Shelton or
other person adversely affected relies and the reasons why the Order
should not have been issued. Any answer or request for 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 II, Suite 2900, 101 Marietta Street,
NW, Atlanta, Georgia 30323, and to James L. Shelton, if the answer or
hearing request is by a person other than James L. Shelton. If a person
other than James L. Shelton 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 James L. Shelton 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), James L. Shelton, or any other
person adversely affected by this Order, may, in addition to demanding
a hearing, at the same time the answer is filed or sooner, move the
presiding officer to set aside the immediate effectiveness of the Order
on the grounds 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 Part IV of this Order 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 at Rockville, Maryland this 31st day of October 1995.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and
Operations Support.
[FR Doc. 95-27511 Filed 11-6-95; 8:45 am]
BILLING CODE 7590-01-P
