[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Notices]
[Pages 9218-9220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4998]
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NUCLEAR REGULATORY COMMISSION
[IA-97-012]
In the Matter of James L. Mulkey; Order Prohibiting Involvement
in NRC-Licensed Activities; (Effective Immediately)
I
James L. Mulkey (Mr. Mulkey) was employed as Vice President by
Power Inspection, Inc. (PI or Licensee), and was identified on PI's NRC
license as the Radiation Safety Officer (RSO) for PI. PI is the holder
of Byproduct License No. 37-21428-01 (License) issued by the Nuclear
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Parts 30
and 34. The License authorizes the Licensee to use iridium-192 and
cobalt-60 sealed sources for the performance of industrial radiography
at its facility in Wexford, Pennsylvania, as well as at temporary job
sites. The License was most recently renewed on January 31, 1989, and
expired on January 31, 1994. In addition, the Licensee submitted a
request, dated December 30, 1993, that the license be terminated.
Action on that request has been held in abeyance pending further NRC
review.
In addition, PI acted as a vendor supplying services to licensees
of nuclear power plants, including the performance of nondestructive
testing services, such as eddy current testing (ET). Such services were
provided to the licensees of Perry and Cooper nuclear power plants in
1993.
II
On December 2 and 3, 1993, the NRC performed an inspection at the
Licensee's Wexford facility of activities conducted under the License.
During that inspection, the NRC found numerous violations of NRC
requirements. The violations included: the failure of the RSO named on
the License to perform required duties; the failure to conduct
quarterly audits of all radiographers; the failure to provide the
required annual refresher training to the radiographers; the failure to
perform, at the required frequency, the required inspection and
maintenance on the exposure device (camera) containing an iridium-192
source; the failure to perform leak tests of the sealed sources at the
required frequency; the failure to promptly collect and submit film
badges for processing; and the failure to maintain radiography
utilization logs.
On December 2, 1993, an NRC investigation was also initiated by the
NRC Office of Investigations (OI). During its investigation, OI
concluded that:
a. With respect to the materials license, responses in PI's
response letter dated July 14, 1993, to the NRC were deliberately
incomplete and inaccurate, and the President and former RSO were
responsible for providing this false information to the NRC.
Specifically, the inaccurate information provided to the NRC was in
response to a previous Notice of Violation issued to the Licensee on
June 16, 1993, for numerous violations identified during an NRC
inspection conducted in April 1993.
In a response, signed by Mr. Mulkey, to the violations listed in
the June 16, 1993 Notice of Violation, the licensee stated that: (1)
observations of the licensee's radiographers had been made when, in
fact, the observations had not been made; (2) a ratemeter had been sent
for calibration, when, in fact, the ratemeter had not been sent; (3)
pocket dosimeters had been calibrated, when, in fact, the dosimeters
had not been calibrated; (4) source utilization logs had been
maintained, when, in fact, the logs had not been maintained; (5)
personnel monitoring reports were available, when, in fact, the reports
had not been available.
b. With respect to the vendor-related activities, false ET
qualification certifications were deliberately generated by PI for at
least three employees who performed ET examinations at Perry and Cooper
nuclear power plants during 1993 and ET qualification certification
examination results and Personnel Certification Summaries were
generated for four employees, and these falsifications were condoned or
directed by the former President, former Vice President/RSO (i.e., Mr.
Mulkey), and the former Quality Assurance Manager.
In addition, Mr. Mulkey deliberately provided false information to
the NRC during a December 2, 1993 telephone discussion with a
representative of the NRC in that Mr. Mulkey stated he was the RSO, and
that in September of 1993 he had visited the Wexford office and
executed the duties of an RSO. These statements were false in that: (1)
Interviews with PI employees established that Mr. Mulkey had not
visited the Wexford office during 1993, and they were not aware of Mr.
Mulkey performing any audits related to radiographic operations out of
the Wexford office; and (2) Mr. Mulkey
[[Page 9219]]
indicated during the predecisional enforcement conference on October 2,
1996, that he left the position of RSO for the Wexford facility at the
end of 1992 to work in Florida. However, during the conference, Mr.
Mulkey also indicated that at the time he responded to the NRC in the
July 14, 1993 letter, he was the RSO and was responsible for compliance
with the license.
III
Based on the above, Mr. Mulkey, former Vice President and RSO of
PI, a licensee of the NRC, engaged in deliberate misconduct, a
violation of 10 CFR 30.10(a)(1), which caused PI to be in violation of
10 CFR 30.9(a). Specifically, as a result of Mr. Mulkey's actions, PI
violated 10 CFR 30.9(a) by providing to the NRC a letter dated July 14,
1993, which contained inaccurate information relating to whether
corrective actions had been taken in response to violations listed in
an NRC Notice of Violation dated June 16, 1993. Mr. Mulkey also engaged
in deliberate misconduct, a violation of 10 CFR 30.10(a)(2) by
deliberately providing false information to the NRC during the December
2, 1993 telephone discussion with a representative of the NRC.
Specifically, Mr. Mulkey stated he was the RSO, and that in September
of 1993 he had visited the Wexford office and executed the duties of an
RSO.
Moreover, Mr. Mulkey, an employee of PI, a contractor to licensees
of the NRC, engaged in deliberate misconduct, a violation of 10 CFR
30.10(a)(2), by deliberately submitting in March and in October 1993 to
the Cleveland Electric Illuminating Company (CEIC) and Nebraska Public
Power District (NPPD), both licensees of the NRC, ET qualification
certification examination results and Personnel Certification Summaries
which were inaccurate.
The NRC must be able to rely on its licensees and their 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. Mulkey's actions in causing the Licensee to be
in violation of NRC requirements and in deliberately violating NRC
requirements have raised serious doubt as to whether he can be relied
upon to comply with NRC requirements and to provide complete and
accurate information to both the NRC and NRC licensees.
Consequently, I lack the requisite reasonable assurance that
information provided to the NRC by Mr. Mulkey, or records required to
be maintained by the Licensee, will be complete and accurate in all
material respects if Mr. Mulkey were permitted to be involved in any
NRC-licensed activities. I also lack the requisite assurance that NRC-
licensed activities will be conducted safely or in accordance with NRC
requirements or that the health and safety of the public will be
protected if Mr. Mulkey were involved in NRC-licensed activities. In
addition, I find that Mr. Mulkey is either unable or unwilling to
assure that NRC requirements are being and will be followed.
Therefore, I find that the public health, safety, and interest
require that Mr. Mulkey be prohibited from involvement in NRC-licensed
activities for five years from the date of this Order, and if he is
currently engaged in NRC-licensed activities with another NRC licensee,
he must immediately cease such activities, and inform the NRC of the
name, address and telephone number of the employer. Furthermore,
pursuant to 10 CFR 2.202, I find that the significance of the
misconduct described above is such that the public health, safety, and
interest require that this Order be immediately effective.
IV
Accordingly, pursuant to sections 57, 62, 81, 103, 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, 30.10, 50.5, and 150.20,
It is hereby ordered, effective immediately, that:
A. Mr. James L. Mulkey is prohibited for five years from the date
of this Order from any involvement in NRC-licensed activities. For
purposes of this Order, licensed activities include the licensed
activities of: (1) an NRC licensee; (2) an Agreement State licensee
conducting licensed activities in NRC jurisdiction pursuant to 10 CFR
150.20; and (3) an Agreement State licensee involved in the
distribution of products that are subject to NRC jurisdiction. In
addition, if Mr. Mulkey is currently engaged in NRC-licensed activities
with another NRC licensee, he must immediately cease such activities,
and inform the NRC of the name, address and telephone number of the
employer.
B. The first time that Mr. Mulkey engages in an NRC-licensed
activity following the five year prohibition, he shall notify the
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, at least five days prior to the performance of
the licensed activity or his being employed to perform NRC-licensed
activities (as described in A. above). The notice shall include the
name, address, and telephone number of the employer or the entity where
he will be involved in the NRC-licensed activity. In the notification,
Mr. Mulkey shall include a statement of his commitment to compliance
with regulatory requirements and the basis as to why the Commission
should have confidence that he will now comply with applicable NRC
requirements.
The Director, Office of Enforcement (OE), may, in writing, relax or
rescind any of the above conditions upon demonstration by Mr. Mulkey of
good cause.
V
In accordance with 10 CFR 2.202, Mr. Mulkey 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. 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.
Mulkey or 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 I, 475
Allendale Road, King of Prussia, Pennsylvania 19406, and to Mr. Mulkey
if the answer or hearing request is by a person other than Mr. Mulkey.
If a person other than Mr. Mulkey 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. Mulkey 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.
[[Page 9220]]
Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Mulkey 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 at Rockville, Maryland this 18th day of February 1997.
For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program
Oversight, Investigations and Enforcement.
[FR Doc. 97-4998 Filed 2-27-97; 8:45 am]
BILLING CODE 7590-01-P
