2014-05794. In the Matter of Michael P. Cooley; Order Prohibiting Involvement in NRC-Licensed Activities

I

Michael P. Cooley is a former Environmental Health and Safety Specialist, for Shaw, Stone & Webster (Shaw) at South Carolina Electric & Gas Company's Virgil C. Summer Nuclear Station (Licensee). The licensee is the holder of License No. NPF-12 issued by the U.S. Nuclear Regulatory Commission (NRC) pursuant to Part 50 of Title 10 of the Code of Federal Regulations (10 CFR) on August 6, 1982, and renewed on April 23, 2004. The license authorizes the operation of the Virgil C. Summer Nuclear Station (facility) in accordance with the conditions specified therein. The facility is located on the licensee's site in Jenkinsville, South Carolina.

II

On January 16, 2013, an investigation was completed by the NRC's Office of Investigations (OI). The purpose of the investigation was to review the facts and circumstances surrounding Mr. Michael P. Cooley's actions with respect to his completion of a V. C. Summer Personnel History Questionnaire (PHQ) to obtain unescorted access authorization (UAA) to the facility.

In Section III of the PHQ titled “Criminal History Self-Disclosure,” Mr. Cooley answered “no” to a question that, in part, asked, “Have you ever been held, detained, taken into custody, charged, arrested, indicted, convicted for a violation of law, regulation, or ordinance (e.g., felony, misdemeanor, traffic, etc.), or do you have such a case pending or currently under indictment, on probation, parole, work release, or subject to any other control of court?”

During the subsequent background investigation conducted by the licensee in August and September 2010, a criminal record search returned a U.S. Federal Bureau of Investigation (FBI) record dated August 31, 2010, which revealed Mr. Cooley had been arrested on March 17, 2010, in Lucedale, Mississippi and charged with four counts of arson. The FBI record also revealed that the arson charges had been bound over to a grand jury in Mississippi, and were pending at the time Mr. Cooley completed the PHQ. The licensee's access authorization staff questioned Mr. Cooley about the failure to list the arrest and charges on the PHQ. Mr. Cooley explained his lawyer said there was no need to list the arrest because the charges were dismissed. The licensee's access staff accepted this explanation and asked Mr. Cooley to provide a document showing the charges were dismissed. Mr. Cooley fabricated a document that falsely stated the arson charges had been dismissed and he submitted it to the licensee's access authorization staff. The access authorization staff reviewed and adjudicated the forged document and found it acceptable. Mr. Cooley was granted the UAA to the V. C. Summer Nuclear Station. Mr. Cooley was employed at the site from August 30, 2010 until March 3, 2011, when the licensee learned the arson charges had not been dismissed, but were still pending. Mr. Cooley was terminated.

During questioning by the OI, Mr. Cooley admitted he was deliberately untruthful when answering “no” to the criminal history question in the PHQ, and admitted to deliberately fabricating the court record to conceal potentially disqualifying information.

In a letter dated June 5, 2013, the NRC provided Mr. Cooley the results of the OI investigation. The letter informed Mr. Cooley the NRC was considering escalated enforcement action against him for: (1) The deliberate failure to disclose an arrest for arson in the PHQ criminal history, information that was necessary for access staff to consider in making determinations regarding his trustworthiness and reliability, in apparent violation of 10 CFR 73.56(d)(2); and (2) the deliberate submittal of information he knew to be incomplete or inaccurate, in apparent violation of the requirements of 10 CFR 50.5(a)(2). Specifically, to support his assertion that arson charges had been dismissed, Mr. Cooley submitted a forged document dated September 14, 2010, that falsely stated arson charges had been dismissed by a Mississippi county court. At the time the document was submitted to the licensee's access authorization staff, the arson charges were pending. This information was material because it formed the basis for the licensee's determination that Mr. Cooley was trustworthy, reliable, and suitable for the granting of UAA. The NRC regulations at 10 CFR 73.56(c) require that licensees provide high assurance that individuals granted unescorted access are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety, or the common defense and security, including the potential to commit radiological sabotage.

The NRC's letter dated June 5, 2013, offered Mr. Cooley a choice to respond to the apparent violations within 30 days of the date of that letter, to attend a Predecisional Enforcement Conference, or to request Alternative Dispute Resolution (ADR) and the use of mediation to resolve any possible disagreement over: (1) Whether the violation occurred; and (2) the appropriate enforcement action. During a telephone conversation with the NRC's representatives on June 14, 2013, Mr. Cooley stated that he did not intend to provide a written response or request a Predecisional Enforcement Conference or ADR.

III

Based on the above, the NRC has concluded that Mr. Michael P. Cooley, a former Environmental Health and Safety Specialist for Shaw, Stone & Webster (Shaw) at South Carolina Electric & Gas Company's Virgil C. Summer Nuclear Station, engaged in deliberate misconduct that resulted in a violation of the requirements at 10 CFR 73.56(d)(2). In addition, Mr. Cooley deliberately submitted to the licensee information that he knew to be incomplete or inaccurate in some respect material to the NRC, in violation of the NRC regulations at 10 CFR 50.5(a)(2). Mr. Cooley's deliberate misconduct put the License in violation of 10 CFR 73.56 and 10 CFR 50.9.

The NRC must be able to rely on a licensee, its employees, and contractors to comply with the NRC's requirements, including the requirement that information provided to the NRC be complete and accurate in all material respects. Mr. Cooley's misstatements on his PHQ and his preparation and submission of a fabricated court document caused the licensee to violate 10 CFR 73.56(d)(2) and 10 CFR 50.9. Mr. Cooley's deliberate misconduct raises serious doubt as to whether he can be relied upon to comply with the NRC's regulatory requirements and to provide complete and accurate information to the NRC.

Consequently, I lack reasonable assurance that licensed activities can be conducted in compliance with Commission requirements and that the health and safety of the public will be protected, if Mr. Cooley were permitted to be involved in NRC-licensed activities. Therefore, the public health and safety, and the common defense and security of the nation require that Mr. Cooley be prohibited from any involvement in NRC-licensed activities for a period of 5 years following the effective date of this Order. Additionally, Mr. Cooley is required to notify the NRC if he is employed in NRC-licensed activities following the 5-year prohibition period; this restriction is for a period of 1 year.

IV

Accordingly, pursuant to Sections 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, 10 CFR 50.5, and 10 CFR 150.20, it is hereby ordered, effective immediately, that:

1. Mr. Cooley is prohibited for a period of 5 years, from the effective date of this Order, from engaging in NRC-licensed activities. NRC-licensed activities are activities conducted pursuant to a specific or general license issued by the NRC, including, but not limited to, activities of Agreement State licensees conducted pursuant to the authority granted by 10 CFR 150.20.

2. This Order shall be effective 30 days following its issuance and shall remain in effect for a period of 5 years.

3. If Mr. Cooley is currently involved with NRC-licensed activities, he must immediately cease those activities, and inform the NRC of the name, address and telephone number of his employer, and provide a copy of this Order to the employer.

4. For a period of 1 year after the 5-year period of prohibition has expired, Mr. Cooley shall, within 30 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, 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 NRC-licensed activities. In the notification, Mr. Cooley shall include a statement of his commitment to compliance with regulatory requirements and the basis for why the Commission should have confidence that he will now comply with the applicable NRC's requirements.

The Director, Office of Enforcement, or designee, may, in writing, relax or rescind any of the above conditions upon demonstration by Mr. Cooley of good cause.

V

Mr. Michael P. Cooley is not required to respond to this Order; however, if he chooses to respond, he must submit a written answer to this Order under oath or affirmation within 30 days of issuance in accordance with 10 CFR 2.202.

Any person adversely affected by this Order may submit a written answer to this Order within 30 days of its issuance. In addition, Mr. Cooley, and any other person adversely affected by this Order, may request a hearing on this Order within 30 days of its issuance date. 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 made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 and include a statement of good cause for the extension.

All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.

To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at [e-mail], or by telephone at 301-415-1677, to (1) request a digital identification (ID) certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRC-issued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the Secretary has not already established an electronic docket.

Information about applying for a digital ID certificate is available on the NRC's public Web site at http://www.nrc.gov/​site-help/​e-submittals/​apply-certificates.html. System requirements for accessing the E-Submittal server are detailed in the NRC's “Guidance for Electronic Submission,” which is available on the NRC's public Web site at http://www.nrc.gov/​site-help/​e-submittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC's E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software.

If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's public Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at http://www.nrc.gov/​site-help/​e-submittals.html.

Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at http://www.nrc.gov/​site-help/​e-submittals.html. A filing is considered complete at the time the documents are submitted through the NRC's E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing 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 email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC's 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 documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request or petition to intervene is filed so that they can obtain access to the document via the E-Filing system.

A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at http://www.nrc.gov/​site-help/​e-submittals.html,, by email to [e-mail], or by a toll-free call to 1-866-672-7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays.

Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, 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. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.

Documents submitted in adjudicatory proceedings will appear in the NRC electronic hearing docket, which is available to the public at http://ehd1.nrc.gov/​ehd/​,, unless excluded pursuant to an order of the Commission or the 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, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, participants are requested not to include copyrighted materials in their submission, except for limited excerpts that serve the purpose of the adjudicatory filings and constitute a Fair Use application.

If a person other than Mr. Cooley requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).

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. 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 30 days from the issuance date 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.

Dated at Rockville, Maryland, this 10th day of March 2014.

For the Nuclear Regulatory Commission.

Roy P. Zimmerman,

Director, Office of Enforcement.