[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7208]
[Federal Register: March 28, 1994]
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NUCLEAR REGULATORY COMMISSION
[EA 93-236]
Order Requiring the Removal of An Individual From NRC-Licensed or
Regulated Activities and Order Directing Review of Personnel Security
Files (Effective Immediately)
In the matter of: Nuclear Support Services, Inc. Hershey, PA.
I
Nuclear Support Services, Inc. (NSSI) of Hershey, Pennsylvania,
provides health physics personnel and support to various nuclear power
plants. To perform these services, these NSSI personnel require
unescorted access authorization to NRC-licensed or regulated nuclear
power plants. As of January 3, 1990, the provisions of the NRC Fitness-
For-Duty (FFD) rule (10 CFR part 26) became effective for personnel
(including contractors) granted unescorted access authorization to
nuclear power plants.
II
Mr. Robert C. Dailey was the NSSI Security Officer from November
1989 to May 1991. While in that position, Mr. Dailey provided letters
to NRC reactor licensees requesting unescorted access authorization for
NSSI personnel and certifying that these personnel met all applicable
FFD and access authorization requirements. A licensee's granting of
unescorted access authorization to NSSI personnel who did not meet the
FFD requirements would constitute a violation of 10 CFR part 26
requirements.
On August 14, 1991, two NRC licensees (Northern States Power
Company (NSP) and Wisconsin Electric Power Company (WEPC)) submitted
Licensee Event Reports to the Commission because an NSSI employee had
been improperly granted unescorted access to the NSP Prairie Island
plant and the WEPC Point Beach plant based on written requests for such
access from Mr. Dailey. These requests stated that the employee met all
of the FFD requirements for unescorted access. However, in fact, the
employee had four past drug-related access denials at other nuclear
power plants since 1987. Both Licensee Event Reports noted that NSSI
was aware of the past denials.
An NSSI letter dated August 8, 1991, from Fred H. Ershine, NSSI
Senior Vice President and Chief Operating Officer, to Mr. Thomas R.
Eells, Security Representative for WEPC, stated that the incident that
required WEPC to submit a report to the NRC was caused by the former
NSSI Security Officer not properly documenting or following up on the
report of derogatory information and/or materials concerning prior FFD
violations with the appropriate individuals at each nuclear plant.
An investigation was initiated by the NRC Office of Investigations
(OI). The OI investigation concluded that Mr. Dailey had sent on three
occasions to Point Beach, and one occasion to Prairie Island, letters
stating that the person for whom he was requesting unescorted access
had met all applicable FFD requirements and had no previous positive
drug or alcohol use test results within the previous five years. The OI
investigation concluded that the letters sent by Mr. Dailey were
inaccurate because the person did have positive drug or alcohol use
test results.
Despite what was contained in the access authorization request
letters, Mr. Dailey told the OI investigator during a January 1993
interview that he had verbally advised the appropriate NSP and WEPC
security personnel of the past positive test results. These licensee
representatives denied being advised of such information. In Mr.
Dailey's statement to the OI investigator, which was subsequently
determined to be false, Mr. Dailey deliberately provided to the NRC
investigator material information that he knew was inaccurate. This
constitutes a violation of 10 CFR 50.5(a)(2).
In addition, WEPC and NSP notified NRC in LERs dated August 14,
1991 that several individuals were recommended by NSSI for unescorted
access without revealing their past access denials or past positive
drug/alcohol tests.
III
Mr. Dailey, as the NSSI security manager, was responsible for the
administration of the NSSI security screening program including
determining the qualifications of applicants for unescorted access into
the protected and vital areas of NSSI's client-owned nuclear power
plants and for requesting such access from NSSI's clients. In the
matters described in section II of this Order, Mr. Dailey was acting
for and on behalf of NSSI. As such, his actions are imputed to NSSI
since a corporation can only act through its agents and employees.
Therefore, Mr. Dailey and NSSI violated 10 CFR 50.5.
The NRC must be able to rely on licensee contractors and contractor
personnel, in addition to licensees, to comply with NRC requirements
including the requirement to provide information and maintain records
that are complete and accurate in all material respects. Mr. Dailey's
violation of 10 CFR 50.5 has 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, an employer, or a licensee with
regard to NRC-licensed or regulated activities. Consequently, I lack
the requisite assurance that NRC-licensed and regulated activities can
be conducted by Mr. Dailey in compliance with the Commission's
requirements. Therefore, I find that the significance of the conduct
described above is such that the public health, safety, and interest
require that NSSI be directed to remove Mr. Dailey from participation
in NRC-licensed or regulated activities for a period of five years from
the date of this Order, effective immediately.
In addition, the conduct of Mr. Dailey raises serious concerns
about the adequacy of the NSSI security screening program during his
tenure as Security Officer (November 1989 to May 1991). Therefore, the
public health, safety and interest require that we order NSSI to review
security records in which Mr. Dailey was involved to assure that NSSI
personnel granted unescorted access to NRC-licensed nuclear plants met
access authorization and fitness-for-duty requirements.
IV
Accordingly, pursuant to sections 62, 63, 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, 10 CFR 26.27 and 10 CFR
50.5, it is hereby ordered, effective immediately, that:
A.1. Nuclear support Services, Inc., remove Robert C. Dailey from
participation in NRC-licensed or regulated activities for a period of
five years from the date of this Order.
A.2. Nuclear Support Services, Inc., shall, if contacted by another
person considering employing Robert C. Dailey in NRC-licensed or
regulated activities, advise that person of the existence of condition
A. 1 of this order as well as the existence and conditions of the Order
issued to Mr. Dailey. This condition is to remain in effect for a
period of five years from the date of this Order.
B.1. Nuclear Support Services, Inc., shall notify the NRC of the names
of licensees who employ or have employed NSSI personnel whose
recommendation for access authorization was handled by Mr. Dailey or by
NSSI during Mr. Dailey's tenure as NSSI Security Officer between
November 1989 and May 31, 1991.
B.2. Nuclear Support Services, Inc., shall complete a review of all
NSSI personnel security files processed during the period of November
1989 through May 31, 1991, to ensure that, based upon the information
in the files, any NSSI personnel recommended for unescorted access to
NRC-licensed nuclear plants during that period met applicable 10 CFR
part 26 Fitness-for-Duty requirements and access authorization
requirements for unescorted access in accordance with requirements
applicable to NSSI's clients' security plans as prescribed in such
clients' contracts with NSSI.
B.3. Nuclear Support Services, Inc., shall advise the NRC, in writing,
of the results of the review required by conditions B.1 and 2. within
60 days of the date of this Order.
B.4. Nuclear Support Services, Inc., shall also, within 7 days of
NSSI's discovery, advise the appropriate nuclear power plant licensees
and the NRC of any personnel identified during the review described
above who were recommended for unescorted access authorization by NSSI
but did not meet part 26 requirements or access authorization
requirements at the time the NSSI request was submitted to the
licensee.
B.5. Nuclear Support Services, Inc. shall provide an audit plan to the
NRC, to verify the accuracy of information obtained by NSSI in its
background inquiries which formed the basis for its access decisions
during the period from November 1989 to May 31, 1991. The plan shall be
submitted within 30 days of the date of this Order and include the
sample size, the milestones and schedule for completing the audit,
qualifications of the auditors, and the basis for concluding that the
audit plan will provide assurance that NSSI's records are complete and
accurate. Following NRC approval of the plan, it shall be implemented.
The results of the audit shall be provided to the applicable licensees
and the NRC within 7 days of the completion of the audit.
B.6. Submittals to the NRC required by the above conditions shall be
provided to the Chief, Safeguards Branch, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
with a copy to the Regional Administrator, Region III.
The Director, Office of enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Nuclear
Support Services, Inc., of good cause.
V
In accordance with 10 CFR 2.202, Nuclear Support Services, Inc.,
must, and Robert C. Dailey or 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 Nuclear
Support Services, Inc., Robert C. Dailey, 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 III, 801 Warrenville Road, Lisle, IL 60532-
4351, and to Nuclear Support Services, Inc., if the answer or hearing
request is by a person other than Nuclear Support Services, Inc. If a
person other than Nuclear Support Services, Inc., or Robert C. Dailey
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 Nuclear Support Services, Inc., Robert
C. Dailey, or any other 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), Nuclear Support Services, Inc.,
Robert C. Dailey 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 a portion of the Order on the ground that the Order,
including the need for immediate effectiveness for a part of the Order,
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 a
hearing shall not stay the immediately effective part of this order.
Dated at Rockville, Maryland this 22nd day of March 1994.
For the Nuclear Regulatory Commission.
James L. Milhoan,
Deputy Executive Director for Nuclear Reactor Regulation, Regional
Operations and Research.
[FR Doc. 94-7208 Filed 3-25-94; 8:45 am]
BILLING CODE 7590-01-M
