[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Notices]
[Pages 28521-28523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13600]
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NUCLEAR REGULATORY COMMISSION
[IA 97-026]
David F. Johns, P.E., Dover, Delaware; Order Prohibiting
Involvement in NRC-Licensed Activities (Effective Immediately)
I
David F. Johns, P.E., is the Owner/President, and Radiation Safety
Officer at Capital Engineering Services, Inc. (Licensee), an NRC
licensee who is the holder of Byproduct Nuclear Material License No.
07-30056-01 (License) issued by the Nuclear Regulatory Commission (NRC
or Commission) pursuant to 10 CFR Part 30. The License authorizes
possession and use of moisture/density gauges containing sealed
sources. The License was originally issued on September 14, 1993, and
is due to expire on September 30, 1998.
On February 12, 1996, the License was suspended by an NRC Order for
nonpayment of fees. However, on May 17, 1996, the NRC issued a
Conditional Order Extending Time that granted the Licensee's request to
pay the delinquent fees in twelve monthly installment payments and
extended the effective date of the February 12, 1996 Order to March 15,
1997. In addition, the Conditional Order stated that, in the event the
Licensee fails to pay an installment during the 12-month period, each
and every term and condition set forth in the February 12, 1996 Order
will become immediately effective without further notice. The Licensee
failed to make the first installment due June 15, 1996, after the
Conditional Order was issued. Accordingly, on June 16, 1996, the terms
of the February 12, 1996 ``Order Suspending License'' again became
effective.
II
On October 30, 1996, November 19, 1996, February 20, 1997, and
March 5, 1997, the NRC conducted an inspection at the Licensee's
facility in Dover, Delaware. During the inspection, the inspector
determined that the Licensee had continued to use licensed radioactive
material after issuance of the NRC Order Suspending the License on
February 12, 1996. Specifically, the Licensee used licensed material on
numerous occasions between February 12, 1996, and May 16, 1996, before
the Conditional Order Extending Time was granted, a violation of
Condition A of the February 12, 1996 Order and 10 CFR 30.3.
Additionally, the Licensee continued to use the gauges on numerous
occasions after June 16, 1996, the date on which the Order Suspending
License once again became effective because of the licensee's failure
to pay the first fee installment required by the May 17, 1996 Order
Extending Time, a violation of Condition A of the February 12, 1996
Order and 10 CFR 30.3.
On October 2, 1996, the NRC issued to the Licensee a letter
reiterating that, given the Licensee's failure to abide by the
installment plan, the License had been suspended as specified in the
February 12, 1996 Order Suspending License. During an NRC inspection on
October 30, 1996, the Licensee informed the NRC inspector that it
continued to use licensed material because it had not received the
October 2, 1996 letter until October 28, 1996.
As a result, the NRC issued a Confirmatory Action Letter (CAL) to
the Licensee on November 1, 1996, which confirmed the Licensee's
commitments to cease use and/or receipt of licensed material. The CAL
references a telephone conversation between Mr. David Johns, the
Licensee's President, and Mr. Frank Costello, NRC Region I, that took
place on October 31, 1996, in which Mr. Johns agreed to the terms of
the CAL.
Concurrently with NRC inspection, the NRC Office of Investigations
(OI) conducted an investigation of these matters. During the
investigation, Mr. Johns stated that he did not recall receiving by
mail, or being informed of, the February 12, 1996 Order. However, Mr.
Johns recalled requesting from the NRC that an installment plan be
established for payment of the delinquent inspection and annual fees.
When questioned as to why the Licensee continued to use licensed
material after Mr. Johns failed to make the installment due June 15,
1996, Mr. Johns stated that he forgot about the language in the May 17,
1996 Conditional Order (i.e., should the Licensee fail to pay an
installment during the 12-month period, each and every term and
condition set forth in the February 12, 1996 Order will become
immediately effective without further notice).
As to his agreement to the terms of the CAL, Mr. Johns stated that
he recalled the October 31, 1996 telephone conversation, but he
understood that once he fully paid the outstanding debt, he could use
the gauges. Mr. Johns, however, did not pay the outstanding debt
1 and, yet, allowed continued use of licensed material on
numerous occasions from October 29 to, at least, November 19, 1996, a
violation of Condition A of the February 12, 1996 Order and 10 CFR
30.3. In addition, based on the OI investigation and inspection
findings, the NRC determined that the Licensee failed to test sealed
sources for leakage and/or contamination, a violation of License
Condition 13.
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\1\ By Check No. 2054 dated November 20, 1996, the Licensee paid
$531.16. However, the check did not clear due to insufficient funds.
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On April 10, 1997, an enforcement conference was scheduled with the
Licensee. However, the Licensee failed to appear for the enforcement
conference. In a subsequent telephone conversation between Mr. Johns
and Mr. R. Blough, Director, Division of Nuclear Materials Safety, NRC
Region I, Mr. Johns indicated that he was not planning to attend the
conference. During that telephone conversation, Mr. Johns was also
informed that the NRC would proceed with appropriate enforcement
action.
III
Based on the above, the NRC has concluded that Mr. Johns engaged in
deliberate misconduct, a violation of 10 CFR 30.10(a)(1), by causing
the Licensee to be in violation of Condition A of the February 12, 1996
Order and 10 CFR 30.3. This conclusion is: (1) based on the Licensee's
continued use of licensed material in violation of NRC
[[Page 28522]]
requirements despite Mr. Johns receiving numerous written
communications that specifically informed him of the License
suspension; and (2) supported by the fact that Mr. Johns requested from
the NRC that an installment plan be established to remove the
suspension of the License; Mr. Johns recalled the October 31, 1996
telephone conversation in which he was specifically informed that the
License was suspended and in which he agreed not to use licensed
material; and Mr. Johns failed to ensure that the Licensee paid the
outstanding debt before permitting resumption of licensed material use.
In addition, as the Licensee's Radiation Safety Officer, Mr. Johns
failed to ensure that the Licensee tested sealed sources for leakage
and/or contamination, a violation of License Condition 13.
Given Mr. Johns' deliberate misconduct, and Mr. Johns' failure to
ensure that the Licensee complied with other NRC requirements, the NRC
no longer has the necessary assurance that Mr. Johns, should he engage
in NRC-licensed activities under any other NRC license, would perform
NRC-licensed activities safely and in accordance with NRC requirements.
Consequently, I lack the requisite reasonable assurance that NRC-
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. Johns were permitted at this time to be
involved in NRC-licensed activities.
Therefore, the public health, safety and interest require that Mr.
Johns be prohibited from any involvement in NRC-licensed activities for
a period of three years from the date of this Order, and if he is
currently involved with another licensee in NRC-licensed activities, he
must immediately cease such 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. Mr. Johns is also required, for a period of
three years from the date of this Order, to provide a copy of this
Order to any prospective employer who engages in NRC-licensed
activities prior to his acceptance of employment involving non-NRC-
licensed activities with such prospective employer. Additionally, for a
period of three years following the three-year prohibition, the first
time Mr. Johns is employed in NRC-licensed activities, Mr. Johns is
required to notify the NRC of his first employment in NRC-licensed
activities. Furthermore, pursuant to 10 CFR 2.202, I find that the
significance of Mr. Johns 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, and 161o of the
Atomic Energy Act of 1954, as amended, and the Commission's regulations
in 10 CFR 2.202 and 10 CFR 30.10, and 10 CFR 150.20, It is hereby
ordered that, effective immediately:
1. For a period of three years from the date of this Order, Mr.
Johns is prohibited 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 in
areas of NRC jurisdiction pursuant to the authority granted by 10 CFR
150.20.
2. For a period of three years from the date of this Order, Mr.
Johns shall provide a copy of this Order to any prospective employer
who engages in NRC-licensed activities (as described in Paragraph IV.1
above) prior to his acceptance of employment involving non-NRC-licensed
activities with such prospective employer. The purpose of this
requirement is to ensure that the employer is aware of Mr. Johns'
prohibition from engaging in NRC-licensed activities.
3. For a period of three years following the three-year
prohibition, the first time Mr. Johns is employed in NRC-licensed
activities, Mr. Johns shall notify the Regional Administrator, NRC
Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406-1415,
prior to engaging in NRC-licensed activities, including activities
under an Agreement State license when activities under that license are
conducted in areas of NRC jurisdiction pursuant to 10 CFR 150.20. The
notice shall include the name, address, and telephone number of the NRC
or Agreement State licensee and the location where licensed activities
will be performed.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by the Licensee
of good cause.
V
In accordance with 10 CFR 2.202, Mr. Johns 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. Johns 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: Rulemaking and Adjudications Staff, 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 19406-1415, to Mr. Johns if the answer or hearing
request is by a person other than Mr. Johns. If a person other than Mr.
Johns 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. Johns 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. Johns 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
[[Page 28523]]
HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.
Dated at Rockville, Maryland this 15th day of May 1997.
For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program
Oversight, Investigations and Enforcement.
[FR Doc. 97-13600 Filed 5-22-97; 8:45 am]
BILLING CODE 7590-01-P
