[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Notices]
[Pages 25239-25240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12182]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[IA 98-002]
Mr. Thomas C. Johnson; Order Prohibiting Involvement in NRC-
Licensed Activities (Effective Immediately)
I
Mr. Thomas C. Johnson (Mr. Johnson) was formerly employed as a
contractor employee at the Niagara Mohawk Power Corporation (NMPC),
Nine Mile Point nuclear facility as a computer programmer. NMPC holds
Facility License Nos. DPR-63 and NPF-69 issued by the Nuclear
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50.
These licenses authorize NMPC to operate the Nine Mile Point
facilities, Units 1 and 2, in accordance with the conditions specified
therein.
II
In May 1996, NMPC initiated an investigation into whether Mr.
Johnson and others were involved in the alteration of a computer code
used to select individuals for random drug and alcohol testing. Based
on the evidence developed during the NMPC investigation, as well as a
subsequent review by the NRC Office of Investigations (OI), OI
concluded that Mr. Johnson and another contractor computer programmer
intentionally altered the fitness-for-duty (FFD) computer program to
ensure that certain individuals (including themselves) would be
excluded from random FFD screening. Specifically, a patch had been
inserted into the computer program to ensure certain individuals would
not be selected. Moreover, the two individuals planned and executed a
scheme (and a number of precautions) to elude detection and prevent
tracing. These actions caused NMPC to violate 10 CFR 26.24, which
requires that individuals be tested in a statistically random and
unpredictable manner. As a result of this violation, Mr. Johnson, the
other contractor, and others, were prevented from being selected for
random FFD testing.
Although Mr. Johnson, in an interview with NMPC investigators on
May 15, 1996, denied knowledge of this matter, during a subsequent
interview by NMPC investigators on May 22, 1996, Mr. Johnson admitted
that he was involved in a joint effort with another individual in
altering the computer program for FFD testing selection. Mr. Johnson
was offered an opportunity for an enforcement conference with the NRC,
but declined.
III
Based on the above, the NRC has concluded that Mr. Johnson engaged
in deliberate misconduct. Mr. Johnson's actions constitute a violation
of 10 CFR 50.5(a)(1), which prohibits an individual from engaging in
deliberate misconduct that causes or, but for detection, would have
caused, a licensee to be in violation of any rule, regulation, or
order, or any term, condition, or limitation of any license, issued by
the Commission. In this case, Mr. Johnson caused the Licensee to be in
violation of 10 CFR 26.24. Specifically,
10 CFR Part 26.24, requires, in part, that as a means to deter
and detect substance abuse, the licensee shall implement a testing
program that includes unannounced drug and alcohol testing that is
to be imposed in a statistically random and unpredictable manner so
that all persons in the population subject to the testing shall have
an equal probability of being selected and tested.
Contrary to the above, at some time prior to May 1996, Mr.
Johnson and another contractor computer programmer altered the FFD
computer program used to ensure that individuals were tested for
drugs and alcohol in a statistically random and unpredictable
manner, resulting in certain individuals being excluded from random
FFD screening. As a result, for a indeterminate period prior to May
1996, individuals were selected for testing in a manner that was not
statistically random and unpredictable.
The NRC must be able to rely on the Licensee, its contractors, and
the Licensee and contractor employees to comply with NRC requirements.
Mr. Johnson's action in altering the FFD program, and his collusion
with another individual to hide that alteration, constitute deliberate
violations of Commission regulations, and by doing so, raises serious
doubt as to whether he can be relied upon to comply with NRC
requirements and to provide complete and accurate information to NRC
Licensees and their contractors in the future, and raises doubt about
his trustworthiness and reliability.
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
would be protected if Mr. Johnson were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Mr. Johnson be prohibited from any
involvement in NRC-licensed activities for a period of five years from
the date of this Order. Additionally, for a period of three years after
the five year period of prohibition has expired, Mr. Johnson is
required to notify the NRC of his acceptance of each employment offer
involving NRC-licensed activities. Furthermore, pursuant to 10 CFR
2.202, I find that the significance of Mr. Johnson's conduct described
above is such that the public health, safety and interest require that
this Order be immediately effective.
IV
Accordingly, pursuant to sections 103, 161b, 161i, 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:
A. Thomas C. Johnson is prohibited from engaging in activities
licensed by the NRC for five years from the date of this Order. 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
pursuant to the authority granted by 10 CFR 150.20.
B. For a period of three years after the five year period of
prohibition has expired, Mr. Johnson shall, within 20 days of his
acceptance of each
[[Page 25240]]
employment offer involving NRC-licensed activities or his becoming
involved in NRC-licensed activities, as defined in Paragraph IV.A
above, provide notice to the Director, Office of Enforcement, U. S.
Nuclear Regulatory Commission, Washington, D.C. 20555, of the name,
address, and telephone number of the employer or the entity where he
is, or will be, involved in the NRC-licensed activities. In the first
notification, Mr. Johnson shall include a statement of his commitment
to compliance with regulatory requirements and the basis why the
Commission should have confidence that he will comply with applicable
NRC requirements.
The Director, OE, may, in writing, relax or rescind any of the
above conditions upon demonstration by Mr. Johnson of good cause.
V
In accordance with 10 CFR 2.202, Mr. Johnson 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. Johnson 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, Rulemakings 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, U.S.
Nuclear Regulatory, 475 Allendale Road, King of Prussia, Pennsylvania
19406, and to Mr. Johnson if the answer or hearing request is by a
person other than Mr. Johnson. If a person other than Mr. Johnson
requests a hearing, that person shall set forth with particularity the
manner in which that person's 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. Johnson 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. Johnson 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 28th day of April 1998.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 98-12182 Filed 5-6-98; 8:45 am]
BILLING CODE 7590-01-P
