02-23361. Brian J. McKenna; Demand for Information

Brian J. McKenna, is employed as manager of radiography activities at Engineering & Inspections Unlimited, Inc. in the State of Hawaii. Engineering & Inspections Unlimited, Inc. (Licensee), a radiography licensee of the state of Florida, on May 7, 2002, filed an NRC Form 241, “Report of Proposed Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore Waters,” notifying the NRC of its intent to conduct radiography activities at numerous locations in the state of Hawaii, a Non-Agreement State. On August 1, 2002, Engineering & Inspections Unlimited, Inc. filed a revised NRC Form 241, notifying the NRC of additional locations at which it intended to conduct radiography activities in Hawaii. In accordance with 10 CFR 150.20, “Recognition of Agreement State licenses,” a specific licensee of an Agreement State is granted a general license to perform the same activity in Non-Agreement states where NRC maintains jurisdiction provided the licensee complies with 10 CFR 150.20(b). Thus, the Licensee is currently performing radiography activities in Hawaii under a general license.

On April 22, 2002, NRC Region IV conducted an unannounced inspection of Engineering & Inspections Hawaii, doing business as Testing Technologies, Inc. (TTI), at a temporary job site in Kapolei, Hawaii. Engineering & Inspections Hawaii was performing activities under an NRC license issued to TTI. TTI, based in Woodbridge, Virginia and the holder of NRC License No. 45-25007-01, is licensed to conduct radiography activities at temporary job sites anywhere the NRC has jurisdiction. Based on the discovery of apparent willful violations of NRC requirements, on April 24, 2002, NRC's Office of Investigations (OI) began an investigation of activities being conducted in Hawaii under TTI's license. On May 1, 2002, NRC's Region II office in Atlanta, Georgia, issued a confirmatory action letter to TTI confirming TTI's commitment to take several remedial actions before radiography activities were resumed in Hawaii. As discussed above, on May 7, 2002, Engineering & Inspections Unlimited, Inc., a State of Florida licensee, filed with NRC to perform radiography activities in Hawaii under the reciprocity provisions of 10 CFR 150.20. Thus, Engineering & Inspections Hawaii's activities in Hawaii are no longer being conducted under TTI's NRC license.

The preliminary results of the OI investigation include a finding that Brian J. McKenna engaged in deliberate misconduct, as defined by 10 CFR 30.10. Specifically, the investigation found that Brian J. McKenna had on numerous occasions dispatched radiographer's assistants and helpers to conduct radiography without their being accompanied by a certified radiographer who was trained and certified in accordance with the training requirements of 10 CFR 34.43. Brian J. McKenna first denied dispatching non-certified radiographers to conduct radiography, but admitted after being shown records of specific radiography jobs that he had assigned non-certified radiographers to conduct radiography because of a shortage of qualified personnel.

The investigative evidence developed to date demonstrates a lack of regard for NRC's radiation safety requirements by Brian J. McKenna. He currently manages radiography activities for Engineering & Inspections Unlimited, Inc.'s in Hawaii, supervises the individual who dispatches radiographers to job sites, and is authorized to perform radiography. This situation raises questions as to why the NRC should have reasonable assurance that Engineering & Inspections Unlimited, Inc.'s radiography activities in Hawaii are being conducted in accordance with all NRC radiation safety requirements.

Accordingly, pursuant to sections 161b, 161c, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204, the Commission needs the following information to determine whether enforcement action should be taken against you to ensure future compliance with NRC requirements:

A. Information as to why the NRC should have reasonable assurance that radiography activities being conducted by Engineering & Inspections Unlimited, Inc., under your management are being conducted in accordance with all NRC radiation safety requirements; and

B. Information as to why the NRC should not take enforcement action to prohibit your involvement in NRC-licensed activities.

You may provide any other information that you want the NRC to consider, including whether the statements made in Section II are correct. You may respond to this Demand for Information by filing a written answer under oath or affirmation or by setting forth your reasons why this Demand for Information should not have been issued if the requested information is not being provided. The response to this Demand for Information is to be submitted to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, within 10 days of the date of this Demand for Information, in writing and under oath or affirmation. Copies also shall be sent to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011-4005, and the Regional Administrator, NRC Region II, Atlanta Federal Center, 61 Forsyth St., Atlanta, Georgia 30303.

Upon review of your answer, or if no answer is filed, the Commission may institute a proceeding pursuant to 10 CFR 2.202 or take such other action as may be necessary to ensure compliance with regulatory requirements. Your response to the Demand for Information will be considered before a decision is made in this matter. However, if no answer is filed, we will proceed on the basis of available information.

If you choose to respond, your response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at http://www.nrc.gov/​reading-rm/​adams.html (the Public Electronic Reading Room). Therefore, to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information).

Dated this 5th day of September 2002.

For the Nuclear Regulatory Commission.

James G. Luehman,

Deputy Director, Office of Enforcement.