[Federal Register Volume 59, Number 54 (Monday, March 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6559]


[[Page Unknown]]

[Federal Register: March 21, 1994]


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NUCLEAR REGULATORY COMMISSION
[IA 94-001]

 

In the Matter of Hartsell S. Phillips, Order Prohibiting 
Involvement in NRC-Licensed Activities (Effective Immediately)

I

    Hartsell S. Phillips is employed by Logan General Hospital, Logan, 
West Virginia. Logan General Hospital (Licensee) holds License No. 47-
19919-01 issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR Parts 30 and 35. The license authorizes 
possession and use of byproduct material in accordance with the 
conditions specified therein. Mr. Phillips has been employed by the 
Licensee since approximately June 1991 as the Chief technologist, 
Radiation Safety Officer (RSO), and Chairman of Radiation Safety 
Committee with responsibilities involving compliance with NRC 
requirements for radiation protection. Mr. Phillips was removed as 
Chairman of the Radiation Safety Committee on January 1, 1994, and 
removed as RSO on February 18, 1994. On February 22, 1994, the Licensee 
informed the NRC that it has suspended, subject to termination, Mr. 
Phillips on February 18, 1994, based on information the Licensee had 
received through interviews with its staff and other information 
developed by the Licensee.

II

    On December 7-8, 1993, an NRC inspection was conducted at the 
Licensee's facility in Logan, West Virginia. As a result of information 
developed during that inspection, an investigation by the Office of 
Investigations (OI) was initiated in January 1994. Although this 
investigation is continuing, OI interviews of Licensee personnel and 
review of documents provided by OI reveal that nuclear medicine 
technologists under Mr. Phillips' supervision and at his direction, and 
Mr. Phillips himself, deliberately increased radiopharmaceutical 
dosages administered to patients above the dosages prescribed by the 
authorized user and set forth in the Licensee's procedures manual, and 
falsified the dosage records of those patients by making them appear as 
if the prescribed dosages had been administered. The OI interviews 
indicate that this practice of increasing dosages and of falsifying 
records continued for an extended period of time. The exact number of 
patients affected in not clear, but involved numerous administrations.
    In addition, Mr. Phillips falsified records and directed nuclear 
medicine technologists under his supervision to falsify records 
relating to: training of nuclear medicine technologists, required by 10 
CFR 19.12; daily dose calibrator constancy checks, required by 10 CFR 
35.50(b)(1); daily and weekly surveys in nuclear medicine areas, 
required by 10 CFR 35.70 (a), (b), and (e); and surveys related to the 
receipt and shipment of licensed material, required by 10 CFR 20.205(d) 
and License Condition 16. Specifically, these records indicated that 
the training, checks and surveys had been performed when in fact they 
had not been performed. The records falsification occurred for an 
extended period of time and may have been as long as 15 months during 
1992 and 1993, and involved the falsification of records for surveys 
and training in nuclear medicine required during this period of time. 
The investigation also revealed that Mr. Phillips specifically 
instructed one nuclear medicine technologist to deny having falsified 
records and advised others to be untruthful when questioned by NRC 
inspectors.

III

    Although the NRC investigation is continuing, based on the above, 
Mr. Phillips engaged in deliberate misconduct, a violation of 10 CFR 
30.10, which caused the Licensee to be in violation of a number of NRC 
requirements including: (1) Administration of radiopharmaceutical doses 
that differed from the prescribed doses, required by 10 CFR 35.25 and 
License Condition 16; (2) failure to provide training to nuclear 
medicine technologists, required by 10 CFR 19.12; (3) failure to 
perform the daily constancy checks of the doses calibrator, required by 
10 CFR 35.50(b)(1); (4) failure to perform the required daily and 
weekly contamination and radiation surveys, required by 10 CFR 35.70 
(a), (b), and (e); (5) failure to perform the required surveys for 
radioactive material receipt, required by 10 CFR 20.205(d) and License 
Condition 16; and (6) failure to maintain accurate and complete records 
involving NRC-licensed activities (i.e., records of dose calibrator 
constancy checks (10 CFR 35.50(e)), radiation and contamination surveys 
(10 CFR 35.70 (a), (b), and (h), and 10 CFR 20.401 (b) and (c)), 
required by 10 CFR 30.9. Mr. Phillips also deliberately provided NRC 
inspectors information he knew to be inaccurate which was material to 
the NRC, also in violation of 10 CFR 30.10, which caused the Licensee 
to be in violation of 10 CFR 30.9.
    As the RSO for the Licensee, Mr. Phillips was responsible, pursuant 
to 10 CFR 35.21(a), for ensuring that radiation safety activities were 
being performed in accordance with approved procedures and regulatory 
requirements, including the administration of radiopharmaceuticals, 
performance of required surveys, and keeping of required records which 
evidence compliance with Commission requirements. The NRC must be able 
to rely on the Licensee and its employees to comply with NRC 
requirements, including the requirement to provide information and 
maintain records that are complete and accurate in all material 
respects. Mr. Phillips engaged in deliberate misconduct, a violation of 
10 CFR 30.10(a)(1), causing the Licensee to be in violation of NRC 
requirements, as noted above, and submitted to the NRC information he 
knew to be incomplete or inaccurate, a violation of 10 CFR 30.10(a)(2).
    Mr. Phillips' deliberate misconduct 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. In addition, Mr. 
Phillips' deliberate misconduct caused this Licensee to violate 
numerous Commission requirements and his deliberate false statements to 
Commission officials demonstrate conduct that cannot, and will not, be 
tolerated.
    Consequently, in light of the numerous violations caused by Mr. 
Phillips' conduct, the length of time the noncompliances existed, and 
the deliberate nature of Mr. Phillips' actions, 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. Phillips were permitted 
at this time to be involved in any NRC-licensed activities. Therefore, 
the public health, safety and interest require, pending further action 
by the NRC, that Mr. Phillips be prohibited from involvement in 
licensed activities. Furthermore, pursuant to 10 CFR 2.202, I find that 
the significance of the conduct described above is such that the public 
health, safety and interest require that this Order by immediately 
effective.

IV

    Accordingly, pursuant to Sections 81, 103, 161b, 161i, 182 and 186 
of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202, 10 CFR 30.10, and 10 CFR 150.20, IT IS 
hereby ordered, effective immediately, that:
    Pending further action by the NRC, Hartsell S. Phillips is 
prohibited from participation in any respect in NRC-licensed 
activities. For the purposes of this paragraph, NRC-licensed activities 
include licensed activities of: (1) An NRC licensee, (2) an Agreement 
State licensee conducting licensed activities in NRC jurisdiction 
pursuant to 10 CFR 150.20, and (3) an Agreement State licensee involved 
in distribution of products that are subject to NRC jurisdiction.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Phillips 
of good cause.

V

    In accordance with 10 CFR 2.202, Hartsell S. Phillips 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. 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 Hartsell S. Phillips or other person adversely 
affected relies and the reasons why the Order should not have been 
issued. Any answer or request for 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 II, Suite 2900, 101 Marietta Street, NW, 
Atlanta, Georgia 30323, and to Hartsell S. Phillips, if the answer or 
hearing request is by a person other than Hartsell S. Phillips. If a 
person other than Hartsell S. Phillips 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 Hartsell S. Phillips 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), Hartsell S. Phillips, or any 
other person adversely affected by this Order, may, in addition to 
demanding a hearing, at the same 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, 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 
hearing shall not stay the immediate effectiveness of this order.

    Dated at Rockville, Maryland this 10th day of March 1994.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 94-6559 Filed 3-18-94; 8:45 am]
BILLING CODE 7590-01-M