[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