[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27609]


[[Page Unknown]]

[Federal Register: November 8, 1994]


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NUCLEAR REGULATORY COMMISSION
 

Order Prohibiting Involvement in Certain NRC-Licensed Activities; 
Effective Immediately

I

    Thomas A. Nisbet was employed as a Radiographer for Western 
Industrial X-Ray Inspection Company, Inc. (Licensee or WIX), Evanston, 
Wyoming, from May 1993 to June 1994, when the WIX license was 
suspended. WIX is the holder of License No. 49-27356-01 issued by the 
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR 
Parts 30 and 34. The license authorizes the Licensee to possess sealed 
sources to iridium-192 in various radiography devices for use in 
performing industrial radiography in accordance with the conditions of 
the license. The license was suspended by NRC Order on June 16, 1994, 
and remains in suspension while a hearing requested by the Licensee is 
pending. On September 27, 1994, the NRC issued an immediately effective 
Order to WIX to transfer material in its possession. In a provision 
that is not effective immediately, the Order also revoked the WIX 
license.

II

    Between January and June 1994, an inspection (030-32190/94-01) and 
an Office of Investigations (OI) investigation (4-93-049R) of licensed 
activities were conducted in response to allegations that Mr. Thomas A. 
Nisbet, a Radiographer formerly employed by WIX, had deliberately 
allowed a Radiographer's Assistant employed by WIX and working with 
him, to perform radiographic operations on July 31, 1993, without 
supervision, and that the Licensee deliberately failed to evaluate a 
July 31, 1993, potential overexposure incident involving the 
Radiographer's Assistant. During the inspection and investigation, the 
Radiographer's Assistant informed the inspector and investigator that 
she and Mr. Nisbet falsified a written incident report provided to 
their employer that described the circumstances involving the potential 
overexposure incident. This potential overexposure incident occurred as 
the result of the Radiographer's Assistant not properly implementing 
radiography procedures while performing radiographic operations in that 
she failed to perform a survey to verify that the source was returned 
to its shielded position after a radiographic exposure was taken and 
she failed to lock the source in the exposure device prior to moving 
the device.
    Based on its review of the available information, the NRC concludes 
that Mr. Nisbet violated provisions of 10 CFR 30.10, which prohibits 
individuals from deliberately causing a licensee to be in noncompliance 
with NRC requirements and from deliberately providing incomplete or 
inaccurate information to the NRC or to a licensee of the NRC which the 
individual knows is material in some respect to the NRC. Specifically, 
as discussed below in more detail, the NRC concludes that : 1) Mr. 
Nisbet deliberately failed to provide personal supervision of, 
including the failure to watch, his assistant, while she was performing 
radiographic operations on July 31, 1993, a violation of 10 CFR 34.44; 
and 2) Mr. Nisbet deliberately provided inaccurate information to the 
Radiation Safety Officer for WIX about the July 31, 1993, incident, a 
violation of 10 CFR 30.10.
    During the inspection and investigation, Mr. Nisbet stated that he 
had allowed the Radiographer's Assistant to perform radiographic 
operations without his direct supervision. When questioned, Mr. Nisbet 
stated that he knew that allowing the Radiographer's Assistant to 
perform radiographic operations without his supervision was a violation 
of NRC requirements; however, during subsequent questioning, Mr. Nisbet 
stated that he knew that he was responsible for the Radiographer's 
Assistant but he did not know that he had to watch her perform 
radiographic operations 100 percent of the time. Mr. Nisbet stated that 
he was performing paperwork in his truck during the time that the 
Radiographer's Assistant was potentially overexposed while performing 
radiographic operations on July 31, 1993. Mr. Nisbet stated that his 
written report of the incident which he provided to the President and 
Radiation Safety Officer for WIX was not completely true in that he did 
not actually observe the Radiographer's Assistant conduct radiography 
when the incident occurred.
    During an enforcement conference that was held on August 30, 1994, 
Mr. Nisbet stated that he and other WIX radiographers had allowed their 
assistants to perform radiographic operations without being observed 
once they were confident that their assistants could perform 
radiographic operations without direct supervision. Mr. Nisbet stated 
that this was a common practice and that the WIX President and 
Radiation Safety Officer, Mr. Larry D. Wicks, had provided guidance to 
conduct radiography in this manner. Mr. Nisbet stated that he knew that 
there was an NRC regulation which required radiographers to supervise 
radiographer's assistants, but he did not know specifically what this 
supervision entailed and the guidance that he received from Mr. Wicks 
relative to this requirement was that he could perform dark room 
activities and complete paperwork while the Radiographer's Assistant 
conducted radiographic operations once he was confident that the 
assistant could perform radiography without direct supervision. Mr. 
Nisbet also stated that he felt pressured to allow the Radiographer's 
Assistant to perform radiographic operations without direct supervision 
or observation in order to meet the schedule for accomplishing the 
number of contractually-specified daily radiographs.
    Although 10 CFR 34.44 is explicit that personal supervision 
includes watching the radiogrpaher's assistant's performance of 
operations, Mr. Nisbet stated that he was provided guidance by his 
employer that is contrary to the requirements to that regulation. 
However, improper direction from management does not excuse failure to 
comply with regulatory requirements.
    The following considerations raise significant questions about Mr. 
Nisbet's willingness to comply with the NRC regulation that governs the 
supervision of Radiographers' Assistants:
    1. Mr. Nisbet initially told the investigators that he did not 
watch the Radiographer's Assistant operate the exposure device for a 
particular weld (three exposures) on July 31, 1993, which he knew was a 
violation of NRC requirements.
    2. Mr. Nisbet initially told the investigators that he had told the 
Radiographer's Assistant that she violated NRC regulations when she 
operated the exposure device on July 31, 1993, without him observing.
    3. Mr. Nisbet falsified the written report that described the July 
31, 1993, incident so that the report indicated that he was observing 
the Radiographer's Assistant at the time that the potential 
overexposure of the Radiographer's Assistant occurred.
    4. The Radiographer's Assistant told the investigators that she 
agreed to falsify the incident report because, knowing it was a 
violation of NRC requirements for her to perform radiographic 
operations without being observed by Mr. Nisbet, she believed that he 
would be fired if Mr. Wicks knew that Mr. Nisbet was not supervising 
her while she was performing radiography.
    Mr. Nisbet also told NRC personnel during the enforcement 
conference that he and the Radiographer's Assistant agreed, at the 
suggestion of the Radiographer's Assistant's spouse, who was also a WIX 
radiographer and Assistant Radiation Safety Officer, to provide a false 
account of how the potential overexposure incident occurred. Mr. Nisbet 
stated that the Radiographer's Assistant's spouse told him and the 
Radiographer's Assistant that they were likely to be fired if they told 
Mr. Wicks what actually transpired. Upon further questioning by the NRC 
personnel during the enforcement conference, Mr. Nisbet stated that he 
was not coerced into falsifying the written incident report and it was 
his decision to do so. Mr. Nisbet stated that after Mr. Wicks became 
aware of what actually occurred, Mr. Wicks told him that he would be 
fired if a similar incident occurred again.
    Based on its review of the evidence gathered during the OI 
investigation, as well as the information obtained during the 
enforcement conference, the NRC concludes that Mr. Nisbet deliberately 
failed to personally supervise the Radiographer's Assistant while she 
conducted radiographic operations on July 31, 1993, and that Mr. Nisbet 
deliberately provided false information to the Licensee regarding the 
July 31, 1993 incident.
    Based on the above, Thomas A. Nisbet has engaged in deliberate 
misconduct that caused the Licensee to be in violation of 10 CFR 34.44. 
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. Nisbet's actions in causing the Licensee to 
violate 10 CFR 34.44 have raised serious doubt as to whether he can be 
relied upon to comply with NRC requirements in the future.
    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 
will be protected, if Mr. Nisbet were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Thomas A. Nisbet be prohitied from any 
involvement in NRC-licensed activities for a period of one year from 
the date of this Order, and if he is currently involved with another 
NRC licensee in NRC-licensed activities, he must immediately cease 
those 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. Additionally, Mr. Nisbet is required to notify the NRC of his 
first employment in NRC-licensed activities following the prohibition 
period. Furthermore, pursuant to 10 CFR 2.202, I find that the 
significance of Mr. Nisbet'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 81, 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 Part 34, IT IS 
HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT:
    1. Thomas A. Nisbet is prohibited for one year from the date of 
this Order 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 
pursuant to the authority granted by 10 CFR 150.20.
    2. The first time Mr. Nisbet is employed in NRC-licensed activities 
following the one-year prohibition, he shall notify the Director, 
Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, 
D.C. 20555, and the Regional Administrator, NRC Region IV, at least 
five days prior to the performance of licensed activities (as described 
in 1 above). The notice shall include the name, address, and telephone 
number of the NRC or Agreement State licensee and the location where 
the licensed activities will be performed. The notice shall include a 
statement of his commitment to compliance with regulatory requirements 
and the basis why the Commission should have confidence that he will 
now comply with applicable NRC requirements.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Nisbet of 
good cause.

V

    In accordance with 10 CFR 2.202, Mr. Nisbet 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 Mr. Nisbet 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 IV, 611 Ryan Plaza Drive, Suite 400, Arlington, Texas 76011, and 
to Mr. Nisbet if the answer or hearing request is by a person other 
than Mr. Nisbet. If a person other than Mr. Nisbet 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. Nisbet 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. Nisbet, 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 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 31st day of October, 1994.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards and 
Operations Support.
[FR Doc. 94-27609 Filed 11-8-94; 8:45 am]
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