[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28908]


[[Page Unknown]]

[Federal Register: November 23, 1994]


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NUCLEAR REGULATORY COMMISSION
[IA-94-032]

 

Michael J. Berna; Order Prohibiting Involvement in NRC Licensed 
Activities (Effective Immediately)

I

    Amoco Oil Company (Amoco or Licensee) was the holder of Byproduct 
Material License No. 13-00155-10 issued by the Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Parts 30 and 34. The 
license authorized the use of byproduct material (iridium-192 and 
cobalt-60) for industrial radiography in devices approved by the NRC or 
an Agreement State. The facility where licensed materials were 
authorized for use and storage was located at 2815 Indianapolis 
Boulevard, Whiting, Indiana. The use of licensed material was 
authorized at temporary job sites anywhere in the United States where 
the United States Nuclear Regulatory Commission maintains jurisdiction 
for regulating the use of licensed material. The License was originally 
issued on February 4, 1958, and was terminated on October 19, 1993.
    Mr. Michael J. Berna performed duties as the Licensee's Radiation 
Safety Officer (RSO) from March 1990 until he was relieved of those 
duties on October 16, 1992.

II

    On July 27, 1992, the NRC Region III office received information 
that Mr. Berna had not conducted field audits of radiographers and 
radiographer's assistants as required by license conditions and that 
Mr. Berna fabricated reports for the audits that he did not perform by 
documenting that the audits had been performed. The NRC conducted an 
inspection at the Licensee's Whiting, Indiana, refinery from September 
15 to October 9, 1992. The NRC Office of Investigations (OI) 
subsequently conducted an investigation. The Licensee conducted an 
investigation contemporaneously with the NRC inspection and 
investigation. Deliberate violations of NRC requirements were 
identified as a result of the NRC inspection and the investigation.
    Condition 18.A of License No. 13-00155-10 incorporates the 
statements, representations, and procedures contained in the license 
application dated March 28, 1990. Item 10.3 of that application 
required, in part, that practicing radiographers and radiographer's 
assistants are to be audited at intervals not to exceed 3 months to 
meet the requirements of 10 CFR Part 34 and the Licensee's Operating 
and Emergency Procedures, and that the audits should be unannounced 
insofar as possible. Item 10.5 of that application required, in part, 
that certain records be generated and maintained, including a record of 
quarterly audits of radiographers and radiographer's assistants.
    Mr. Berna admitted to the NRC in a sworn, transcribed interview on 
October 7, 1992, that he knowingly failed to perform the required 
audits and that he deliberately falsified records to show that audits 
had been performed on at least ten occasions (February 6, 10, 12, and 
29, April 11, 22, 24, and 29, May 12, and September 1, 1992).
    In addition, during the September 15, 1992, inspection the NRC 
inspector asked Mr. Berna if the field audits of radiographers and 
radiographer's assistants were unannounced. Mr. Berna told the NRC 
inspector that he did not give any advance notification to radiography 
personnel. However, the testimony of eight radiographers or 
radiographer's assistants indicated that Mr. Berna always informed them 
when he would be performing an audit.
    Testimony provided by an Assistant Radiation Safety Officer (ARSO) 
on November 5, 1992, indicated that at the request of Mr. Berna on or 
about September 15, 1992, the ARSO falsified at least two records of 
audits of radiographers and radiographer's assistants for May 1992. 
Also, testimony provided to OI by another ARSO on December 17, 1992, 
indicated that at the request of Mr. Berna during August 1991, this 
ARSO falsified at least two records of audits of radiographers and 
radiographer's assistants.
    These actions are contrary to the audit requirements and the 
records generation and maintenance requirements of the License, and a 
violation of 10 CFR 30.9(a), ``Completeness and Accuracy of 
Information,'' and 10 CFR 30.19(a) (1) and (2), ``Deliberate 
Misconduct,'' of the Commission's regulations.
    The Licensee conducted an internal investigation and based on the 
results of its investigation the Licensee suspended Mr. Berna's 
employment for one month without pay. On December 1, 1992, a 
Confirmatory Order Modifying License (Effective Immediately) was issued 
to the Licensee, which confirmed, among other things, that the Licensee 
would prohibit Mr. Berna from participating in any NRC licensed 
activities, including the position of RSO.

III

    Based on the above, it appears that Mr. Berna engaged in deliberate 
misconduct from August 1991 through approximately September 15, 1992, 
by failing to conduct field audits of radiographers and radiographer's 
assistants at the interval specified in the NRC Byproduct Material 
License, and by creating false records for audits which he did not 
conduct, thus making the record appear as though a field audit was 
performed at the specified interval. Mr. Berna also engaged in 
deliberate misconduct when he requested two ARSOs to falsify field 
audit records. Mr. Berna engaged in additional misconduct when he told 
an NRC inspector that field audits of radiographers or radiographer's 
assistants were unannounced. Mr. Berna's actions caused the Licensee to 
be in violation of the Amoco License, as well as 10 CFR 30.9, and 
constituted violations of 10 CFR 30.10 of the Commission's regulations. 
As the Licensee's RSO, Mr. Berna supervised the radiation safety 
program associated with NRC Byproduct Material License No. 13-00155-10 
and was responsible for ensuring that the Commission's regulations and 
license conditions were met.
    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. Berna were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Berna be prohibited from any 
involvement in NRC-licensed activities for a period of three years from 
the date of this Order. Additionally, Mr. Berna is required to notify 
the NRC of his first employment in NRC-licensed activities licensed by 
the NRC following the prohibition period. Furthermore, pursuant to 10 
CFR 2.202, I find that the significance of Mr. Berna's conduct 
described above is such that the public health, safety and interest 
require that this Order be immediately effective. A longer period was 
not imposed because of the issuance of the December 1, 1992 
Confirmatory Order Modifying License (Effective Immediately).

IV

    Accordingly, pursuant to sections 81, 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 Part 30, and 10 CFR Part 34, it is 
hereby ordered, effective immediately, that:
    A. Michael J. Berna is prohibited for three years from the date of 
this Order from engaging in NRC-licensed activities. NRC-licensed 
activities 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. The first time Mr. Berna is employed in NRC-licensed activities 
following the three-year prohibition, he shall, within 20 days of his 
acceptance of the employment offer involving NRC-licensed activities, 
notify the Director, Office of Enforcement, U.S. Nuclear Regional 
Administrator, NRC Region III. The notice shall include the name, 
address, and telephone number of the employer of the entity where he 
is, or will be, involved in the NRC-licensed activities. In the first 
notification, Mr. Berna 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. Berna of 
good cause.

V

    In accordance with 10 CFR 2.202, Mr. Berna must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order, and may request a hearing 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. Berna 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, 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, Region III, U.S. Nuclear 
Regulatory Commission, 801 Warrenville Road, Lisle, Illinois 60532-
4351; and to Mr. Berna, if the answer or hearing request is by a person 
other than Mr. Berna. If a person other than Mr. Berna 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. Berna 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. Berna, 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 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. An answer or a request 
for hearing shall not stay the immediate effectiveness of this order.

    Dated at Rockville, Maryland this 15th day of November 1994.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards and 
Operations Support.
[FR Doc. 94-28908 Filed 11-22-94; 8:45 am]
BILLING CODE 7590-01-M'