[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Notices]
[Pages 42632-42633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20238]



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NUCLEAR REGULATORY COMMISSION
[IA 95-029]


Steven Cody; Order Prohibiting Involvement in NRC-Licensed 
Activities (Immediately Effective)

I

    From approximately January 1990, to April 24, 1993, Steven Cody was 
employed as a radiographer by Mid American Inspection Services, Inc. 
(Mid American Inspection or Licensee). Mid American Inspection holds 
Byproduct Material License No. 21-26060-01 issued by the U. S. Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Parts 30 
and 34 on June 13, 1989. The license authorizes the use of iridium-192 
in sealed sources for industrial radiography and depleted uranium as 
solid metal to shield exposure devices and source changers. Licensed 
material is authorized for use at the facility located at 1206 Effie 
Road, Gaylord, Michigan, and at job sites located throughout the United 
States where the NRC maintains jurisdiction. The license was due to 
expire on August 31, 1994, but is under timely renewal.

II

    During the period of approximately October 1992 to April 1993 the 
Licensee performed industrial radiography on a gas line project near 
Kalkaska, Michigan. Mr. Steven Cody was a radiographer assigned to the 
project. As a radiographer, Mr. Cody was responsible for compliance 
with the Commission's regulations, including the personal supervision 
of any radiographic operation performed by radiographer's assistants 
working with him. 10 CFR 34.2 defines a radiographer's assistant as any 
individual who under the personal supervision of a radiographer, uses 
radiographic exposure devices, sealed sources or related handling 
tools, or radiation survey instruments in radiography.
    On May 13, 1993, the Licensee received information that indicated 
that Mr. Cody routinely failed to supervise radiographer's assistants 
during radiographic operations at the Kalkaska, Michigan, project. On 
May 14, 1993, the Licensee notified the NRC Region III office of the 
potential violation.
    The NRC Office of Investigations (OI) investigated the matter. 
Sworn testimony of radiographer's assistants confirmed that Mr. Cody 
was not always present when the assistant performed radiographic 
operations. The testimony indicated that at times Mr. Cody left the 
work site leaving the radiographer's assistant alone to conduct 
radiographic operations. Mr. Cody admitted to OI in a sworn statement 
that he sometimes left the job site while an assistant conducted 
radiographic operations. Mr. Cody stated to OI and during the 
enforcement conference that he would only leave the job site at the 
assistant's suggestion that the remaining radiographic operations could 
be performed without any assistance from Mr. Cody.
    OI developed information that indicated that Mr. Cody was familiar 
with the NRC requirement to have a radiographer present whenever a 
radiographer's assistant performed radiographic operations.
    Mr. Cody's failure to supervise radiographer's assistants during 
radiography operations is a violation of 10 CFR 34.44, ``Supervision of 
radiographers' assistants.'' 10 CFR 34.44 requires that whenever a 
radiographer's assistant uses radiographic exposure devices, sealed 
sources or related source handling tools, or conducts radiation surveys 
required by 10 CFR 34.43(b) to determine that the sealed source has 
returned to the shielded position after an exposure, he shall be under 
the personal supervision of a radiographer. The personal supervision 
shall include: (a) The radiographer's personal presence at the site 
where the sealed sources are being used, (b) the ability of the 
radiographer to give immediate assistance if required, and (c) the 
radiographer's watching the assistant's performance of the operations 
referred to in this section.
    Contrary to the requirements of 10 CFR 34.44, Mr. Cody was not 
personally present on more than one occasion at the site where sealed 
sources were used. Therefore, he did not have the ability to give 
immediate assistance if required and he could not watch the assistant's 
performance of radiographic operations.
    Furthermore, 10 CFR 30.10 states that any licensee or any employee 
of a licensee may not engage in deliberate misconduct that causes or, 
but for detection, would have caused a licensee to be in violation of 
any rule, regulation, or order, or any term, condition, or limitation 
of any license issued by the Commission. Deliberate misconduct means, 
in part, an intentional act or omission that the person knows: (1) 
Would cause a licensee to be in violation of any rule, regulation or 
any term, condition, or limitation of any license issued by the 
Commission; or constitutes a violation of a procedure of a licensee.
    Mr. Cody's failure to be present during radiographic operations 
conducted by a radiographer's assistant is a violation of 10 CFR 34.44 
and his violation of that requirement is considered deliberate because 
Mr. Cody was fully aware of the requirements of 10 CFR 34.44, yet he 
intentionally elected to leave the job site.

III

    Based on the above, the NRC concludes that Steven Cody engaged in 
deliberate misconduct that caused a violation of 10 CFR 34.44 when he 
failed to be personally present whenever a radiographer's assistant 
under his supervision performed radiographic operations. The NRC must 
be able to rely on its licensees and the employees of licensees, to 
comply with NRC requirements, including the requirement that 
radiographic operations cannot be conducted by a radiographer's 
assistant unless a radiographer is present during such operations. The 
deliberate violation of 10 CFR 34.44 by Mr. Cody, as discussed above, 
has raised serious doubt as to whether he can be relied on to comply 
with NRC requirements.
    Consequently, I lack the requisite assurance that Steven Cody will 
conduct licensed activities in compliance with the Commission's 

[[Page 42633]]
requirements or that the health and safety of the public will be 
protected if Mr. Cody was permitted at this time to be involved in NRC-
licensed activities. Therefore, the public health, safety and interest 
require that for a period of one year from the date of this Order, 
Steven Cody be prohibited from any involvement in NRC-licensed 
activities for either: (1) An NRC licensee, or (2) an Agreement State 
licensee performing licensed activities in areas of NRC jurisdiction in 
accordance with 10 CFR 150.20. In addition, for three years commencing 
after the one year period of prohibition, Mr. Cody must notify the NRC 
of his employment or involvement in NRC-licensed activities to ensure 
that the NRC can monitor the status of Mr. Cody's compliance with the 
Commission's requirements and his understanding of his commitment to 
compliance. Furthermore, pursuant to 10 CFR 2.202, I find that the 
significance of Mr. Cody's conduct is such that the public health, 
safety, and interest require that this Order be immediately effective.

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 30.10, and 10 CFR 150.20, it is 
hereby ordered, effective immediately, that:
    1. Steven Cody is prohibited for one year from the date of this 
Order from engaging in any 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. For three years after the above one year period of prohibition 
has expired Steven Cody shall, within 20 days of his acceptance of each 
employment offer involving NRC-licensed activities or his becoming 
involved in NRC-licensed activities, as defined in Paragraph IV.1 
above, provide notice to the Director, Office of Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555, of the name, 
address, and telephone number of the employer or the entity where he 
is, or will be, involved in the NRC-licensed activities. In the first 
notification, Steven Cody 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. Cody of 
good cause.

V

    In accordance with 10 CFR 2.202, Steven Cody 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. When good cause is shown, consideration will be 
given to extending the time to request a hearing. A request for 
extension of time must be made in writing to the Director, Office of 
Enforcement, and include a statement of good cause for the extension. 
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. Cody 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 20055, 
to the Assistant General Counsel for Hearings and Enforcement at the 
same address, and to the Regional Administrator, NRC Region III, 801 
Warrenville Road, Lisle, Illinois 60632-4531 if the answer or hearing 
request is by a person other than Mr. Cody. If a person other than Mr. 
Cody requests a hearing, that person shall set forth with particularity 
the manner in which his or her interest is adversely affected by the 
Order and shall address the criteria set forth in 10 CFR 2.714(d).
    If a hearing is requested by Mr. Cody 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), Steven Cody, 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, or written approval of 
an extension of time in which to request a hearing, the provision 
specified in Section IV above shall be final 20 days from the date of 
this Order without further order or proceedings. If an extension of 
time for requesting a hearing has been approved, the provisions 
specified in Part IV shall be final when the extension expires if a 
hearing request has not been received. An answer or a request for 
hearing shall not stay the immediate effectiveness of this Order.

    Dated at Rockville, Maryland this 7th day of August 1995.

    For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 95-20238 Filed 8-15-95; 8:45 am]
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