[Federal Register Volume 60, Number 215 (Tuesday, November 7, 1995)]
[Notices]
[Pages 56176-56178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27511]



-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION
[IA 95-055]


James L. Shelton; Order Prohibiting Involvement in NRC-Licensed 
Activities (Effective Immediately)

I
    James L. Shelton is President and Radiation Safety Officer (RSO) of 
TESTCO, Inc. (TESTCO or Licensee) located in Greensboro, North 
Carolina. TESTCO holds byproduct materials License No. 041-0894-1 
issued by the State of North Carolina under an agreement with the 
Nuclear Regulatory Commission (NRC or Commission) or the Atomic Energy 
Commission pursuant to subsection 274b of the Atomic Energy Act, as 
amended. The license authorizes the possession and use of byproduct 
material for industrial radiography activities in accordance with the 
conditions specified therein. Mr. Shelton, in addition to being 
President and RSO, has served as a radiographer from June 1990 to the 
present.
II
    On September 9, 1992, while conducting an inspection of another NRC 
licensee, an NRC inspector obtained information which indicated that 
TESTCO had performed radiographic activities in areas under NRC 
jurisdiction. A review of NRC records revealed that TESTCO did not 
possess an NRC specific license 

[[Page 56177]]
pursuant to 10 CFR 30.3, nor had TESTCO notified the NRC of this 
activity by filing a NRC Form-241 as required by 10 CFR 150.20(b)(1).
    The requirement that an Agreement State licensee must file Form-241 
before conducting a licensed activity in a non-Agreement State allows 
NRC to be informed of the location and duration of the activity and 
permits NRC to inspect it as appropriate. Since August 9, 1991, NRC has 
required a fee for the initial filing of Form-241, as well as for 
subsequent revisions to the Form-241.
    Between November 16, 1992 and April 25, 1995, an investigation was 
conducted by the NRC Office of Investigations (OI) to determine if the 
failure to make the required notification to the NRC was the result of 
deliberate misconduct. Based on the investigative findings, the NRC 
staff concludes that on numerous occasions between August 9, 1991, and 
August 31, 1994, TESTCO conducted radiography using iridium-192, a 
licensed material, in Virginia, a non-Agreement state (i.e., a State 
under NRC jurisdiction), without a specific NRC license; and Mr. 
Shelton deliberately failed to assure that Form-241 was filed with the 
NRC as required by the general license granted to TESTCO pursuant to 10 
CFR 150.20.
    A transcribed predecisional enforcement conference between the NRC 
and Mr. Shelton, representing himself and TESTCO, was held on July 27, 
1995. Mr. Shelton indicated during this conference that he had 
delegated the submission of the NRC Form-241's to his former wife, who 
was TESTCO's office manager.
    The conclusion that Mr. Shelton deliberately failed to assure that 
the Form-241's were filed is based on the following facts when taken 
together: (1) Mr. Shelton acknowledged that he was aware of the 
requirement to file Form-241's; (2) a Form-241 was filed on February 
11, 1991, for work conducted in the State of Virginia on February 13, 
and that form bears Mr. Shelton's signature rather than that of the 
office manager; (3) Mr. Shelton provided OI with copies of two other 
Form-241's that he claims to have filed in July 1990 and August 1991, 
which also bear his signature rather than that of the office manager; 
(4) no Form-241's were filed between August 9, 1991, the effective date 
of the rule change requiring a fee for the filing of Form-241, and 
August 31, 1994, when an NRC inspection of TESTCO focused on the Form-
241 issue, and OI determined that TESTCO performed work in Virginia on 
numerous occasions during that time period; 1 (5) according to 
sworn testimony from an individual interviewed by OI who was 
knowledgeable concerning TESTCO's licensed activities, Mr. Shelton 
stated that he would not make the notifications to the NRC if he had to 
pay a fee; and (6) Mr. Shelton admitted during the predecisional 
enforcement conference that, on a number of occasions, he became aware 
after the fact that his wife had failed to file Form-241, but he took 
no action as the TESTCO President and RSO to prevent recurrence.

    \1\ Mr. Shelton provided OI with a copy of two Form-241's that 
he claims to have filed on August 23, 1991, and July 1, 1992. NRC 
has no record of receiving these Form-241's, and NRC fee records do 
not show any receipt of the fees that would have accompanied them.
---------------------------------------------------------------------------

    As President and RSO, Mr. Shelton assigned and conducted the 
radiographic operations and he was responsible for complying with NRC 
requirements. When he determined that the Form-241's were not being 
filed with the NRC, he should have resumed the practice of filing the 
forms himself, discontinued operations in NRC jurisdiction, notified 
the NRC, or taken other action to assure compliance.
III
    Based on the above, the staff concludes that Mr. Shelton engaged in 
deliberate misconduct, a violation of 10 CFR 30.10, which caused the 
Licensee to be in violation of 10 CFR 30.3 and 10 CFR 150.20 for the 
failure to have a specific NRC license or else file Form-241 with the 
NRC as required by the general license granted pursuant to 10 CFR 
150.20. As RSO and President of TESTCO, Mr. Shelton was responsible for 
radiation safety and compliance with NRC requirements, specifically in 
this case, the notification of the NRC through the submittal of the NRC 
Form-241. Failure of the licensee to notify the NRC denied the NRC the 
opportunity to inspect the activities and ensure that the health and 
safety of the public was being protected.
    The NRC must be able to rely on the licensee and its employees to 
comply with NRC requirements. The deliberate violation of 10 CFR 30.3 
and 10 CFR 150.20 by Mr. Shelton, as discussed above, raises serious 
doubts as to whether he can be relied upon to comply with NRC 
requirements.
    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. Shelton were permitted at this time to 
exercise control over, or engage in, NRC-licensed activities. 
Therefore, the public health, safety and interest require that Mr. 
Shelton be prohibited from controlling or engaging in NRC-licensed 
activities for a period of three years from the date of this Order.
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 150.20, it is 
hereby ordered, effective immediately, That:
    A. For a period of three years from the date of this Order, Mr. 
James L. Shelton is prohibited from engaging in, or exercising any 
control over, NRC-licensed activities. NRC-licensed activities are 
those activities which 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. This prohibition includes, but is 
not limited to: (1) Using licensed materials or conducting licensed 
activities in any capacity within the jurisdiction of the NRC; and (2) 
assigning, supervising, directing, assisting, or serving as radiation 
safety officer for, licensed activities conducted within the 
jurisdiction of the NRC.
    B. Following the three year prohibition in Section IV.A. above, at 
least five days prior to the first time that Mr. Shelton engages in, or 
exercises control over, NRC-licensed activities, he shall notify the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, D.C. 20555. 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 be accompanied by a statement that Mr. Shelton is committed to 
compliance with NRC 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. Shelton 
of good cause.
V
    In accordance with 10 CFR 2.202, James L. Shelton 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 

[[Page 56178]]
Order. Where 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 James L. Shelton 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 James L. Shelton, if the answer or 
hearing request is by a person other than James L. Shelton. If a person 
other than James L. Shelton 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 James L. Shelton 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), James L. Shelton, 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 grounds 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 provisions 
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 of this Order 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 31st day of October 1995.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards, and 
Operations Support.
[FR Doc. 95-27511 Filed 11-6-95; 8:45 am]
BILLING CODE 7590-01-P