[Federal Register Volume 62, Number 22 (Monday, February 3, 1997)]
[Notices]
[Pages 5059-5061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2536]


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NUCLEAR REGULATORY COMMISSION
[IA 97-004]


James C. Nelson, Order Prohibiting Involvement In NRC-Licensed 
Activities (Effective Immediately)

I

    Mr. James C. Nelson owns and operates Nelson Excavating, Inc. in 
Thomas, West Virginia. Nelson Excavating, Inc. (Licensee) holds By-
product License No. 47-24923-02, issued by the Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Part 30. The License 
was initially issued on June 24, 1987, and last renewed on September 
17, 1992. The License authorizes the Licensee to use a Troxler 
Electronic Model 3400 series portable moisture density gauge for soil 
compaction measurements in accordance with the conditions specified 
therein. The License was extended for a period of five years on March 
1, 1996, and will expire on September 30, 2002. On August 15, 1996, the 
Licensee discontinued licensed activities and transferred its gauge 
containing nominally 11 millicuries (mCi) of Cesium-137 and 44 mCi of 
Americium-241 to an authorized recipient. On August 15, 1996, the 
Licensee formally requested termination of its NRC License. The License 
is being terminated separately in accordance with this request.

II

    On October 24, 1995, the NRC's Office of the Controller issued an 
Order Suspending License (Effective Immediately) to Nelson Excavating, 
Inc. suspending its License for the non-payment of fees in the amount 
of $2,873.48, including late penalties of $753.48. The Order required, 
among other things, that the Licensee immediately restrict its 
activities involving licensed material to safe, secure storage or 
appropriate disposal until notified by the NRC in writing that the 
License had been terminated. The Order became final on November 24, 
1995, following the Licensee's failure to respond to the NRC or pay the 
fees within the 30 days specified in the Order.
    During the period March 19 through April 1, 1996, NRC Region II 
conducted a special safety inspection of licensed activities to 
determine the status of the gauge and compliance with the October 24, 
1995 Order. The inspection determined the following: (1) The Licensee 
used the gauge containing by-product material on November 6, 1995, and 
January 4, 1996, contrary to the requirements of the October 24, 1995,

[[Page 5060]]

Order; (2) The Licensee was using a different Radiation Protection 
Officer than that identified in Condition 11 of the License. The 
Licensee also represented to the NRC in a letter, dated September 17, 
1992, that the individual named in the License was still acting as 
Radiation Protection Officer, when in fact the individual was not, 
contrary to the requirements of 10 CFR 30.9; and (3) The Licensee 
failed to test the licensed material for leakage at the required 
frequency contrary to Condition 14 of the License.
    On May 15, 1996, NRC Region II management contacted the Licensee to 
discuss compliance with the October 24, 1995 Order. Mr. Nelson 
indicated that his licensed material had been used for the work 
conducted on November 6, 1995, and January 4, 1996, under another 
license and not that issued to Nelson Excavating, Inc. Additionally, he 
affirmed that he understood the provisions of the Order that the gauge 
was to be placed in storage and not used.
    On June 11, 1996, a Demand for Information (DFI) was issued to the 
Licensee in order to obtain a written response regarding the two 
apparent uses of licensed material and the potential submittal of 
inaccurate information to the NRC on September 17, 1992. The Licensee's 
response was due on July 11, 1996.
    Since the licensee was unresponsive to NRC's request in the DFI and 
numerous telephone inquiries, NRC Region II conducted another 
inspection at the Licensee's facility in Thomas, West Virginia, on 
August 14 and 15, 1996. During that inspection, eleven additional uses 
of the Licensee's gauge after issuance of the Order were identified 
through a review of gauge utilization records. Ten of the uses occurred 
following the May 15, 1996, discussions between NRC Region II and the 
Licensee confirming the Licensee's understanding of the Order. As a 
result of this inspection, the Licensee transferred the gauge to an 
authorized recipient and documented the transfer appropriately on 
August 15, 1996.
    As a result of the NRC inspection and prompting by the NRC, the 
Licensee also submitted a written response to the DFI on August 15, 
1996. The response admitted that the gauge was used on 13 occasions 
during the prohibition period. As an explanation, Mr. Nelson stated 
that he had reading and comprehension difficulties, and following his 
March 19, 1996, payment of backfees and receipt of a March 1, 1996, 
notice from NRC extending his license until September 30, 2002, he felt 
that he could use his license material. In addition, he stated that he 
paid for it [the gauge], he owned it, and would use it accordingly. The 
DFI response further provided statements by two employees of the 
Licensee that they had not been instructed by Mr. Nelson not to use the 
gauge.
    By letter, dated September 25, 1996, the Licensee and Mr. Nelson 
were requested to attend a predecisional enforcement conference to 
discuss the apparent violations, their root causes, and the corrective 
actions to preclude recurrence. As of the date of this Order, NRC has 
not received any response from Mr. Nelson, despite numerous attempts to 
contact him. Contact with the Office Manager for Nelson Excavating, 
Inc, however, indicated that due to personal problems, Mr. Nelson did 
not intend to respond.
    Despite the lack of a response to NRC's September 25, 1996, letter, 
based on the information gathered during the inspections and in the 
response to the DFI, the following was concluded regarding Mr. Nelson's 
activities: (1) He deliberately provided information that he knew was 
inaccurate to the NRC regarding the identity of the Radiation 
Protection Officer in a September 17, 1992, letter; and (2) he 
deliberately permitted the use of the gauge containing licensed 
material on 13 occasions during the period that use of the gauge was 
prohibited by the October 24, 1995 Order. In addition, Mr. Nelson has 
failed to respond to numerous requests from the NRC regarding oversight 
of his NRC license. This failure caused the NRC to perform two onsite 
inspections to assure licensed activities were conducted in accordance 
with NRC regulations.

III

    Based on the above, it appears that James C. Nelson, the owner and 
operator of the Nelson Excavating, Inc., has engaged in deliberate 
misconduct in violation of 10 CFR 30.10(a)(1), in that he deliberately 
caused the Licensee to be in violation of 10 CFR 30.34 (a), Terms and 
Conditions of License, by permitting the use of the gauge containing 
licensed material on 13 occasions following the October 24, 1995 Order 
prohibiting use of the gauge, and in violation of 10 CFR 30.10(a)(2) in 
that he deliberately submitted information to the NRC regarding the 
identity of the RPO in a September 17, 1992 letter that he knew was 
inaccurate. Mr. Nelson's disregard for and failure to adhere to NRC 
regulations and an Order strongly suggests a lack of integrity which 
cannot be tolerated. As owner and operator of Nelson Excavating, Inc., 
Mr. Nelson was responsible for ensuring that Nelson Excavating, Inc. 
conducted activities safely and in accordance with NRC requirements and 
the October 24, 1995, Order. The NRC must be able to rely on the 
Licensee, its officials, and employees to comply with NRC requirements 
and the terms of NRC Orders prohibiting the use of licensed materials, 
and to communicate to the NRC with candor and honesty.
    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. Nelson were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Nelson be prohibited from any 
oversight of or involvement in NRC-licensed activities for a period of 
five years from the date of this Order. Furthermore, pursuant to 10 CFR 
2.202, I find that the significance of Mr. Nelson'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, 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:

    A. For a period of five years from the date of this Order, James 
C. Nelson is prohibited from any involvement in or exercising 
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) supervising or directing any licensed activities 
conducted within the jurisdiction of the NRC.
    B. Following the five-year period of prohibition outlined in 
Section IV.A above, at least five days prior to the first time that 
James C. Nelson 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, of 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 James 
C. Nelson is committed to compliance with NRC requirements and the 
basis why the Commission should have confidence that he

[[Page 5061]]

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. Nelson of 
good cause.

V

    In accordance with 10 CFR 2.202, James C. Nelson 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. 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, U.S. Nuclear Regulatory Commission Washington, D.C. 20555, 
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 C. Nelson 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 II, 101 
Marietta Street N.W., Suite 2900, Atlanta, GA 30323, and to James C. 
Nelson if the answer or hearing request is by a person other than James 
C. Nelson. If a person other than James C. Nelson 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 C. Nelson 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), James C. Nelson, 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 provisions 
specified in Section IV above shall be effective and 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 Section 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 27th day of January 1997.

    For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program 
Oversight, Investigations and Enforcement.
[FR Doc. 97-2536 Filed 1-31-97; 8:45 am]
BILLING CODE 7590-01-P