[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Notices]
[Pages 9218-9220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4998]


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NUCLEAR REGULATORY COMMISSION
[IA-97-012]


In the Matter of James L. Mulkey; Order Prohibiting Involvement 
in NRC-Licensed Activities; (Effective Immediately)

I

    James L. Mulkey (Mr. Mulkey) was employed as Vice President by 
Power Inspection, Inc. (PI or Licensee), and was identified on PI's NRC 
license as the Radiation Safety Officer (RSO) for PI. PI is the holder 
of Byproduct License No. 37-21428-01 (License) issued by the Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Parts 30 
and 34. The License authorizes the Licensee to use iridium-192 and 
cobalt-60 sealed sources for the performance of industrial radiography 
at its facility in Wexford, Pennsylvania, as well as at temporary job 
sites. The License was most recently renewed on January 31, 1989, and 
expired on January 31, 1994. In addition, the Licensee submitted a 
request, dated December 30, 1993, that the license be terminated. 
Action on that request has been held in abeyance pending further NRC 
review.
    In addition, PI acted as a vendor supplying services to licensees 
of nuclear power plants, including the performance of nondestructive 
testing services, such as eddy current testing (ET). Such services were 
provided to the licensees of Perry and Cooper nuclear power plants in 
1993.

II

    On December 2 and 3, 1993, the NRC performed an inspection at the 
Licensee's Wexford facility of activities conducted under the License. 
During that inspection, the NRC found numerous violations of NRC 
requirements. The violations included: the failure of the RSO named on 
the License to perform required duties; the failure to conduct 
quarterly audits of all radiographers; the failure to provide the 
required annual refresher training to the radiographers; the failure to 
perform, at the required frequency, the required inspection and 
maintenance on the exposure device (camera) containing an iridium-192 
source; the failure to perform leak tests of the sealed sources at the 
required frequency; the failure to promptly collect and submit film 
badges for processing; and the failure to maintain radiography 
utilization logs.
    On December 2, 1993, an NRC investigation was also initiated by the 
NRC Office of Investigations (OI). During its investigation, OI 
concluded that:
    a. With respect to the materials license, responses in PI's 
response letter dated July 14, 1993, to the NRC were deliberately 
incomplete and inaccurate, and the President and former RSO were 
responsible for providing this false information to the NRC. 
Specifically, the inaccurate information provided to the NRC was in 
response to a previous Notice of Violation issued to the Licensee on 
June 16, 1993, for numerous violations identified during an NRC 
inspection conducted in April 1993.
    In a response, signed by Mr. Mulkey, to the violations listed in 
the June 16, 1993 Notice of Violation, the licensee stated that: (1) 
observations of the licensee's radiographers had been made when, in 
fact, the observations had not been made; (2) a ratemeter had been sent 
for calibration, when, in fact, the ratemeter had not been sent; (3) 
pocket dosimeters had been calibrated, when, in fact, the dosimeters 
had not been calibrated; (4) source utilization logs had been 
maintained, when, in fact, the logs had not been maintained; (5) 
personnel monitoring reports were available, when, in fact, the reports 
had not been available.
    b. With respect to the vendor-related activities, false ET 
qualification certifications were deliberately generated by PI for at 
least three employees who performed ET examinations at Perry and Cooper 
nuclear power plants during 1993 and ET qualification certification 
examination results and Personnel Certification Summaries were 
generated for four employees, and these falsifications were condoned or 
directed by the former President, former Vice President/RSO (i.e., Mr. 
Mulkey), and the former Quality Assurance Manager.
    In addition, Mr. Mulkey deliberately provided false information to 
the NRC during a December 2, 1993 telephone discussion with a 
representative of the NRC in that Mr. Mulkey stated he was the RSO, and 
that in September of 1993 he had visited the Wexford office and 
executed the duties of an RSO. These statements were false in that: (1) 
Interviews with PI employees established that Mr. Mulkey had not 
visited the Wexford office during 1993, and they were not aware of Mr. 
Mulkey performing any audits related to radiographic operations out of 
the Wexford office; and (2) Mr. Mulkey

[[Page 9219]]

indicated during the predecisional enforcement conference on October 2, 
1996, that he left the position of RSO for the Wexford facility at the 
end of 1992 to work in Florida. However, during the conference, Mr. 
Mulkey also indicated that at the time he responded to the NRC in the 
July 14, 1993 letter, he was the RSO and was responsible for compliance 
with the license.

III

    Based on the above, Mr. Mulkey, former Vice President and RSO of 
PI, a licensee of the NRC, engaged in deliberate misconduct, a 
violation of 10 CFR 30.10(a)(1), which caused PI to be in violation of 
10 CFR 30.9(a). Specifically, as a result of Mr. Mulkey's actions, PI 
violated 10 CFR 30.9(a) by providing to the NRC a letter dated July 14, 
1993, which contained inaccurate information relating to whether 
corrective actions had been taken in response to violations listed in 
an NRC Notice of Violation dated June 16, 1993. Mr. Mulkey also engaged 
in deliberate misconduct, a violation of 10 CFR 30.10(a)(2) by 
deliberately providing false information to the NRC during the December 
2, 1993 telephone discussion with a representative of the NRC. 
Specifically, Mr. Mulkey stated he was the RSO, and that in September 
of 1993 he had visited the Wexford office and executed the duties of an 
RSO.
    Moreover, Mr. Mulkey, an employee of PI, a contractor to licensees 
of the NRC, engaged in deliberate misconduct, a violation of 10 CFR 
30.10(a)(2), by deliberately submitting in March and in October 1993 to 
the Cleveland Electric Illuminating Company (CEIC) and Nebraska Public 
Power District (NPPD), both licensees of the NRC, ET qualification 
certification examination results and Personnel Certification Summaries 
which were inaccurate.
    The NRC must be able to rely on its licensees and their 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. Mulkey's actions in causing the Licensee to be 
in violation of NRC requirements and in deliberately violating NRC 
requirements have raised serious doubt as to whether he can be relied 
upon to comply with NRC requirements and to provide complete and 
accurate information to both the NRC and NRC licensees.
    Consequently, I lack the requisite reasonable assurance that 
information provided to the NRC by Mr. Mulkey, or records required to 
be maintained by the Licensee, will be complete and accurate in all 
material respects if Mr. Mulkey were permitted to be involved in any 
NRC-licensed activities. I also lack the requisite assurance that NRC-
licensed activities will be conducted safely or in accordance with NRC 
requirements or that the health and safety of the public will be 
protected if Mr. Mulkey were involved in NRC-licensed activities. In 
addition, I find that Mr. Mulkey is either unable or unwilling to 
assure that NRC requirements are being and will be followed.
    Therefore, I find that the public health, safety, and interest 
require that Mr. Mulkey be prohibited from involvement in NRC-licensed 
activities for five years from the date of this Order, and if he is 
currently engaged in NRC-licensed activities with another NRC licensee, 
he must immediately cease such activities, and inform the NRC of the 
name, address and telephone number of the employer. Furthermore, 
pursuant to 10 CFR 2.202, I find that the significance of the 
misconduct described above is such that the public health, safety, and 
interest require that this Order be immediately effective.

IV

    Accordingly, pursuant to sections 57, 62, 81, 103, 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, 30.10, 50.5, and 150.20, 
It is hereby ordered, effective immediately, that:
    A. Mr. James L. Mulkey is prohibited for five years from the date 
of this Order from any involvement in NRC-licensed activities. For 
purposes of this Order, licensed activities include the licensed 
activities of: (1) an NRC licensee; (2) an Agreement State licensee 
conducting licensed activities in NRC jurisdiction pursuant to 10 CFR 
150.20; and (3) an Agreement State licensee involved in the 
distribution of products that are subject to NRC jurisdiction. In 
addition, if Mr. Mulkey is currently engaged in NRC-licensed activities 
with another NRC licensee, he must immediately cease such activities, 
and inform the NRC of the name, address and telephone number of the 
employer.
    B. The first time that Mr. Mulkey engages in an NRC-licensed 
activity following the five year prohibition, he shall notify the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, at least five days prior to the performance of 
the licensed activity or his being employed to perform NRC-licensed 
activities (as described in A. above). The notice shall include the 
name, address, and telephone number of the employer or the entity where 
he will be involved in the NRC-licensed activity. In the notification, 
Mr. Mulkey shall include a statement of his commitment to compliance 
with regulatory requirements and the basis as to why the Commission 
should have confidence that he will now comply with applicable NRC 
requirements.
    The Director, Office of Enforcement (OE), may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Mulkey of 
good cause.

V

    In accordance with 10 CFR 2.202, Mr. Mulkey 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 Mr. 
Mulkey 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, NRC Region I, 475 
Allendale Road, King of Prussia, Pennsylvania 19406, and to Mr. Mulkey 
if the answer or hearing request is by a person other than Mr. Mulkey. 
If a person other than Mr. Mulkey 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. Mulkey 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.

[[Page 9220]]

    Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Mulkey 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 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 18th day of February 1997.
    For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program 
Oversight, Investigations and Enforcement.
[FR Doc. 97-4998 Filed 2-27-97; 8:45 am]
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