[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Notices]
[Pages 25240-25242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12181]
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NUCLEAR REGULATORY COMMISSION
[IA 98-001]
Mr. Albert M. Nardslico, Jr.; Order Prohibiting Involvement in
NRC-Licensed Activities (Effective Immediately)
I
Mr. Albert M. Nardslico (Mr. Nardslico) was formerly employed as a
contractor employee at the Niagara Mohawk Power Corporation (NMPC) Nine
Mile Point nuclear facility as a computer programmer. NMPC holds
Facility License Nos. DPR-63 and NPF-69 issued by the Nuclear
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 50.
These licenses authorize NMPC to operate the Nine Mile Point
facilities, Units 1 and 2, in accordance with the conditions specified
therein.
II
In May 1996, NMPC initiated an investigation into whether Mr.
Nardslico and others were involved in the alteration of a computer code
used to select individuals for random drug and alcohol testing. Based
on the evidence developed during the NMPC investigation, as well as a
subsequent review by the NRC Office of Investigations (OI), OI
concluded that Mr. Nardslico and another contractor computer programmer
intentionally altered the fitness-for-duty (FFD) computer program to
ensure that certain individuals (including themselves) would be
excluded from random FFD screening. Specifically, a patch had been
inserted into the computer program to ensure certain individuals would
not be selected. Moreover, the two individuals planned and executed a
scheme (and a number of precautions) to elude detection and prevent
tracing.
These actions caused NMPC to violate 10 CFR 26.24, which requires
that individuals be tested for drugs and alcohol in a statistically
random and unpredictable manner. As a result of this violation, Mr.
Nardslico, the other contractor employee involved in planning the
scheme, and others, were prevented from being selected for random FFD
testing. In addition, during the time in which his name was excluded
from random selection, Mr. Nardslico had access to the site protected
area, which was also at a time when Mr. Nardslico may have been using
marijuana offsite. (Mr. Nardslico admitted, during the predecisional
enforcement conference in the NRC Region I office on February 13, 1998,
and during a June 21, 1996 interview with NMPC investigators, that he
had used marijuana while employed at Nine Mile Point. While he did not
recall the periods of such use, he was unable to confirm that he did
not use marijuana while his name had been excluded from the FFD testing
pool.)
During his interviews with NMPC, as well as during the
predecisional enforcement conference with the NRC, Mr. Nardslico denied
that he was involved in the alteration of the computer program.
Notwithstanding Mr. Nardslico's denials, another contractor computer
programmer, who had admitted his involvement in the alteration,
implicated Mr. Nardslico as also being involved in the alteration.
Specifically, in transcribed interviews under oath, the other contract
computer programmer indicated: (1) That the corruption of the FFD
computer code was a joint effort of him and Mr. Nardslico; (2) that he
and Mr. Nardslico
[[Page 25241]]
in the July/August 1993 timeframe ``fleshed out'' a way to make changes
to the fitness for duty program through the use of the ``C'' program;
(3) that Mr. Nardslico had suggested adding additional persons'' names
to the scheme to ``disperse'' suspicion; and (4) that he had observed
Mr. Nardslico use marijuana on at least one occasion subsequent to the
September 1993 code corruption. In addition, Mr. Nardslico admitted
that he was aware of the computer code alteration, was also aware that
his name was one of those eliminated from the FFD testing pool as part
of the alteration, and was further aware that he was subject to FFD
random testing because of his having access to the Nine Mile Point
site. Nonetheless, Mr. Nardslico did not take appropriate action to
remedy the situation or ensure that his management was made aware that
the computer code had been altered, as he admitted during the
predecisional enforcement conference.
Finally, some of Mr Nardslico's statements on this matter lack
credibility. For example, in his first interview with NMPC on May 20,
1996, he denied any involvement in, or knowledge of, the alteration of
the FFD computer code; however, in a subsequent interview with NMPC on
June 21, 1996, as well as during the predecisional enforcement
conference with the NRC on February 13, 1998, Mr. Nardslico admitted
his knowledge of the alteration of the computer code. Also, although
Mr. Nardslico indicated that he did inform a licensee Purchasing
Supervisor of the alteration shortly after he stated he became aware of
it, that individual denied Mr. Nardslico's assertion, and Mr. Nardslico
admitted that he did not raise this issue with anyone else in the NMPC
organization. In addition, although Mr. Nardslico indicated that he was
not familiar with the ``C'' programming language, which was the
language used for the FFD computer code, his resume listed the ``C''
language as one of the languages with which he was familiar, and others
testified that Mr. Nardslico was familiar with this language. Further,
Mr. Nardslico, during his interviews with NMPC, expressed a willingness
to enter into business relationships with the other individual who was
involved with the alteration of the computer code, while at the same
time indicating that he was disturbed by the other individual's actions
and lack of judgment.
III
Based on the above, the NRC has concluded that Mr. Nardslico
engaged in deliberate misconduct. Mr. Nardslico's actions constitute a
violation of 10 CFR 50.5(a)(1), which prohibits an individual from
engaging 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. In this case, Mr. Nardslico caused
the Licensee to be in violation of 10 CFR 26.24. Specifically,
10 CFR Part 26.24, requires, in part, that as a means to deter
and detect substance abuse, the licensee shall implement a testing
program that includes unannounced drug and alcohol testing that is
to be imposed in a statistically random and unpredictable manner so
that all persons in the population subject to the testing shall have
an equal probability of being selected and tested.
Contrary to the above, at some time prior to May 1996, the
actions of Mr. Nardslico and another contractor computer programmer
resulted in the licensee maintaining an altered FFD computer program
used to ensure that individuals were tested for drugs and alcohol in
a statistically random and unpredictable manner, resulting in
certain individuals (including Mr. Nardslico) being excluded from
random FFD screening. As a result, for a indeterminate period prior
to May 1996, individuals were selected for testing in a manner that
was not statistically random and unpredictable.
The NRC must be able to rely on the Licensee, its contractors, and
the Licensee and contractor employees to comply with NRC requirements.
Mr. Nardslico's involvement in the altering of the FFD program,
including his collusion with another contractor employee to hide that
alteration, constitute a deliberate violation of Commission
regulations, and by doing so, raises serious doubt as to whether he can
be relied upon to comply with NRC requirements, and raises doubt about
his trustworthiness and reliability.
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
would be protected if Mr. Nardslico were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Mr. Nardslico be prohibited from any
involvement in NRC-licensed activities for a period of five years from
the date of this Order. Additionally, for a period of three years after
the five year period of prohibition has expired, Mr. Nardslico is
required to notify the NRC of his acceptance of each employment offer
involving NRC-licensed activities. Furthermore, pursuant to 10 CFR
2.202, I find that the significance of Mr. Nardslico's conduct
described above is such that the public health, safety and interest
require that this Order be immediately effective.
Accordingly, pursuant to Sections 103, 161b, 161i, and 186 of the
Atomic Energy Act of 1954, as amended, and the Commission's regulations
in 10 CFR 2.202, 10 CFR 50.5, and 10 CFR 150.20, it is hereby ordered,
effective immediately, that:
A. Albert M. Nardslico Jr. is prohibited from engaging in
activities licensed by the NRC for five years from the date of this
Order. 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 a period of three years after the five year period of
prohibition has expired, Mr. Nardslico 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.A above, provide notice to the Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C.
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, Mr. Nardslico shall include a
statement of his commitment to compliance with regulatory requirements
and the basis why the Commission should have confidence that he will
comply with applicable NRC requirements.
The Director, OE, may, in writing, relax or rescind any of the
above conditions upon demonstration by Mr. Nardslico of good cause.
V
In accordance with 10 CFR 2.202, Mr. Nardslico 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
[[Page 25242]]
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. Nardslico 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, Rulemakings and Adjudications
Staff, 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, U.S.
Nuclear Regulatory, 475 Allendale Road, King of Prussia, Pennsylvania
19406, and to Mr. Nardslico if the answer or hearing request is by a
person other than Mr. Nardslico. If a person other than Mr. Nardslico
requests a hearing, that person shall set forth with particularity the
manner in which that person's 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. Nardslico 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. Nardslico 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 28th day of April 1998.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 98-12181 Filed 5-6-98; 8:45 am]
BILLING CODE 7590-01-P