[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Notices]
[Pages 25239-25240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12182]


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NUCLEAR REGULATORY COMMISSION

[IA 98-002]


Mr. Thomas C. Johnson; Order Prohibiting Involvement in NRC-
Licensed Activities (Effective Immediately)

I

    Mr. Thomas C. Johnson (Mr. Johnson) 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. 
Johnson 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. Johnson 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 in a statistically random and 
unpredictable manner. As a result of this violation, Mr. Johnson, the 
other contractor, and others, were prevented from being selected for 
random FFD testing.
    Although Mr. Johnson, in an interview with NMPC investigators on 
May 15, 1996, denied knowledge of this matter, during a subsequent 
interview by NMPC investigators on May 22, 1996, Mr. Johnson admitted 
that he was involved in a joint effort with another individual in 
altering the computer program for FFD testing selection. Mr. Johnson 
was offered an opportunity for an enforcement conference with the NRC, 
but declined.

III

    Based on the above, the NRC has concluded that Mr. Johnson engaged 
in deliberate misconduct. Mr. Johnson'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. Johnson 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, Mr. 
Johnson and another contractor computer programmer altered the 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 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. Johnson's action in altering the FFD program, and his collusion 
with another individual to hide that alteration, constitute deliberate 
violations of Commission regulations, and by doing so, raises serious 
doubt as to whether he can be relied upon to comply with NRC 
requirements and to provide complete and accurate information to NRC 
Licensees and their contractors in the future, 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. Johnson were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Johnson 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. Johnson 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. Johnson'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 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. Thomas C. Johnson 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.
    B. For a period of three years after the five year period of 
prohibition has expired, Mr. Johnson shall, within 20 days of his 
acceptance of each

[[Page 25240]]

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. Johnson 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. Johnson of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Johnson 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. Johnson 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. Johnson if the answer or hearing request is by a 
person other than Mr. Johnson. If a person other than Mr. Johnson 
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. Johnson 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. Johnson 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. 98-12182 Filed 5-6-98; 8:45 am]
BILLING CODE 7590-01-P