[Federal Register Volume 70, Number 182 (Wednesday, September 21, 2005)]
[Notices]
[Pages 55428-55429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18797]


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NUCLEAR REGULATORY COMMISSION

[IA-05-042]


John Myers, Order Prohibiting Involvement in NRC-Licensed 
Activities (Effective Immediately)

I

    John Myers (Mr. Myers) is owner, President and sole employee of 
Universal Calibrations, located in Westbrook, Maine. Universal 
Calibrations does not possess a license issued by the Nuclear 
Regulatory Commission pursuant to 10 CFR part 30 or any Agreement 
State. Mr. Myers is certified by Campbell-Pacific Nuclear 
International, Inc. (CPN) a manufacturer of nuclear gauging devices, 
and an Agreement State Licensee located in California, to sell and 
repair their portable gauges and to train users in gauge operations. 
Mr. Myers performed such services for Engineering Consulting Service, 
(ECS, now ECS Mid-Atlantic, LLC), an NRC licensee, based on his CPN 
certifications. These services were provided to the licensee at its 
Richmond and Chantilly, Virginia facilities.

II

    On April 9, 2004, the NRC Office of Investigations (OI) initiated 
an investigation to determine if Mr. Myers (1) deliberately provided 
materially inaccurate information to staff at the ECS, Richmond, 
facility in order to purchase a portable nuclear gauge containing NRC 
licensed material with the knowledge that he was not authorized to 
possess licensed material, and (2) took possession of several other 
portable nuclear gauges from the ECS, Chantilly Facility without a NRC 
or Agreement State license. OI Report No. 1-2004-019 was issued on 
March 16, 2005, and the information developed during that investigation 
concluded that Mr. Myers was not licensed by the NRC or an Agreement 
State, to acquire or possess licensed material in moisture/density 
gauging devices. Based on the evidence developed during the 
investigation, the NRC concluded that Mr. Myers (1) took possession of 
a portable nuclear gauge on September 15, 2003, from the ECS, Richmond, 
facility after deliberately providing materially inaccurate information 
to facility staff, with the knowledge that he was not authorized to 
possess licensed material and (2) took possession of several portable 
nuclear gauges on April 29, 2004, and other undetermined dates prior to 
this date, from the ECS, Chantilly Facility and transported them to the 
State of Maine. Mr. Myers was not licensed by the NRC as required under 
10 CFR part 30 or an Agreement State, to acquire or possess any of the 
gauges.
    During a previous investigation (OI Case No. 1-2004-018), issued on 
November 30, 2004, the NRC also determined that in November 2003, Mr. 
Myers took possession of a portable nuclear gauge from Triad 
Engineering, Inc. without a license to do so. On February 24, 2005, a 
Notice of Violation was issued to Triad Engineering, Inc. for 
transferring licensed material to Mr. Myers without verifying that he 
was authorized to receive the material.
    In all of the cases, Mr. Myers transported the portable nuclear 
gauges (containing NRC licensed radioactive material) that he acquired 
from the ECS facilities and Triad Engineering, to his facility (UC) in 
the State of Maine, knowing that he was not authorized to do so.

III

    Based on the above, the NRC has concluded that Mr. Myers, owner, 
President and sole employee of Universal Calibrations, deliberately 
violated 10 CFR 30.3 when he took possession of several portable 
gauging devices containing licensed radioactive material without a NRC 
or Agreement State license to possess byproduct material. 10 CFR 30.3 
requires that no person shall manufacture, produce, transfer, receive, 
acquire, own, possess, or use byproduct material except as authorized 
in a specific or general license. This requirement is intended to 
assure that such persons have the requisite facilities, training and 
experience to protect public health and safety from any radiation 
hazard associated with the use of byproduct material. The NRC must be 
able to rely on its licensees, and employees of licensees, to comply 
with NRC requirements, including the requirement that licensed material 
cannot be acquired, possessed or transferred without a specific or 
general license. The deliberate violation of 10 CFR 30.3 by Mr. Myers, 
as discussed above, has raised serious doubt as to whether he can be 
relied upon to comply with NRC requirements in the future.
    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. Myers were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health, 
safety and interest require that Mr. Myers be prohibited from any 
involvement in NRC-licensed activities for a period of five (5) years 
from the date of this Order. Furthermore, pursuant to 10 CFR 2.202, I 
find that the significance of Mr. Myers' 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:
    1. Mr. John Myers is prohibited from engaging in NRC-licensed 
activities for a period of five (5) 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. If Mr. John Myers is currently involved in NRC-licensed 
activities, he must immediately cease those activities, and inform the 
NRC of the name, address and telephone number of the employer or other 
entity, and provide a copy of this Order to the employer or other 
entity.
    3. Subsequent to expiration of the five year prohibition, Mr. John 
Myers shall, for the next five years and within 20 days of acceptance 
of his first employment offer involving NRC-licensed activities or his 
becoming involved in NRC-licensed activities, as defined in Paragraph 
IV.1 above, provide notice to the Director, Office of Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555, of the name, 
address, and telephone number of the employer or entity where he is, or 
will be, involved in the NRC-licensed activities. In the notification, 
John Myers shall include a statement of his commitment to compliance 
with regulatory 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

[[Page 55429]]

the above conditions upon demonstration by Mr. Myers of good cause.

V

    In accordance with 10 CFR 2.202, John Myers 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, DC 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. Myers 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: 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 Materials Litigation and Enforcement at the same address, 
to the Regional Administrator, NRC Region I, 475 Allendale Road, King 
of Prussia, Pennsylvania, and to Mr. Myers if the answer or hearing 
request is by a person other than Mr. Myers. Because of continuing 
disruptions in delivery of mail to United States Government offices, it 
is requested that answers and requests for hearing be transmitted to 
the Secretary of the Commission either by means of facsimile 
transmission to 301-415-1101 or by e-mail to [email protected] and 
also to the Office of the General Counsel either by means of facsimile 
transmission to 301-415-3725 or by e-mail to [email protected]. If 
a person other than Mr. Myers requests a hearing, that person shall set 
forth with particularity the manner in which his interest is adversely 
affected by this Order and shall address the criteria set forth in 10 
CFR 2.309.
    If a hearing is requested by Mr. Myers 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. Myers, 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.

    For the Nuclear Regulatory Commission.

    Dated this 9th day of September 2005.

Martin J. Virgilio,
Deputy Executive Director for Materials, Research, State and Compliance 
Programs, Office of the Executive Director for Operations.
[FR Doc. 05-18797 Filed 9-20-05; 8:45 am]
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