[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Notices]
[Pages 9177-9178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1620]


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NUCLEAR REGULATORY COMMISSION

[IA 05-041]


In the Matter of Theodore D. Simmons, II; Confirmatory Order 
(Effective Immediately)

I

    Theodore D. Simmons, II (Mr. Simmons) is employed by a contractor 
hired to provide various health and safety services to NASA's Goddard 
Space Flight Center. Mr. Simmons serves as the Radiation Safety Officer 
(RSO) on the NRC license.

II

    On January 16, 2003, the NRC Office of Investigations (OI) 
initiated an investigation (OI Case No. 1-2003-011) at NASA. Based on 
the evidence developed during its investigations, OI did substantiate 
that Mr. Simmons deliberately failed to report missing licensed 
material as required, and provided incomplete and inaccurate 
information, verbally and in writing, to the NRC in violation of 10 CFR 
30.9(a). The results of the investigation, completed on May 25, 2005, 
were sent to Mr. Simmons in a letter dated August 18, 2005.

III

    Subsequent to the inspection in December 2002, and after becoming 
aware of the details of the apparent violation, Mr. Simmons undertook a 
number of corrective actions to assure that these events would not 
recur. These actions included changing the manner in which assessments 
were completed and source location was verified, and attendance at a 
40-hour Radiation Safety Officer course in November 2005 which 
addressed the issue of communications and reportability to the NRC.
    In response to the NRC's August 18, 2005, letter, Mr. Simmons 
requested the use of Alternative Dispute Resolution (ADR) to resolve 
these apparent violations and pending enforcement action. ADR is a 
process in which a neutral mediator, with no decision-making authority, 
assists the NRC and the individual to resolve any disagreements on 
whether a violation occurred, the appropriate enforcement action, and 
the appropriate corrective actions. At Mr. Simmons' request: (1) A 
joint Alternative Dispute Resolution (ADR) mediation session was held 
at the NASA facility in Greenbelt, Maryland, on November 4, 2005, 
between Mr. Simmons, NASA, and the NRC; and (2) an individual ADR 
session was held in the Region I Office in King of Prussia, PA, on 
December 19, 2005, between Mr. Simmons and the NRC, at which NASA 
participated in portions of the mediation. These ADR sessions were 
mediated by a professional mediator, arranged through Cornell 
University's Institute of Conflict Management. Based on the discussions 
during the ADR sessions, a settlement agreement was reached regarding 
this matter. The elements of the settlement agreement are as follows:
    1. The NRC determined that violations of NRC requirements occurred 
at NASA when: (a) Contrary to 10 CFR 20.1501, Mr. Simmons failed to 
perform a reasonable and necessary evaluation of information provided 
to him in memoranda from a health physics technician on September 10, 
2002, and October 21, 2002, to determine whether the licensed material 
reported, in those memoranda, as missing at the NASA Goddard Space 
Flight Center in Greenbelt, Maryland, reached the threshold for 
reportability under 10 CFR 20.2201; and (b) contrary to 10 CFR 30.9 (a) 
Mr. Simmons provided inaccurate information to an NRC inspector during 
an NRC inspection on December 18-19, 2002, when he provided an 
inspector with an inventory form used by health physics technicians to 
account for sources indicating all sources were accounted for, when in 
fact, sources were not accounted for at the time.
    2. Mr. Simmons agreed that he caused NASA to violate NRC 
requirements when he failed to perform a reasonable and necessary 
evaluation, pursuant to 10 CFR 20.1501, of information provided to him 
by the health physics technician, to determine whether the licensed 
material reported as missing in the memoranda identified in Item 1 
reached the threshold for reportability under 10 CFR 20.2201. Mr. 
Simmons also agreed that he provided inaccurate information during the 
December 18-19, 2002, inspection, as noted in Item 1.
    3. The NRC maintained that Mr. Simmons' actions were willful, at a

[[Page 9178]]

minimum, in careless disregard of NRC requirements, because Mr. Simmons 
had reasonable information that material was not accounted for, yet 
failed to evaluate and take appropriate action, and he provided 
information to the inspector that was inaccurate. Mr. Simmons contended 
that his actions were not willful or in careless disregard, in part, 
because he had doubts about the accuracy of the information, and did 
not believe it warranted an immediate evaluation. The NRC and Mr. 
Simmons agreed to disagree on willfulness of his actions.
    4. While Mr. Simmons and the NRC agreed to disagree on the 
willfulness of Mr. Simmons' actions, Mr. Simmons and the NRC agreed 
that Mr. Simmons' actions caused NASA to be in violation of NRC 
requirements, which resulted in an enforcement action that will be 
taken against NASA as part of a separate ADR agreement between NASA and 
the NRC.
    5. Mr. Simmons, subsequent to the NRC's identification of these 
violations, took actions to assure that he learned from these 
violations and provided the NRC with assurance that it would not recur. 
These actions included attendance at a 40-hour Radiation Safety Officer 
course in November 2005 which addressed the issue of communications and 
reportability to the NRC.
    6. During the ADR mediation session, Mr. Simmons recognized an 
opportunity for others in the industry to learn from his actions which 
contributed to the violations set forth in Item 1. Therefore, Mr. 
Simmons agreed to take the following future corrective actions, namely: 
(a) Providing a lessons learned presentation to all NASA Goddard users 
of material, as well as to other NASA Goddard employees willing to 
attend, addressing, at a minimum, reporting requirements, requirements 
for ensuring completeness and accuracy of information, and being 
forthright with the NRC in response to questions from inspectors; and 
(b) providing a similar session to employees from other NASA facilities 
at a future NASA Occupational Health Conference in 2006.
    7. Mr. Simmons agreed to complete the additional actions in Item 6 
by August 31, 2006, and send a letter to the NRC informing the NRC that 
these actions are complete. Mr. Simmons agreed to send this letter to 
the NRC within 30 days of completion of all actions.
    8. In light of the actions Mr. Simmons took as described in Item 5, 
the actions Mr. Simmons has committed to take as described in Items 6 
and 7, and the action that the NRC will take against NASA for the 
violations, the NRC agrees to neither issue a Notice of Violation to 
Mr. Simmons, nor issue an Order banning him from NRC-licensed 
activities. Rather, the NRC will issue a letter and Confirmatory Order 
to Mr. Simmons confirming the commitments set forth herein. This letter 
and the confirmatory Order will be publically available in ADAMS, will 
appear on the NRC ``Significant Enforcement Actions--Individuals'' 
website for a period of 1 year, and will be discussed in a press 
release announcing the ADR agreement between NASA and the NRC.
    9. Mr. Simmons agreed to issuance of the letter and Confirmatory 
Order confirming this agreement and also agrees to waive any request 
for a hearing regarding this Confirmatory Order.

IV

    In light of the actions Mr. Simmons has taken and agreed to take to 
correct the violations and prevent recurrence, as set forth in Section 
III above, the NRC has concluded that its concerns regarding the 
violations can be resolved through the NRC's confirmation of the 
commitments as outlined in this Confirmatory Order.
    I find that Mr. Simmons' commitments as set forth in Section III 
above are acceptable. However, in view of the foregoing, I have 
determined that these commitments shall be confirmed by this 
Confirmatory Order. Based on the above, and Mr. Simmons' consent, this 
Confirmatory Order is immediately effective upon issuance.

V

    Accordingly, pursuant to Sections 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 and 10 CFR Parts 20 and 30, it is hereby 
ordered, that:
    1. Mr. Simmons will: (a) Provide a lessons learned presentation to 
all NASA Goddard users of material, as well as to other NASA Goddard 
employees willing to attend, addressing, at a minimum, reporting 
requirements, requirements for ensuring completeness and accuracy of 
information, and being forthright with the NRC in response to questions 
from inspectors; and (b) provide a similar session to employees from 
other NASA facilities at a future NASA Occupational Health Conference 
in 2006.
    2. Mr. Simmons will complete these additional actions by August 31, 
2006, and will send a letter to the NRC informing the NRC that these 
actions are complete. Mr. Simmons will send this letter to the NRC 
within 30 days of completion of all actions.
    The Director, Office of Enforcement, may relax or rescind, in 
writing, any of the above conditions upon a showing by Mr. Simmons of 
good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Simmons, may request a hearing within 20 days of its issuance. 
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 must include a 
statement of good cause for the extension. Any request for a hearing 
shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Chief, Rulemaking and Adjudications Staff, 
Washington, DC 20555. Copies of the hearing request shall also 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, and to the Director of the 
Division of Regulatory Improvement Programs at the same address. 
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 by 
means of facsimile transmission to 301-415-3725 or e-mail to 
[email protected]. If such a person 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(d) and (f).
    If a hearing is requested by 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 Confirmatory Order shall be 
sustained. An answer or a request for a hearing shall not stay the 
effectiveness date of this order.

    Dated this 10th day of February 2006.

    For the Nuclear Regulatory Commission.
Michael Johnson,
Director, Office of Enforcement.
[FR Doc. 06-1620 Filed 2-21-06; 8:45 am]
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