[Federal Register Volume 71, Number 189 (Friday, September 29, 2006)]
[Notices]
[Pages 57572-57573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16075]
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NUCLEAR REGULATORY COMMISSION
[IA-06-036]
In the Matter of Mr. Gary Abel; Confirmatory Order (Effective
Immediately)
I
Mr. Gary Abel is a former General Manager of the Sterigenics
International Inc. (Sterigenics), facility in Tustin, California.
II
An NRC inspection was conducted at Sterigenics' facility in Tustin,
California on October 18-19, 2004, to review compliance with the NRC's
June 6, 2003, Order Imposing Compensatory Measures (Order) for
Panoramic and Underwater Irradiator Licensees. Following that
inspection, an investigation was initiated by the NRC Office of
Investigations (OI) in order to determine whether Mr. Abel, who was the
General Manager of the facility at the time, engaged in deliberate
misconduct. Based on the results of the NRC inspection and
investigation, the NRC identified that Mr. Abel acted in apparent
violation of 10 CFR 30.10, ``Deliberate misconduct.'' 10 CFR 30.10
states, in part, that any employee of a licensee may not: (1) Engage in
deliberate misconduct that causes a licensee to be in violation of any
order issued by the Commission; or (2) deliberately submit to the NRC
information that the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC.
Attachment 3 of the NRC's June 6, 2003 Order requires certain specific
handling requirements for documents containing Safeguards Information-
Modified Handling (SGI-M).
Based on the inspection and investigation, the NRC was concerned
that between December 2003 and April 2004, Mr. Abel engaged in
deliberate misconduct when he faxed, over unprotected
telecommunications circuits, a document containing SGI-M, when he knew
this was prohibited by the Order. This act caused the licensee to be in
violation of the June 6, 2003, Order. In addition, the NRC was
concerned that Mr. Abel submitted to the NRC information that he knew
was incomplete or inaccurate regarding some of the circumstances
relating to the faxed document.
III
In a letter dated March 21, 2006, the NRC identified to Mr. Abel an
apparent violation of 10 CFR 30.10, and offered Mr. Abel the
opportunity to either request a predecisional enforcement conference or
request Alternative Dispute Resolution (ADR) with the NRC in an attempt
to resolve any disagreement on whether a violation occurred and if a
violation did in fact occur, the appropriate enforcement sanction. In
response to the March 21, 2006 letter, Mr. Abel requested ADR to
resolve the matter with the NRC. ADR is a process in which a neutral
mediator with no decision-making authority assists the NRC and Mr. Abel
to resolve any differences regarding the matter.
An ADR session was held between Mr. Abel and the NRC in Lisle,
Illinois,
[[Page 57573]]
on August 4, 2006. During that ADR session, an agreement was reached.
The elements of the agreement consisted of the following:
1. The NRC and Mr. Abel agree that a violation of 10 CFR 30.10
occurred. Specifically, 10 CFR 30.10 prohibits, in part, any licensee
or licensee employee from engaging in deliberate misconduct that causes
a licensee to be in violation of any rule or Order issued by the
Commission. Mr. Abel agrees that he deliberately faxed a document
containing SGI-M information over unprotected telecommunications
circuits to a security contractor in violation of the NRC's June 6,
2003, Order Imposing Compensatory Measures (Order) for Panoramic and
Underwater Irradiator Licensees. This caused Mr. Abel's former employer
to be in violation of the Order.
2. Mr. Abel does not agree that he violated 10 CFR 30.10 by
deliberately providing information that was inaccurate and incomplete
to the NRC. The NRC and Mr. Abel agree to disagree regarding this
point.
3. The NRC and Mr. Abel agree that the actions in this paragraph
are sufficient to address the NRC's concerns. Mr. Abel agrees to
issuance of a letter and Confirmatory Order confirming this agreement,
and also agrees to waive any request for a hearing regarding this
Confirmatory Order. The Confirmatory Order would include the following
elements:
A. Mr. Abel will not engage in future NRC or Agreement State
licensed activities for a period of 1 year to begin on the date of this
Confirmatory Order or on October 1, 2006, whichever date is sooner.
B. Not later than 90 days from the date of the Confirmatory Order,
Mr. Abel will write an article for publication in the NRC's NMSS
Newsletter that is mutually agreeable. The article will address the
following elements: (1) That he was employed at a senior position at an
irradiation facility, (2) how an individual should conduct themselves
during an NRC inspection (e.g., the need for candor and forthrightness,
the need to acknowledge violations forthrightly, if found, the
potential consequences to an individual who does not provide complete
and accurate information to the NRC, etc. * * *), and (3) the
importance of controlling SGI-M material. The NRC agrees that Mr.
Abel's article will be published anonymously, and Mr. Abel will submit
the article to an addressee which the NRC will provide.
C. In light of Mr. Abel's agreement as described in Item 3, the NRC
agrees not to take any further action against Mr. Abel regarding this
matter.
D. Mr. Abel understands that the NRC, as part of its normal
process, will issue a press release with the Confirmatory Order. The
NRC will provide Mr. Abel a copy of the press release prior to its
release.
On September 16, 2006, Mr. Abel consented to issuing this
Confirmatory Order with the commitments, as described in Section IV
below. Mr. Abel further agreed in his September 16, 2006, consent and
waiver that this Confirmatory Order is to be effective upon issuance
and that he has waived his right to a hearing. Implementation of these
commitments will provide enhanced assurance that documents containing
SGI-M will be appropriately protected and will resolve the NRC's
concerns. I find that Mr. Abel's commitments as set forth in Section IV
are acceptable and necessary and conclude that with these commitments
the public health and safety are reasonably assured. In view of the
foregoing, I have determined that the public health and safety require
that Mr. Abel's commitments be confirmed by this Order. Based on the
above and Mr. Abel's consent, this Confirmatory Order is immediately
effective upon issuance.
IV
Accordingly, pursuant to Sections 147, 161b, 161i, 161o, 182 and
186 of the Atomic Energy Act of 1954, as amended, the Commission's
regulations in 10 CFR 2.202 and 10 CFR Part 30, and the Commission's
June 6, 2003 Order, it is hereby ordered, effective immediately, that:
(1) Mr. Abel will not engage in future NRC or Agreement State
licensed activities for a period of 1 year to begin on the date of this
Confirmatory Order or on October 1, 2006 whichever date is sooner.
4. Not later than 90 days from the date of the Confirmatory Order,
Mr. Abel will write an article for publication in the NRC's NMSS
Newsletter that is mutually agreeable. The article will address the
following elements: (1) That he was employed at a senior position at an
irradiation facility, (2) how an individual should conduct themselves
during an NRC inspection (e.g., the need for candor and forthrightness,
the need to acknowledge violations forthrightly, if found, the
potential consequences to an individual who does not provide complete
and accurate information to the NRC), and (3) the importance of
controlling SGI-M material. The NRC agrees that Mr. Abel's article will
be published anonymously, and Mr. Abel will submit the article to an
addressee which the NRC will provide.
The Director, Office of Enforcement may relax or rescind, in
writing, any of the above conditions upon a showing by Mr. Abel of good
cause.
V
Any person adversely affected by this Confirmatory Order, other
than Mr. Abel, 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 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:
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 IV, 611 Ryan Plaza Drive,
Suite 400, Arlington, Texas 76011, and to Mr. Abel. Because of the
possible 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 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 should be
sustained.
An answer or a request for hearing shall not stay the immediate
effectiveness of this order.
Dated this 22nd day of September, 2006.
For the nuclear regulatory commission.
Cynthia A. Carpenter,
Director, Office of Enforcement.
[FR Doc. E6-16075 Filed 9-28-06; 8:45 am]
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