[Federal Register Volume 72, Number 249 (Monday, December 31, 2007)]
[Notices]
[Pages 74347-74350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25412]
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NUCLEAR REGULATORY COMMISSION
[IA-07-048]
In the Matter of Cary W. Hedger; Order Prohibiting Involvement in
NRC-Licensed Activities (Effective Immediately)
I
Cary W. Hedger was employed as the Operations Manager and Assistant
Radiation Safety Officer (RSO) at Alpha Omega Services, Inc. (AOS) in
January
[[Page 74348]]
2003. Currently, Mr. Hedger is the RSO, President, and an owner of AOS.
In January 2003, AOS was the holder of a U.S. Nuclear Regulatory
Commission (NRC or Commission) Certificate of Compliance (CoC) No.
5979, Revision 10, for the Model No. 5979 package (NRC Docket Number
71-5979) issued by the NRC, and an NRC-approved Quality Assurance (QA)
Program Approval holder (NRC Docket Number 71-0086) pursuant to Part 71
of Title 10 of the Code of Federal Regulations (10 CFR). The CoC
authorized use of the Model No. 5979 package under the general license
provisions of 10 CFR 71.12 [currently 10 CFR 71.17]. The QA Program
Approval satisfied the requirements of 10 CFR 71.12(b) [currently 10
CFR 71.17(b)], and 10 CFR 71.101(c) [currently 10 CFR 71.101(c)(1)] by
authorizing activities be conducted under criteria of Subpart H of 10
CFR Part 71, ``Quality Assurance.''
II
On November 18, 2004, an NRC inspection was conducted at the AOS
facility. During that inspection, certain nonconformances regarding a
shipping package, serial number 1B, CoC No. 5979, Model No. 5979, were
brought to the NRC's attention. Subsequently, concerns about the
nonconformances led to an investigation by the NRC's Office of
Investigation.
Based on the investigation and Mr. Hedger's presentation at a
November 8, 2007, pre-decisional enforcement conference, the NRC has
concluded that Mr. Hedger engaged in two examples of deliberate
misconduct in violation of 10 CFR 71.8, ``Deliberate misconduct.''
First, Cary W. Hedger deliberately provided materially inaccurate
information to an NRC licensee and to a contractor to the licensee.
Specifically, in January 2003, Mr. Hedger performed a maintenance
inspection of a Model 5979 shipping package, serial number 1B, NRC
Certificate of Compliance (CoC) No. 5979, and certified that the
package conformed to CoC No. 5979, Revision 10. Mr. Hedger purposely
indicated on the maintenance inspection checklist that the cask end
caps conformed to the CoC when he knew they did not. The cask end caps
did not conform to the drawings in the CoC because they were physically
(weight and materials) and dimensionally (end cap thickness and length
of bolts) different from the approved end cap designs. AOS then
returned the package to its owner, Foss Therapy Services (FTS), along
with the inaccurate maintenance inspection checklist. SPEC was an NRC
licensee pursuant to 10 CFR Part 110, and a CoC and QA Program Approval
holder under 10 CFR Part 71. FTS subsequently provided the package to
Source Production and Equipment Company (SPEC) for export of licensed
radioactive material on FTS's behalf. AOS specifically provided the
inaccurate maintenance inspection checklist to FTS by, at minimum,
giving it to an official of FTS, who in his capacity as a contractor to
SPEC performed inspections of packages exported by SPEC. When
performing pre-shipment inspections of the subject FTS package for
SPEC, the contractor relied on the inaccurate checklist, instead of
comparing the package to the drawings in CoC No. 5979, to certify that
the package met all federal requirements. The contractor also supplied
the inaccurate maintenance inspection checklist to SPEC. The inaccurate
checklist was material to the NRC because it concealed the fact that
the package did not comply with CoC No. 5979.
Second, Cary W. Hedger deliberately caused an NRC licensee to
violate NRC requirements. SPEC made at least three export shipments of
licensed radioactive material between July 2003 and May 2004, when the
Model No. 5979 package was in a nonconforming condition. SPEC relied
upon its contractor's certification that the package met all federal
requirements, and upon the inaccurate maintenance inspection checklist
created by Mr. Hedger. Because SPEC used the nonconforming package to
deliver for transport and to transport licensed material, and pursuant
to 10 CFR 71.17(c)(2) [formerly 71.12(c)(2)], ``General license: NRC-
approved package,'' SPEC did not have a license to deliver for
transport or to transport licensed material. As a result, SPEC violated
10 CFR 71.3, ``Requirement for license,'' which provides that a license
is necessary to deliver for transport or to transport licensed
material.
III
Based on the above, it appears that Cary W. Hedger has engaged in
deliberate misconduct in violation of 10 CFR 71.8, ``Deliberate
misconduct.'' The NRC must be able to rely on the certificate and QA
Program Approval holder and its employees to comply with NRC
requirements, including the requirement to provide information that is
complete and accurate in all material respects. Mr. Hedger's actions in
causing SPEC, an NRC Licensee, to violate 10 CFR 71.3, and his
misrepresentations to SPEC, have raised serious doubt as to whether he
can be relied upon to comply with NRC requirements.
While the NRC is not aware of actual safety consequences associated
with the shipments, the potential safety consequences were significant,
considering the potential adverse impact of shipping radioactive
materials in an unapproved package design that had not been
demonstrated to meet the transportation package approval standards for
both normal and hypothetical accident conditions as required by 10 CFR
part 71. Of the many controls that are in place to assure public health
and safety during the transport of radioactive materials, one of the
most important is that the configuration of the package conforms to
that analyzed and approved by the NRC staff, through the package CoC
process, so as to assure integrity of the package during transportation
for both normal and hypothetical accident conditions. In this case, the
package integrity is of particular safety concern given the quantities
of licensed radioactive material that were transported between July
2003 and May 2004.
Consequently, I lack the requisite reasonable assurance that
licensed, certificated or QA activities can be conducted in compliance
with the Commission's requirements, and that the health and safety of
the public will be protected, if Cary W. Hedger is permitted at this
time to be involved in NRC-licensed, certificated or QA activities.
Therefore, the public health, safety, and interest require that Mr.
Hedger be prohibited from any involvement in all NRC-licensed
activities, including those associated with 10 CFR part 71 packaging QA
Program Approval or certificate holder activity, for a period of three
years from the date of this Order. Ordinarily, NRC would prohibit
involvement in licensed activities for a period of five years in a case
such as this. However, the NRC is mitigating the prohibition to three
years because Mr. Hedger identified certain nonconformances in the
shipping package number 1B, CoC No. 5979, Model No. 5979, to the NRC.
Although he did not identify the nonconforming end-caps to the NRC, Mr.
Hedger's disclosure ultimately led to the discontinued use of the
package in the nonconforming condition. Furthermore, pursuant to 10 CFR
2.202, ``Orders,'' I find that the significance of Mr. Hedger'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 81, 161b, 161i, 161o, 182, and
186 of the
[[Page 74349]]
Atomic Energy Act of 1954, as amended, and the Commission's regulations
in 10 CFR 2.202, 10 CFR 71.8, and 10 CFR 150.20, it is hereby ordered,
effective immediately, that:
1. Cary W. Hedger is prohibited for three years from the date of
this Order from engaging in NRC-licensed activities. 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, the licensing, packaging certificate and QA program
approval requirements of 10 CFR part 71, and those activities of
Agreement State licensees conducted pursuant to the authority granted
by 10 CFR 150.20.
2. If Cary W. Hedger is currently involved with another licensee in
NRC-licensed activities, other than AOS, he must immediately cease
those activities, and inform the NRC of the name, address, and
telephone number of that licensee, and provide a copy of this Order to
the employer.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Cary W.
Hedger of good cause.
V
In accordance with 10 CFR 2.202, Cary W. Hedger must submit an
answer to this Order within 20 days of its issuance. In addition, Cary
W. Hedger, and any other persons adversely affected by this Order may
request a hearing on this Order 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, and include a statement of good cause for the extension.
The answer shall be in writing and under oath or affirmation, and
shall specifically admit or deny each allegation or charge made in this
Order. The answer shall set forth the matters of fact and law on which
Cary W. Hedger or other persons adversely affected relies and the
reasons as to why this Order should not have been issued. The answer
may consent to the Order. Any answer shall be submitted to the
Secretary, U.S. Nuclear Regulatory Commission, ATTN: Chief, Rulemakings
and Adjudications Staff, Washington, DC 20555-0001. Copies shall also
be sent to: the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; the Assistant General
Counsel for Materials Litigation and Enforcement at the same address;
and to Cary W. Hedger if the answer is by a person other than Cary W.
Hedger.
If a person other than Cary W. Hedger requests a hearing, that
person shall set forth with particularity the manner in which his or
her interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d) and (f).
If Cary W. Hedger or a person whose interest is adversely affected
requests a hearing, 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), Cary W. Hedger, or any other
person adversely affected by this Order 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. The motion must state with particularity the
reasons why the order is not based on adequate evidence and must be
accompanied by affidavits or other evidence relied on.
A request for a hearing or to set aside the immediate effectiveness
of this order must be filed in accordance with the NRC E-Filing rule,
which became effective on October 15, 2007. The NRC E-filing Final Rule
was issued on August, 28 2007, (72 Fed. Reg. 49,139) and codified in
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process
requires participants to submit and serve documents over the internet
or, in some cases, to mail copies on electronic optical storage media.
Participants may not submit paper copies of their filings unless they
seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any NRC proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
when the requestor (or its counsel or representative) already holds an
NRC-issued digital ID certificate). Each requestor will need to
download the Workplace Forms Viewer\TM\ to access the Electronic
Information Exchange (EIE), a component of the E-Filing system. The
Workplace Forms Viewer\TM\ is free and is available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information
about applying for a digital ID certificate also is available on NRC's
public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a requestor has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
request for a hearing through EIE. Submissions should be in Portable
Document Format (PDF) in accordance with NRC guidance available on the
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html.
A filing is considered complete at the time the filer submits its
document through EIE. To be timely, electronic filings must be
submitted to the EIE system no later than 11:59 p.m. Eastern Time on
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming
receipt of the document. The EIE system also distributes an e-mail
notice that provides access to the document to the NRC Office of the
General Counsel and any others who have advised the Office of the
Secretary that they wish to participate in the proceeding, so that the
filer need not serve the document on those participants separately.
Therefore, any others who wish to participate in the proceeding (or
their counsel or representative) must apply for and receive a digital
ID certificate before a hearing request is filed so that they may
obtain access to the document via the E-Filing system.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737.
Participants who believe that they have good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by (1) first class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
[[Page 74350]]
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
Participants are requested not to include copyrighted materials in
their works.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, this Order 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 request for hearing shall not stay the immediate
effectiveness of this order.
For the Nuclear Regulatory Commission.
Dated this 20th day of December 2007.
Martin J. Virgilio,
Deputy Executive Director for Materials, Waste, Research, State, Tribal
and Compliance Programs, Office of the Executive Director for
Operations.
[FR Doc. E7-25412 Filed 12-28-07; 8:45 am]
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