[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Notices]
[Pages 50657-50659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19833]


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NUCLEAR REGULATORY COMMISSION

[IA-08-008]


In the Matter of Mr. Patrick A. Kelly; Order Prohibiting 
Involvement in NRC-Licensed Activities (Effective Immediately)

I

    Mr. Patrick A. Kelly is employed as a radiographer at Alaska 
Industrial X-Ray, Inc. (AIX) located in Anchorage, Alaska. AIX holds 
License No. 50-16084-01 issued by the Nuclear Regulatory Commission 
(NRC or Commission) pursuant to 10 CFR Part 34 to conduct radiography. 
The license authorizes AIX to possess sealed radioactive sources for 
use in conducting industrial radiography activities in accordance with 
the conditions specified therein.

II

    On June 4, 2007, an investigation was initiated by the NRC's Office 
of Investigations (OI), in part, to determine whether Mr. Kelly engaged 
in deliberate misconduct by performing radiography with only one 
radiographer present at the Arctic Slope Regional Corporation Energy 
Services (ASRC) facility, a temporary jobsite. A predecisional 
enforcement conference (PEC) was held on June 5, 2008, with employees 
of AIX, including Mr. Kelly, in an effort to obtain AIX's point of view 
on the violations.
    Based on our review of the information obtained during the PEC and 
from the investigation, two violations of the NRC's rule prohibiting 
deliberate misconduct, 10 CFR 30.10, were identified. First, Mr. Kelly 
engaged in deliberate misconduct in violation of 10 CFR 30.10(a)(1) by 
causing AIX to be in violation of 10 CFR 34.41(a) (also called the two-
person rule) when he

[[Page 50658]]

conducted radiography alone at the ASRC facility on numerous occasions 
since about 2004. Second, he provided information that he knew was 
incomplete and inaccurate during his sworn statement to NRC 
investigators, in violation of 10 CFR 30.10(a)(2), on July 24, 2007.
    During his interview on July 24, 2007, Mr. Kelly admitted to 
conducting radiography by himself at the AIX Golovin site because he 
thought it was a permanent radiographic installation. If it were a 
permanent radiographic installation, conducting radiography with only 
one qualified individual would have been allowed under NRC regulations. 
However, the NRC inspector pointed out that the AIX Golovin site was 
not approved as a permanent radiographic installation and, therefore, 
two qualified individuals were required to be present during 
radiography. The NRC did not find that Mr. Kelly engaged in deliberate 
misconduct with regard to violating the two-person rule at the Golovin 
site. However, during that interview, he denied that there were times 
when he conducted radiography by himself in violation of the two-person 
rule at the ASRC site. Later, when asked if he always followed the two-
person rule at the ASRC site, he answered yes. When asked if he could 
remember any of the other AIX radiographers conducting radiographic 
operations with less than two people, he answered no.
    However, on January 10, 2008, after being confronted with 
information from other radiographers and radiographers' assistants that 
he had performed radiography by himself at times at the ASRC site, Mr. 
Kelly admitted to deliberately violating the two-person rule (10 CFR 
34.41(a)). Mr. Kelly stated that although he worked mainly at another 
client's facility, there were times when he worked at the ASRC site and 
some of those times he conducted radiographic operations in violation 
of the two-person rule. He stated that he, along with the former AIX 
radiation safety officer and another AIX radiographer took it upon 
themselves to decide it was acceptable to conduct radiography in 
violation of the two-person rule because of the facility that AIX had 
built at the ASRC site.\1\ He stated that when one person was 
``shooting'' (conducting radiography), the other person would just 
return to the AIX Golovin site to develop film. He stated, ``We knew we 
were breaking the rules.''
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    \1\ In 2001-2002, AIX had requested that the NRC approve the 
structure it had built at the ASRC site as a permanent radiographic 
installation. However, the structure required extensive 
modifications in order to meet NRC requirements. AIX did not make 
the modifications and, as a result, the NRC never approved it. If 
the structure had been approved, then AIX would have been authorized 
to conduct radiography with only one individual instead of two.
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    The NRC notes that Mr. Kelly was aware of previous NRC enforcement 
action taken against AIX,\2\ and was present at the March 2001 
predecisional enforcement conference with AIX when the NRC and AIX 
discussed whether another AIX employee engaged in deliberate misconduct 
for conducting radiography by himself at the ASRC site. This is the 
same violation at the same location that is being cited herein, and as 
part of AIX's corrective action, all AIX radiographers, including Mr. 
Kelly, signed a memorandum in February 2001 acknowledging that the two-
person rule for radiographers and radiographer assistants requires 
that, during exposures, two individuals must monitor the radiation 
area. This memorandum was attached to a letter dated March 12, 2001, in 
which AIX stated that all radiographers had been advised of the two-
person rule. This letter was discussed during the March 2001 
predecisional enforcement conference which Mr. Kelly attended.
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    \2\ On April 25, 2001, the NRC issued a Notice of Violation for 
a Severity Level III violation involving a failure to meet the 
requirements of 10 CFR 34.41(a) (EA-01-015).
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III

    The NRC must rely on Licensees and their employees to act with 
integrity in complying with NRC requirements, and communicating with 
candor. Mr. Kelly's actions raised serious doubt as to whether he can 
be relied upon to comply with NRC requirements and to provide complete 
and accurate information to the NRC.
    Consequently, I lack the requisite reasonable assurance that Mr. 
Kelly will perform licensed activities in compliance with the 
Commission's requirements and that the health and safety of the public 
will be protected if Mr. Kelly were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health and 
safety interest require that Mr. Kelly be prohibited from any 
involvement in NRC-licensed activities for a period of 1 year from the 
date of this Order. Additionally, Mr. Kelly is required to notify the 
NRC of his first employment in NRC-licensed activities for a period of 
1-year following the prohibition period. Furthermore, pursuant to 10 
CFR 2.202, I find that the significance of Mr. Kelly's conduct 
described above is such that the public health and safety 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 Parts 20, 34, and 
10 CFR 150.20, it is hereby ordered, effective immediately, that:
    1. Mr. Patrick A. Kelly is prohibited for 1-year 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, those activities of Agreement State licensees conducted 
pursuant to the authority granted by 10 CFR 150.20.
    2. If Mr. Kelly is currently involved with another licensee in NRC-
licensed activities, he must immediately cease those activities, and 
inform the NRC of the name, address and telephone number of the 
employer, and provide a copy of this order to the employer.
    3. For a period of 1 year after the 1-year period of prohibition 
has expired, Mr. Kelly shall, 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 20555-0001, 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 
notification, Mr. Kelly 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, OE, may, in writing, relax or rescind any of the 
above conditions upon demonstration by Mr. Kelly of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Patrick A. Kelly must, and any 
other person adversely affected by this Order may, submit an answer to 
this Order within 20 days of its issuance. In addition, Mr. Kelly and 
any other person 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 answer or 
request a hearing. A request for extension of time must be directed to

[[Page 50659]]

the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, and include a statement of good cause for the extension.
    A request for a hearing must be filed in accordance with the NRC E-
Filing rule, which the NRC promulgated in August 2007, 72 FR 49139 
(Aug. 28, 2007). 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 
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.
    If a person other than Mr. Kelly 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).
    If a hearing is requested by Mr. Kelly or a person whose interest 
is adversely affected, the Commission will issue an Order designating 
the time and place of any hearings. 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. Kelly, 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. 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 this 20th day of August, 2008.

    For the Nuclear Regulatory Commission.
Cynthia A. Carpenter,
Director, Office of Enforcement.
[FR Doc. E8-19833 Filed 8-26-08; 8:45 am]
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