[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Notices]
[Pages 3010-3013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1060]
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NUCLEAR REGULATORY COMMISSION
[NRC-2012-0005; IA-11-032]
In the Matter of Mr. Francis Guilbeau; Order Prohibiting
Involvement in NRC-Licensed Activities
I
Mr. Francis Guilbeau was employed as a Radiographer at Accurate NDE
& Inspection, LLC, (Accurate NDE or Licensee) located in Broussard,
Louisiana, in March 2010. Accurate NDE is the holder of a general
license issued by the U.S. Nuclear Regulatory Commission (NRC or the
Commission) pursuant to Title 10 of the Code of Federal Regulations (10
CFR) 150.20. This general license was granted to Accurate NDE at
various times during calendar years between 2005 through 2011.
II
On May 26, 2010, the NRC conducted a special inspection of licensed
activities involving the use of byproduct material for industrial
radiography conducted under a general license pursuant to the
provisions of 10 CFR 150.20. The inspection was conducted in response
to an event that occurred on March 15, 2010, involving the loss of a
sealed source of iridium-192 while performing licensed activities in
offshore Federal waters. On June 28, 2010, the NRC's Office of
Investigations, Region IV, began an investigation (Case No. 4-2010-062)
to determine, in part, whether Mr. Guilbeau: (1) Willfully failed to
follow operating procedures by attempting to retrieve a disconnected
source without making the proper notifications and obtaining
authorization from the Accurate NDE radiation safety officer (RSO); and
(2) willfully recorded an inaccurate number for a pocket dosimeter
reading on the Accurate NDE Daily Radiation Report dated March 14,
2010. By letter dated July 28, 2011 (ML11209B637), the NRC informed Mr.
Guilbeau that the NRC was considering escalated enforcement action for
two apparent violations of NRC's deliberate misconduct rule, 10 CFR
30.10. The NRC offered Mr. Guilbeau the opportunity to request a
predecisional enforcement conference or request alternative dispute
resolution (ADR) with the NRC in an attempt to resolve issues
associated with this matter. In response, Mr. Guilbeau requested a
predecisional enforcement conference. A predecisional enforcement
conference was held with Mr. Guilbeau on August 25, 2011, in an
[[Page 3011]]
effort to obtain Mr. Guilbeau's point of view on the violations.
Based on the NRC review of the information obtained during the
predecisional enforcement conference, the inspection and the
investigation, two violations of the NRC's rule prohibiting deliberate
misconduct, 10 CFR 30.10, were identified. First, Mr. Guilbeau engaged
in deliberate misconduct in violation of 10 CFR 30.10(a)(1) by causing
Accurate NDE to be in violation of 10 CFR 150.20(b)(5), which requires
Accurate NDE to comply with the terms of its State license. Paragraph
21A of the Louisiana State license required Accurate NDE to follow its
operating procedures. Accurate NDE's operating procedures prohibit a
radiographer from retrieving a disconnected source unless he contacts
the radiation safety officer (RSO) first and obtains authorization. Mr.
Guilbeau did not contact the RSO or obtain authorization from the RSO
prior to attempting retrieval of the source. Therefore, Mr. Guilbeau's
actions caused Accurate NDE to be in violation of its Louisiana State
license, and 10 CFR 150.20. During an interview with the Office of
Investigations, Mr. Guilbeau admitted that he tried to retrieve the
source without first contacting the RSO. Mr. Guilbeau also stated in
this interview that he knew radiographers were not supposed to retrieve
a source. In a written test on Accurate NDE's procedures taken on March
10, 2010, four days prior to going out on this job, Mr. Guilbeau chose
the correct response to a question asking what to do in the event of a
source disconnect--a further indication that he knew it was necessary
to contact the RSO and that he was not supposed to attempt to put the
source back in the camera.
This incident occurred on Mr. Guilbeau's first job back with
Accurate NDE after several years working elsewhere. During his previous
tenure with Accurate NDE in 2004-2006, Mr. Guilbeau was involved in a
similar incident and in that case, he immediately called the office. At
the predecisional enforcement conference held on August 25, 2011, Mr.
Guilbeau stated repeatedly that his primary aim was to get the ``pill''
hooked back up so he could start X-raying again. He also indicated that
he should have contacted the office first, but it was his first job
back with Accurate NDE, and he just wanted to get the work done without
any complications.
Because Mr. Guilbeau knew that he was supposed to contact the RSO
before attempting to retrieve a source but did not do so, and because
his actions caused the license to be in violation of 10 CFR
150.20(b)(5), Mr. Guilbeau's actions constitute deliberate misconduct
pursuant to 10 CFR 30.10(a)(1). During the attempted source retrieval,
the licensee's conclusion was that the source fell through the grating
on the deck of the platform into the Gulf of Mexico. Therefore, as a
result of Mr. Guilbeau's actions, the source was lost.
Second, Mr. Guilbeau engaged in deliberate misconduct in violation
of 10 CFR 30.10(a)(2) by deliberately submitting to Accurate NDE, an
NRC general licensee, information that he knew was inaccurate in some
material respect. Specifically, Mr. Guilbeau recorded a number for a
pocket dosimeter reading associated with work performed by another
radiographer on March 14, 2010, on the Daily Radiation Report, that Mr.
Guilbeau knew was inaccurate. During an interview by the Office of
Investigations, Mr. Guilbeau admitted he did not know what the other
radiographer's true radiographic dose exposure was for March 14, 2010,
and estimated a number on the licensee's Daily Radiation Report for
that shift. During the predecisional enforcement conference, Mr.
Guilbeau stated that he could not remember receiving the other
radiographer's radiographic dose exposure that would have been recorded
at the end of the shift. This would indicate that Mr. Guilbeau did not
enter the correct dose exposure reading for the other radiographer on
the Daily Radiation Report. As a result, Mr. Guilbeau deliberately
submitted information to Accurate NDE, an NRC general licensee,
information that he knew to be inaccurate in some respect material to
the NRC. This was a violation of 10 CFR 30.10(a)(2). In addition,
because the Daily Radiation Report is a record that Accurate NDE is
required to keep pursuant to 10 CFR 34.83 and 34.47(b), Mr. Guilbeau's
actions caused Accurate NDE to be in violation of 10 CFR 30.9(a), which
requires that information required by regulation to be maintained by a
licensee must be accurate in all material respects.
III
Based on the above, the NRC has concluded that Mr. Francis
Guilbeau, a former employee of Accurate NDE, violated 10 CFR
30.10(a)(1) by engaging in deliberate misconduct that caused Accurate
NDE to be in violation of 10 CFR 150.20(b)(5) and 30.9. Further, Mr.
Guilbeau deliberately provided to Accurate NDE information that he knew
to be incomplete or inaccurate in some respect material to the NRC, in
violation of 10 CFR 30.10(a)(2).
The NRC must be able to rely on the Licensee and its employees to
comply with NRC requirements, including the requirement that general
licensees operating under the reciprocity provisions of 10 CFR 150.20
comply with the terms and conditions of their Agreement State licenses
and the requirement to provide information and maintain records that
are complete and accurate in all material respects. Mr. Guilbeau's
actions caused the Licensee to violate 10 CFR 150.20(b)(5) and 10 CFR
30.9 and have 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
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. Guilbeau were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Mr. Guilbeau be prohibited from any
involvement in NRC-licensed activities for a period of 1 year from the
effective date of this Order, as defined in Section V. Additionally Mr.
Guilbeau is required to notify the NRC of his first employment in NRC-
licensed activities for a period of 1 year following the prohibition
period.
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, 10 CFR parts 20, 34, and 10
CFR 150.20, It is hereby ordered that:
1. Mr. Francis Guilbeau is prohibited for 1 year from the effective
date of this Order, as defined in Section V, 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.
Specifically, Mr. Guilbeau is prohibited from performing, supervising,
assisting or otherwise engaging in (1) Industrial radiography for an
Agreement State licensee that is conducted in non-Agreement States, in
areas of exclusive federal jurisdiction within Agreement States, or in
offshore waters under an NRC general license granted pursuant to 10 CFR
150.20, (2) industrial radiography for an NRC licensee, including, but
not limited to,
[[Page 3012]]
radiography conducted under the authority of a license issued pursuant
to 10 CFR Part 34, and (3) any other licensed activity under NRC
jurisdiction.
2. As of the effective date of this Order, if Mr. Guilbeau 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, 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. Guilbeau 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. Guilbeau shall include a statement of his commitment
to compliance with NRC regulatory requirements and the basis for 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 the above conditions upon demonstration by Mr. Guilbeau
of good cause.
V
In accordance with 10 CFR 2.202, Mr. Francis Guilbeau must, and any
other person adversely affected by this Order may, submit an answer to
this Order within 30 days of its issuance date. In addition, Mr.
Guilbeau and any other person adversely affected by this Order may
request a hearing on this Order within 30 days of its issuance date.
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 the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, and include a statement of good cause for the
extension.
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139,
August 28, 2007). The E-Filing process requires participants to submit
and serve all adjudicatory documents over the Internet, or in some
cases to mail copies on electronic storage media. Participants may not
submit paper copies of their filings unless they seek an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10
days prior to the filing deadline, the participant should contact the
Office of the Secretary by email at [email protected], or by
telephone at (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
proceeding in which it is participating; and (2) advise the Secretary
that the participant will be submitting a request or petition for
hearing (even in instances in which the participant, or its counsel or
representative, already holds an NRC-issued digital ID certificate).
Based upon this information, the Secretary will establish an electronic
docket for the hearing in this proceeding if the Secretary has not
already established an electronic docket.
Information about applying for a digital ID certificate is
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in NRC's ``Guidance for Electronic
Submission,'' which is available on the agency's public Web site at
http://www.nrc.gov/site-help/e-submittals.html. Participants may
attempt to use other software not listed on the Web site, but should
note that the NRC's E-Filing system does not support unlisted software,
and the NRC Meta System Help Desk will not be able to offer assistance
in using unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's online, web-based submission form. In order to
serve documents through NRC's Electronic Information Exchange (EIE),
users will be required to install a web browser plug-in from the NRC
Web site. Further information on the web-based submission form,
including the installation of the web browser plug-in, is available on
the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. 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
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing 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 email notice confirming receipt of the document. The
E-Filing system also distributes an email notice that provides access
to the document to the NRC's 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
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link located on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html, by email at
[email protected], or by a toll-free call at (866) 672-7640. The
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m.,
Eastern time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, 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
[[Page 3013]]
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. A presiding officer, having
granted an exemption request from using E-Filing, may require a
participant or party to use E-Filing if the presiding officer
subsequently determines that the reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket, which is available to the public at
http://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the
Commission, or the 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, unless an NRC
regulation or other law requires submission of such information. 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 submission.
If a person other than Mr. Francis Guilbeau 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. Guilbeau or any other 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. In the absence of any
request for hearing or ADR, or written approval of an extension of time
in which to request a hearing, the effective date of this Order (the
date that the provisions specified in Section IV above become final and
effective) shall be 30 days from the issuance date of this Order
without further order or proceedings. If an extension of time for
requesting a hearing has been approved, the effective date of this
Order shall be when the extension expires if a hearing request has not
been received. If a hearing or ADR is requested, the effective date of
this Order shall be determined in accordance with the hearing or ADR
process.
Dated this 5th day of January 2012.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2012-1060 Filed 1-19-12; 8:45 am]
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