[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Notices]
[Pages 666-669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31545]
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NUCLEAR REGULATORY COMMISSION
[NRC-2013-0282; IA-13-038]
In the Matter of Joseph S. Shepherd; Order Conditioning
Involvement in NRC-Licensed Activities
I
Joseph S. Shepherd is the President and Owner of Foss Therapy
Services, Incorporated (FTS) in North Hollywood, California. FTS does
not possess a license issued by the Nuclear Regulatory Commission
pursuant to 10 CFR Part 30. However, FTS is the holder of a State of
California materials license, which authorizes the use of radioactive
material for the maintenance, repair, and installation of self-shielded
irradiators. The holder of a State license may perform work authorized
by the license in other state or federal jurisdictions provided the
State licensee files for reciprocity with the appropriate regulatory
authority.
On September 8, 2008, the NRC issued Mr. Shepherd an Order, ``Order
Prohibiting Involvement in 10 CFR Part 71 Activities and Conditioning
Other NRC Licensed Activities'' (IA-08-014). The NRC issued the Order
to Mr. Shepherd after he committed multiple violations of 10 CFR
110.7b, ``Deliberate Misconduct.'' These violations arose out of Mr.
Shepherd's employment by Source Production and Equipment Company, Inc.
(SPEC), of St. Rose, Louisiana. SPEC, an NRC licensee, hired Mr.
Shepherd to perform certain maintenance inspections required by the NRC
Certificate of Compliance for Model No. 5979 shipping casks prior to
shipping NRC-licensed radioactive material to Mexico. The NRC
determined through inspection and an investigation that, on three
separate occasions, Mr. Shepherd deliberately provided materially
inaccurate information to SPEC concerning the inspection of Model No.
5979 packages. Mr. Shepherd provided the inaccurate information in
various documents, such as checklists and bills of lading. By
deliberately providing materially inaccurate information, Mr. Shepherd
caused SPEC to violate 10 CFR 71.3, ``Requirement for License'' and 10
CFR 71.17m ``General License; NRC-approved package.'' For that reason,
Mr. Shepherd's actions violated 10 CFR 110.7b, ``Deliberate
Misconduct.''
The September 8, 2008, NRC Order, in part, prohibited Mr. Shepherd
indefinitely from packaging any Type B shipments and from preparing any
paperwork for a Type B shipment in any area of NRC jurisdiction. The
Order required Mr. Shepherd to notify the NRC in writing at least 5
business days before conducting licensed activities in NRC
jurisdiction, a condition designed to facilitate NRC inspection of Mr.
Shepherd's activities. The Order also required that, prior to
conducting licensed activities in NRC jurisdiction, Mr. Shepherd notify
the customer, that the NRC had issued the Order to him and make the
Order available to the customer. These notifications were
[[Page 667]]
required for a period of 5 years from the date of the September 8,
2008, Order; that is, until September 8, 2013.
II
In early 2012, the Uniformed Services University of the Health
Sciences (USU) in Bethesda, Maryland hired FTS to remove a Mark I Model
68A irradiator from a facility in North Carolina and install the
irradiator at USU. Although USU is affiliated with the United States
military services, it is under NRC jurisdiction. FTS's contract with
USU originally involved a joint venture with another company, but FTS
became the sole contractor after the other company was unable to
fulfill the contract. On April 4, 2012, FTS submitted to the NRC's
Region IV an NRC Form 241, ``Report of Proposed Activities in Non-
Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore
Waters.'' With this form, FTS provided notification of their intent to
conduct work at USU under reciprocity; that is, under FTS's California
license.
On April 13, 2012, the NRC inspected FTS's work on the self-
shielded irradiator at USU. After observing the activities of the day
and watching FTS finish loading radioactive sources into USU's
irradiator, an NRC inspector interviewed Mr. Shepherd regarding the
notification provisions of the 2008 Order issued to him. Mr. Shepherd
acknowledged that he had not notified USU of the Order and that he had
not made the Order available to USU.
On April 25, 2012, the NRC Office of Investigations (OI) initiated
an investigation to determine if Mr. Shepherd willfully failed to
adhere to the conditions of his Order when he worked at USU without
notifying the USU of the Order issued to him and without making the
Order available to USU. Based on OI's investigation, the NRC finds that
Mr. Shepherd willfully violated the Order, in careless disregard of its
requirements. Specifically, the NRC finds that Mr. Shepherd willfully
failed to notify USU of the Order issued to him and willfully failed to
make the Order available to USU prior to performing work at the
facility. Although Mr. Shepherd has stated that he believed the Order's
notification requirements did not apply to his work at USU because USU
was under military jurisdiction, rather than NRC jurisdiction, Mr.
Shepherd knew that belief may have been incorrect, yet failed to verify
USU's jurisdictional status. For example, Mr. Shepherd acknowledged
that prior to working at USU he reviewed USU's NRC license, a document
that states ``U.S. Nuclear Regulatory Commission Materials License'' at
the top of the first page. Mr. Shepherd also submitted a Form 241 to
the NRC, an action that would not have been required had USU not been
under NRC jurisdiction.
In a letter dated August 15, 2013, the NRC informed Mr. Shepherd
that the NRC was considering escalated enforcement action against him
for an apparent violation of the NRC Order issued to him on September
8, 2008. In the letter, the NRC offered Mr. Shepherd the opportunity to
attend a Predecisional Enforcement Conference (PEC) or request
Alternative Dispute Resolution (ADR). At Mr. Shepherd's request, a PEC
was conducted on September 25, 2013.
During the PEC, Mr. Shepherd acknowledged the apparent violation
and the failure to provide notification to USU prior to performing work
as required by the Order, indicating that he made a mistake. Mr.
Shepherd also acknowledged that he would not have otherwise notified
USU if he had not discussed the required notification with the NRC
inspector during the inspection because he thought USU was under
military jurisdiction and not NRC jurisdiction.
Based on the results of the inspection, the OI investigation, and
the information provided during the PEC, the NRC finds that Mr.
Shepherd willfully, in careless disregard, violated the conditions of
the 2008 NRC Order against him because, prior to conducting work at the
facility, Mr. Shepherd failed to notify USU of the Order issued to him
and failed to make the Order available to USU. In sum, the NRC finds
that Mr. Shepherd's actions constitute a violation of NRC requirements.
III
The NRC must be able to rely on licensees, their contractors, and
their employees to comply with NRC requirements. Mr. Shepherd is
currently prohibited from involvement in 10 CFR Part 71 activities, as
set forth in the Order issued to him on September 8, 2008. This
requirement of the Order remains in effect. The 2008 Order also
required Mr. Shepherd to notify the NRC in writing at least 5 business
days before working in NRC jurisdiction, in order to facilitate NRC
inspections of his activities. In addition, the 2008 Order required
that, before performing work, Mr. Shepherd notify customers that the
NRC had issued an Order to him and make the Order available to
customers.
Based on Mr. Shepherd's violation of the September 8, 2008, NRC
Order, I lack reasonable assurance that Mr. Shepherd can be relied
upon, at this time, to comply with NRC requirements. Based on the
current violation, and because the notification requirements from the
prior Order expired on September 8, 2013, the public health, safety,
and interest require that the NRC issue Mr. Shepherd this Order. This
Order requires that, before working in NRC jurisdiction, Mr. Shepherd
(1) notify the NRC of his planned work and confirm that he has verified
the jurisdictional status of his customer; and (2) notify the customer
that the NRC has issued the September 8, 2008, NRC Order, and this
Order to him and make the Orders available to the customer. These
requirements will remain in effect for 3 years from the effective date
of this Order. This Order also requires that Mr. Shepherd must
determine whether the customer is under NRC jurisdiction, document his
determination and state the basis for his determination. This
requirement will remain in effect for 3 years from the effective date
of this Order. The documentation of this requirement shall be
maintained for a period of 4 years from the effective date of the
Order.
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 Part 71, 10 CFR 110.7b, and 10 CFR
150.20, it is hereby ordered that, from the effective date of this
order:
1. For a period of 3 years, Mr. Shepherd shall notify the NRC in
writing at least 5 business days before conducting licensed activities
in NRC jurisdiction. Mr. Shepherd may provide this notification
electronically either by email to: [email protected], or
by faxing this notification to (817) 200-1188. Mr. Shepherd may also
provide this notification by mail to Regional Administrator, U.S.
Nuclear Regulatory Commission, ATTN: Division of Nuclear Material
Safety, 1600 East Lamar Blvd., Arlington, TX 76011. If this
notification is provided by mail, Mr. Shepherd must ensure this
notification is received by the NRC at least 5 business days before
conducting licensed activities. The notification shall provide the
name, location, and phone number of the customer; and it shall describe
the type of work to be performed.
2. For a period of 3 years, Mr. Shepherd shall take the following
actions before working for any customer, or for any contractor of a
customer, who manufactures, produces, transfers, receives, acquires,
owns, possesses, or uses byproduct material. Mr. Shepherd shall: (a)
Determine
[[Page 668]]
whether the customer or its job site is under NRC jurisdiction, (b)
document his determination in writing, and (c) state in writing the
basis for his determination. Mr. Shepherd shall maintain this
documentation for a period of 4 years from the effective date of this
Order, and he shall make the documentation available for NRC
inspection.
3. For a period of 3 years, before conducting licensed activities
in NRC jurisdiction, Mr. Shepherd shall notify each customer in writing
that the NRC has issued the September 8, 2008, Order and this Order to
him, and he shall make the Orders available to the customer. Mr.
Shepherd shall maintain copies of these notifications for 4 years from
the effective date of this Order, and he shall make the copies
available for NRC inspection.
4. Mr. Shepherd is currently employed by Foss Therapy Services.
Should Mr. Shepherd seek other employment involving NRC-regulated
activities within 3 years from the effective date of this Order, before
accepting employment he shall provide the employer a copy of both this
Order and the September 8, 2008 Order.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Joseph S.
Shepherd of good cause.
Issuance of this Order does not alter the provisions in the
September 8, 2008, Order issued to Mr. Shepherd, including the
provision indefinitely prohibiting Mr. Shepherd's involvement with
shipments of Type B quantities of NRC-licensed material.
V
In accordance with 2.202, Joseph S. Shepherd must submit a written
answer to this Order under oath or affirmation within 20 days of its
issuance. The response shall admit or deny the charge made in the
Order. Joseph S. Shepherd's failure to respond to this Order could
result in additional enforcement action in accordance with the
Commission's Enforcement Policy. Any person adversely affected by this
Order may submit a written answer to this Order within 20 days of its
issuance. In addition, Joseph S. Shepherd and any other person
adversely affected by this Order may request a hearing on this Order
within 30 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 made in writing to
the Director, Office of Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, and include a statement of good
cause for the extension.
The response to this Order and the Notice shall be submitted to the
Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and
Adjudications Staff, Washington, DC 20555-0001. Copies shall also be
sent to: 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; Regional
Administrator, U.S. Nuclear Regulatory Commission, ATTN: Regional
Administrator, Region I, 2100 Renaissance Blvd., King of Prussia, PA
19406. This response should be clearly marked as a ``Reply to a Notice
of Violation and Order; IA-13-038.''
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
ten 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
identification (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 the 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 the 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 the Electronic Information Exchange System,
users will be required to install a Web browser plug-in from the NRC's
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's 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 NRC's adjudicatory E-
Filing system
[[Page 669]]
may seek assistance by contacting the NRC Meta System Help Desk through
the ``Contact Us'' link located on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to
[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
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 the
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.
However, a request to intervene will require including information on
local residence in order to demonstrate a proximity assertion of
interest in the proceeding. 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 Joseph S. Shepherd 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 Joseph S. Shepherd 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. 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 30 days
from the date this Order is issued 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 at Rockville, Maryland, this 20 day of December 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013-31545 Filed 1-3-14; 8:45 am]
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