David F. Johns, P.E., Dover, Delaware; Order Prohibiting Involvement in NRC-Licensed Activities (Effective Immediately)

[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Notices]
[Pages 28521-28523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13600]


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NUCLEAR REGULATORY COMMISSION

[IA 97-026]


David F. Johns, P.E., Dover, Delaware; Order Prohibiting 
Involvement in NRC-Licensed Activities (Effective Immediately)

I

    David F. Johns, P.E., is the Owner/President, and Radiation Safety 
Officer at Capital Engineering Services, Inc. (Licensee), an NRC 
licensee who is the holder of Byproduct Nuclear Material License No. 
07-30056-01 (License) issued by the Nuclear Regulatory Commission (NRC 
or Commission) pursuant to 10 CFR Part 30. The License authorizes 
possession and use of moisture/density gauges containing sealed 
sources. The License was originally issued on September 14, 1993, and 
is due to expire on September 30, 1998.
    On February 12, 1996, the License was suspended by an NRC Order for 
nonpayment of fees. However, on May 17, 1996, the NRC issued a 
Conditional Order Extending Time that granted the Licensee's request to 
pay the delinquent fees in twelve monthly installment payments and 
extended the effective date of the February 12, 1996 Order to March 15, 
1997. In addition, the Conditional Order stated that, in the event the 
Licensee fails to pay an installment during the 12-month period, each 
and every term and condition set forth in the February 12, 1996 Order 
will become immediately effective without further notice. The Licensee 
failed to make the first installment due June 15, 1996, after the 
Conditional Order was issued. Accordingly, on June 16, 1996, the terms 
of the February 12, 1996 ``Order Suspending License'' again became 
effective.

II

    On October 30, 1996, November 19, 1996, February 20, 1997, and 
March 5, 1997, the NRC conducted an inspection at the Licensee's 
facility in Dover, Delaware. During the inspection, the inspector 
determined that the Licensee had continued to use licensed radioactive 
material after issuance of the NRC Order Suspending the License on 
February 12, 1996. Specifically, the Licensee used licensed material on 
numerous occasions between February 12, 1996, and May 16, 1996, before 
the Conditional Order Extending Time was granted, a violation of 
Condition A of the February 12, 1996 Order and 10 CFR 30.3.
    Additionally, the Licensee continued to use the gauges on numerous 
occasions after June 16, 1996, the date on which the Order Suspending 
License once again became effective because of the licensee's failure 
to pay the first fee installment required by the May 17, 1996 Order 
Extending Time, a violation of Condition A of the February 12, 1996 
Order and 10 CFR 30.3.
    On October 2, 1996, the NRC issued to the Licensee a letter 
reiterating that, given the Licensee's failure to abide by the 
installment plan, the License had been suspended as specified in the 
February 12, 1996 Order Suspending License. During an NRC inspection on 
October 30, 1996, the Licensee informed the NRC inspector that it 
continued to use licensed material because it had not received the 
October 2, 1996 letter until October 28, 1996.
    As a result, the NRC issued a Confirmatory Action Letter (CAL) to 
the Licensee on November 1, 1996, which confirmed the Licensee's 
commitments to cease use and/or receipt of licensed material. The CAL 
references a telephone conversation between Mr. David Johns, the 
Licensee's President, and Mr. Frank Costello, NRC Region I, that took 
place on October 31, 1996, in which Mr. Johns agreed to the terms of 
the CAL.
    Concurrently with NRC inspection, the NRC Office of Investigations 
(OI) conducted an investigation of these matters. During the 
investigation, Mr. Johns stated that he did not recall receiving by 
mail, or being informed of, the February 12, 1996 Order. However, Mr. 
Johns recalled requesting from the NRC that an installment plan be 
established for payment of the delinquent inspection and annual fees.
    When questioned as to why the Licensee continued to use licensed 
material after Mr. Johns failed to make the installment due June 15, 
1996, Mr. Johns stated that he forgot about the language in the May 17, 
1996 Conditional Order (i.e., should the Licensee fail to pay an 
installment during the 12-month period, each and every term and 
condition set forth in the February 12, 1996 Order will become 
immediately effective without further notice).
    As to his agreement to the terms of the CAL, Mr. Johns stated that 
he recalled the October 31, 1996 telephone conversation, but he 
understood that once he fully paid the outstanding debt, he could use 
the gauges. Mr. Johns, however, did not pay the outstanding debt 
1 and, yet, allowed continued use of licensed material on 
numerous occasions from October 29 to, at least, November 19, 1996, a 
violation of Condition A of the February 12, 1996 Order and 10 CFR 
30.3. In addition, based on the OI investigation and inspection 
findings, the NRC determined that the Licensee failed to test sealed 
sources for leakage and/or contamination, a violation of License 
Condition 13.
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    \1\ By Check No. 2054 dated November 20, 1996, the Licensee paid 
$531.16. However, the check did not clear due to insufficient funds.
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    On April 10, 1997, an enforcement conference was scheduled with the 
Licensee. However, the Licensee failed to appear for the enforcement 
conference. In a subsequent telephone conversation between Mr. Johns 
and Mr. R. Blough, Director, Division of Nuclear Materials Safety, NRC 
Region I, Mr. Johns indicated that he was not planning to attend the 
conference. During that telephone conversation, Mr. Johns was also 
informed that the NRC would proceed with appropriate enforcement 
action.

III

    Based on the above, the NRC has concluded that Mr. Johns engaged in 
deliberate misconduct, a violation of 10 CFR 30.10(a)(1), by causing 
the Licensee to be in violation of Condition A of the February 12, 1996 
Order and 10 CFR 30.3. This conclusion is: (1) based on the Licensee's 
continued use of licensed material in violation of NRC

[[Page 28522]]

requirements despite Mr. Johns receiving numerous written 
communications that specifically informed him of the License 
suspension; and (2) supported by the fact that Mr. Johns requested from 
the NRC that an installment plan be established to remove the 
suspension of the License; Mr. Johns recalled the October 31, 1996 
telephone conversation in which he was specifically informed that the 
License was suspended and in which he agreed not to use licensed 
material; and Mr. Johns failed to ensure that the Licensee paid the 
outstanding debt before permitting resumption of licensed material use. 
In addition, as the Licensee's Radiation Safety Officer, Mr. Johns 
failed to ensure that the Licensee tested sealed sources for leakage 
and/or contamination, a violation of License Condition 13.
    Given Mr. Johns' deliberate misconduct, and Mr. Johns' failure to 
ensure that the Licensee complied with other NRC requirements, the NRC 
no longer has the necessary assurance that Mr. Johns, should he engage 
in NRC-licensed activities under any other NRC license, would perform 
NRC-licensed activities safely and in accordance with NRC requirements.
    Consequently, I lack the requisite reasonable assurance that NRC-
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. Johns were permitted at this time to be 
involved in NRC-licensed activities.
    Therefore, the public health, safety and interest require that Mr. 
Johns be prohibited from any involvement in NRC-licensed activities for 
a period of three years from the date of this Order, and if he is 
currently involved with another licensee in NRC-licensed activities, he 
must immediately cease such 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. Mr. Johns is also required, for a period of 
three years from the date of this Order, to provide a copy of this 
Order to any prospective employer who engages in NRC-licensed 
activities prior to his acceptance of employment involving non-NRC-
licensed activities with such prospective employer. Additionally, for a 
period of three years following the three-year prohibition, the first 
time Mr. Johns is employed in NRC-licensed activities, Mr. Johns is 
required to notify the NRC of his first employment in NRC-licensed 
activities. Furthermore, pursuant to 10 CFR 2.202, I find that the 
significance of Mr. Johns 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, and 161o of the 
Atomic Energy Act of 1954, as amended, and the Commission's regulations 
in 10 CFR 2.202 and 10 CFR 30.10, and 10 CFR 150.20, It is hereby 
ordered that, effective immediately:
    1. For a period of three years from the date of this Order, Mr. 
Johns is prohibited 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 in 
areas of NRC jurisdiction pursuant to the authority granted by 10 CFR 
150.20.
    2. For a period of three years from the date of this Order, Mr. 
Johns shall provide a copy of this Order to any prospective employer 
who engages in NRC-licensed activities (as described in Paragraph IV.1 
above) prior to his acceptance of employment involving non-NRC-licensed 
activities with such prospective employer. The purpose of this 
requirement is to ensure that the employer is aware of Mr. Johns' 
prohibition from engaging in NRC-licensed activities.
    3. For a period of three years following the three-year 
prohibition, the first time Mr. Johns is employed in NRC-licensed 
activities, Mr. Johns shall notify the Regional Administrator, NRC 
Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406-1415, 
prior to engaging in NRC-licensed activities, including activities 
under an Agreement State license when activities under that license are 
conducted in areas of NRC jurisdiction pursuant to 10 CFR 150.20. The 
notice shall include the name, address, and telephone number of the NRC 
or Agreement State licensee and the location where licensed activities 
will be performed.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by the Licensee 
of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Johns must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order and may request a hearing on this Order, within 20 days of the 
date of this Order. 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, D.C. 20555, 
and include a statement of good cause for the extension. The answer may 
consent to this Order. Unless the answer consents to this Order, the 
answer shall, in writing and under oath or affirmation, specifically 
admit or deny each allegation or charge made in this Order and shall 
set forth the matters of fact and law on which Mr. Johns or other 
person adversely affected relies and the reasons as to why the Order 
should not have been issued. Any answer or request for a hearing shall 
be submitted to the Secretary, U.S. Nuclear Regulatory Commission, 
Attn: Rulemaking 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 Hearings and Enforcement at the same address, to the 
Regional Administrator, NRC Region I, 475 Allendale Road, King of 
Prussia, Pennsylvania 19406-1415, to Mr. Johns if the answer or hearing 
request is by a person other than Mr. Johns. If a person other than Mr. 
Johns 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 2.714(d).
    If a hearing is requested by Mr. Johns or 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 Order should be 
sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Johns 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

[[Page 28523]]

HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.

    Dated at Rockville, Maryland this 15th day of May 1997.

    For the Nuclear Regulatory Commission.
Edward L. Jordan,
Deputy Executive Director for Regulatory Effectiveness, Program 
Oversight, Investigations and Enforcement.
[FR Doc. 97-13600 Filed 5-22-97; 8:45 am]
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