William H. Clark; Order Prohibiting Involvement in NRC-Licensed Activities

[Federal Register Volume 63, Number 251 (Thursday, December 31, 1998)]
[Notices]
[Pages 72334-72336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34578]


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NUCLEAR REGULATORY COMMISSION

[IA 98-045]


William H. Clark; Order Prohibiting Involvement in NRC-Licensed 
Activities

I

    William H. Clark was formerly employed by the Power Authority of 
the State of New York (New York Power Authority) as a contract employee 
who had been granted unescorted access to the Indian Point Unit 3 
Nuclear Power Plant (Indian Point 3 Plant). The New York Power 
Authority is the holder of Facility Operating License No. DPR-64, 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR Part 50 on April 5, 1976. The license authorizes the 
operation of the Indian Point 3 Plant in accordance with conditions 
specified therein. The facility is located in Buchanan, New York.
    Mr. Clark was also formerly employed by the Centerior Service 
Corporation (Centerior) as a contract employee who had been granted 
unescorted access to the Perry Nuclear Power Plant (Perry Plant). 
Centerior is the holder of Facility Operating License No. NPF-58, 
issued by the NRC pursuant to 10 CFR Part 50 on November 18, 1987. The 
license authorizes the operation of the Perry Plant in accordance with 
conditions specified therein. The facility is located in Perry, Ohio.

II

    On October 30 and 31, 1997, the NRC received information from 
Centerior and the New York Power Authority, in accordance with 10 CFR 
73.71(b)(1), that Mr. Clark had been granted unescorted access to the 
Perry Plant during the period September 11 through September 25, 1997, 
and the Indian Point 3 Plant during the period May 13 through August 
14, 1997, and that Mr. Clark was previously denied unescorted access to 
the Philadelphia Electric Company's (PECo) Peach Bottom Nuclear Plant 
(Peach Bottom Plant) based on a positive test for illegal drug use 
(marijuana). On October 30, 1997, the New York Power Authority 
submitted Licensee Event Report (LER) No. 97-026-00 to the NRC which 
concluded that Mr. Clark had been granted unescorted access to the 
Indian Point 3 Plant based, in part, on false information that Mr. 
Clark provided to the New York Power Authority during pre-access 
screening regarding: (1) a prior positive test for illegal drug use 
(marijuana), which was administered to him by PECo on September 4, 
1996; and (2) a prior denial of unescorted access to PECo's Peach 
Bottom Plant based on a positive test for illegal drug use. Centerior 
submitted a similar LER (No. 97-S01-000) to the NRC on October 31, 
1997. Both Centerior and the New York Power Authority informed the NRC 
that had the information regarding Mr. Clark's previous positive test 
for illegal drug use and his denial of unescorted access to the Peach 
Bottom Plant been known, Mr. Clark would not have been granted 
unescorted access to their nuclear facilities.
    In response to the information reported by Centerior and the New 
York Power Authority to the NRC, the NRC initiated an investigation of 
facts and circumstances surrounding the allegedly false information 
that Mr. Clark

[[Page 72335]]

provided to Centerior and the New York Power Authority in order to gain 
unescorted access to the Perry Plant and the Indian Point 3 Plant. The 
investigation established:
    1. On September 4, 1996, Mr. Clark submitted to pre-access drug and 
alcohol testing in order to gain unescorted access to PECo's Peach 
Bottom Plant and the immunoassay screen performed by PECo at its on-
site lab identified the presence of cannabinoids (marijuana).
    2. The specimen Mr. Clark submitted to PECo on September 4, 1996, 
was tested by the company DrugScan on September 5, 1996, and DrugScan 
reported to PECo that the specimen tested positive for marijuana 
metabolites.
    3. On September 19, 1996, PECo sent Mr. Clark a certified letter 
which stated that PECo had received the results of his pre-access drug 
test and that if he did not contact the medical review officer within 
five days of receiving the letter, his pre-access drug test would be 
declared positive. On October 1, 1996, the medical review officer 
declared Mr. Clark's pre-access drug test positive based upon a 
positive drug test report and no response from Mr. Clark. The unopened, 
unclaimed certified letter was returned to PECo by the post office on 
November 4, 1996.
    4. By letter dated October 25, 1996, PECo informed Mr. Clark that 
he was being denied unescorted access to PECo's Peach Bottom Plant for 
failing to meet PECo's fitness for duty requirements. The letter was 
mailed to Mr. Clark on October 28, 1996, by certified mail, return 
receipt requested, and Mr. Clark signed the certified mail receipt on 
or about November 13, 1996, thereby acknowledging his receipt of the 
letter.
    5. On April 28, 1997, Mr. Clark applied for unescorted access to 
the Indian Point 3 Plant and answered ``No'' to two questions in order 
to gain unescorted access to the Indian Point 3 Plant: (a) whether he 
had ever been denied unescorted access to a nuclear power plant or 
employment due to a fitness for duty policy, and (b) whether he had 
ever been denied unescorted access to a nuclear power plant for any 
reason.
    6. Based, in part, on Mr. Clark's answer of ``No'' to the two 
questions listed above in item five, Mr. Clark was granted unescorted 
access to the Indian Point 3 Plant from May 13 to August 14, 1997.
    7. On September 10, 1997, Mr. Clark applied for unescorted access 
to the Perry Plant and answered ``No'' to two questions in order to 
gain unescorted access to the Perry Plant: (a) whether he had at any 
time in the past five years tested positive for illegal drug use, and 
(b) whether he had at any time in the past five years been removed from 
activities or denied unescorted access at any nuclear power plant, or 
other employment as a result of a fitness for duty policy.
    8. Based, in part, on Mr. Clark's answer of ``No'' to the two 
questions listed above in item seven, Mr. Clark was granted unescorted 
access to the Perry Plant from September 11 to September 25, 1997.
    9. On August 26, 1998, a Demand for Information (DFI) was sent to 
Mr. Clark. The DFI requested Mr. Clark to respond to a series of 
questions about his applications for unescorted access to the Indian 
Point 3 and Perry plants. Because Mr. Clark had not responded to the 
first DFI, a second copy of the DFI was sent to Mr. Clark on or about 
the fourth week in September 1998. As of the date of this Order, Mr. 
Clark has not responded with the information requested by the DFI, and 
the post office has not returned the two copies of the DFI that were 
mailed to Mr. Clark.
    10. On October 11 and October 22, 1998, telephone calls were placed 
to Mr. Clark's residence and messages were left on an answering machine 
asking Mr. Clark to contact the NRC Region III Office to discuss the 
DFI. As of the date of this Order, Mr. Clark has not contacted the NRC 
Region III Office in response to the telephone calls.
    Based on the above, it appears that Mr. Clark, a former contract 
employee of both New York Power Authority and Centerior, has engaged in 
deliberate misconduct by providing false information to both NRC 
licensees, and it raises serious doubt as to whether Mr. Clark can be 
relied upon to comply with NRC requirements and to provide complete and 
accurate information to NRC licensees.

III

    The NRC must be able to rely on a facility licensee and its 
employees to comply with the provisions of all NRC regulations. Based 
on its investigation, the NRC has concluded that Mr. Clark violated the 
NRC's regulations prohibiting deliberate misconduct at nuclear power 
facilities. Specifically, 10 CFR 50.5(a)(2), ``Deliberate Misconduct,'' 
prohibits any employee of an NRC licensee, or any employee of a 
contractor or subcontractor of an NRC licensee, from deliberately 
submitting information to an NRC licensee that the person submitting 
the information knows to be incomplete or inaccurate in some respect 
material to the NRC. The false answers and the information that Mr. 
Clark failed to provide about his prior use of marijuana and his failed 
FFD test at, and his revoked unescorted access to, the Peach Bottom 
plant are material to the NRC because licensees are required to 
consider such information in making determinations for unescorted 
access in accordance with the requirements of 10 CFR 73.56. Therefore, 
the NRC has concluded that Mr. Clark's actions were a deliberate 
violation.
    Mr. Clark's deliberate actions have raised serious doubt as to 
whether he can be relied upon to comply with NRC requirements and to 
refrain from deliberately violating those regulations. 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. Clark were 
permitted at this time to be involved in NRC-licensed activities. 
Therefore, the public health, safety, and interest require that Mr. 
Clark be prohibited from any involvement in NRC-licensed activities for 
a period of one year from the effective date of this Order, and if he 
is currently involved with another licensee in NRC-licensed activities 
at this time, 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. Additionally, for a 
period of one year following the one-year probation period, Mr. Clark 
is required to notify the NRC of any employment in NRC-licensed 
activities.

IV

    Accordingly, pursuant to sections 103, 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 50.5, 10 CFR 73.56, and 10 CFR 
150.20, it is hereby ordered that:
    1. William H. Clark is prohibited for one year from the effective 
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. For a period of one year after the period of prohibition has 
expired, William H. Clark shall, within 20 days of his acceptance of 
any employment offer involving NRC-licensed activities or his becoming 
involved in NRC-licensed activities, as defined in

[[Page 72336]]

Paragraph IV.1 above, provide notice to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 
20555, 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 initial notification, Mr. Clark shall include a 
statement of his commitment to comply with regulatory requirements and 
the basis 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. Clark of 
good cause.

V

    In accordance with 10 CFR 2.202, William H. Clark 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. Clark 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: Assistant for Rulemakings and Adjudications, 
Washington, DC 20555. Copies also shall be sent to the Director, Office 
of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 
20555, to the Deputy Assistant General Counsel for Enforcement at the 
same address, to the Regional Administrator, NRC Region I, 475 
Allendale Road, King of Prussia, PA 19406-1415, to the Regional 
Administrator, NRC Region III, 801 Warrenville Road, Lisle, IL 60532-
4351, and to Mr. Clark, if the answer or hearing request is by a person 
other than Mr. Clark. If a person other than Mr. Clark 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 2.714(d).
    If a hearing is requested by Mr. Clark 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.
    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.

    Dated at Rockville, Maryland this 21st day of December 1998.

    For the Nuclear Regulatory Commission.
Malcolm R. Knapp,
Deputy Executive Director for Regulatory Effectiveness.
[FR Doc. 98-34578 Filed 12-30-98; 8:45 am]
BILLING CODE 7590-01-P