In the Matter of Mr. Kenneth J. Vandiver; Order Prohibiting Involvement in NRC-Licensed Activities (Effective Immediately), 50655-50657 [E8-19832]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 167 (Wednesday, August 27, 2008)]
[Notices]
[Pages 50655-50657]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19832]


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NUCLEAR REGULATORY COMMISSION

[IA-08-006]


In the Matter of Mr. Kenneth J. Vandiver; Order Prohibiting 
Involvement in NRC-Licensed Activities (Effective Immediately)

I

    Mr. Kenneth J. Vandiver is employed as a radiographer at Alaska 
Industrial X-Ray, Inc. (AIX) located in Anchorage, Alaska, and until 
November 2007, Mr. Vandiver was the radiation safety officer (RSO) for 
AIX. 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. Vandiver, as 
RSO, 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. Vandiver, 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. Vandiver 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) when he conducted radiography alone at the ASRC facility on 
numerous occasions since about 2004. Second, he provided information 
that he knew was

[[Page 50656]]

incomplete and inaccurate during his sworn statement to NRC 
investigators, in violation of 10 CFR 30.10(a)(2), on July 24, 2007, 
when Mr. Vandiver stated that he always abided by the two-person rule 
(10 CFR 34.41(a)), and that there had never been an occasion in which 
he conducted radiographic operations by himself. He also stated that to 
the best of his knowledge, as RSO, that AIX personnel were following 
the two-person rule. However, later on July 25, 2007, after the NRC had 
been informed by other radiographers and radiographer's assistants that 
he had performed radiography by himself at times at the ASRC site, Mr. 
Vandiver admitted to violating the two-person rule. Mr. Vandiver also 
admitted to having left a radiographer alone at the ASRC site on 
occasions to conduct radiography while he returned to the Golovin site 
to develop film. During a third interview conducted on January 10, 
2008, Mr. Vandiver provided substantially the same information about 
his actions and the actions of other AIX radiographers in violation of 
the two-person rule.
    Despite Mr. Vandiver's limited recollection during the PEC held 
June 5, 2008, we note Mr. Vandiver was aware of previous NRC 
enforcement action taken against AIX for the same violation at the same 
location.\1\ In fact, Mr. Vandiver was a primary spokesperson for the 
company's position during the 2001 PEC with the NRC, and signed a 
memorandum in response to this violation indicating acknowledgement of 
the need to comply with the two-person rule.
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    \1\ 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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    The NRC has also concluded that Mr. Vandiver's deliberate 
misconduct is significant because he did not perform the duties of an 
RSO as described in 10 CFR 34.42. Specifically, as RSO he was 
responsible for ensuring that radiation safety activities were being 
performed in accordance with approved procedures and regulatory 
requirements in the daily operation of the licensee's program. In this 
case, not only did Mr. Vandiver deliberately violate 10 CFR 34.41(a), 
he was also aware that other AIX radiographers were deliberately 
violating this requirement and took no actions to stop it. Then, when 
questioned by the NRC, he knowingly provided incomplete and inaccurate 
information about the violations.

III

    The NRC must rely on Licensees and their employees to act with 
integrity in complying with NRC requirements, and communicating with 
candor. In addition, the NRC has greater expectations for company 
managers, including radiation safety officers, to fulfill their 
required responsibilities in providing oversight of company activities 
to ensure that NRC requirements are followed. Mr. Vandiver'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. 
Vandiver 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. Vandiver were permitted at this time to be 
involved in NRC-licensed activities. Therefore, the public health and 
safety interest require that Mr. Vandiver be prohibited from any 
involvement in NRC-licensed activities for a period of 3 years from the 
date of this Order. Additionally, Mr. Vandiver 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. Vandiver'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. Kenneth J. Vandiver is prohibited for 3 years 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. Vandiver 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 3-year period of prohibition 
has expired, Mr. Vandiver 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. Vandiver 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, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Vandiver 
of good cause.

V

    In accordance with 10 CFR 2.202, Mr. Kenneth J. Vandiver 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. Vandiver 
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 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 
HEARINGDOCKET@NRC.GOV, 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

[[Page 50657]]

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 
ViewerTM to access the Electronic Information Exchange 
(EIE), a component of the E-Filing system. The Workplace Forms 
ViewerTM is free and is available at https://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 https://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 https://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 https://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 
https://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. Vandiver 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. Vandiver 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. Vandiver, 
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. E8-19832 Filed 8-26-08; 8:45 am]
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