E9-3627. In the Matter of Dhiraj Soni; Order Prohibiting Involvement in NRC-Licensed Activities

I

Dhiraj Soni is the former Vice President of Eastern Testing and Inspection, Inc. (ETI) (Licensee) in Thorofare, New Jersey. ETI holds License No. 29-09814-01 issued by the Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR part 30 in 1964. The license authorizes possession and use of sealed radioactive sources for use in radiographic exposure devices and in portable gauge devices, and possession and use of radioactive material for shielding for radiographic and source changer equipment in accordance with the conditions specified therein.

II

An investigation of licensed activities was conducted by the NRC Office of Investigations (OI) at the Licensee's facility in Thorofare, New Jersey. The OI investigation was completed on October 26, 2007. The investigation was conducted, in part, to determine whether ETI deliberately provided the NRC inaccurate information related to compliance with an NRC Order issued to ETI (ETI Order) and contrary to 10 CFR 30.9, “Completeness and accuracy of information.” Based on information from the investigation, inspection, and after review of a written response from Dhiraj Soni, the NRC concluded that Dhiraj Soni was in violation of 10 CFR 30.10, “Deliberate misconduct,” by deliberately causing ETI to be in violation of 10 CFR 30.9 when he provided inaccurate information to the company that was, in turn, provided to the NRC on behalf of ETI to demonstrate actions toward compliance with the ETI Order. The NRC also concluded that Dhiraj Soni was in violation of 10 CFR 30.10 by deliberately providing inaccurate information in verbal statements made to an NRC inspector on September 20, 2006.

During the investigation, Dhiraj Soni gave inconsistent statements in his sworn testimony regarding his actions at issue. Further, the sworn testimony of law enforcement officers and an NRC inspector contradict the exculpatory testimony and statements of Dhiraj Soni. Due to Dhiraj Soni's inconsistent statements and the consistent statements of law enforcement officers and the NRC inspector, the NRC does not credit Dhiraj Soni's statements as an accurate portrayal of the events at issue.

III

Based on the above, the NRC concluded that Dhiraj Soni, a Licensee official, specifically the Vice President of the Licensee at the time of the violations, engaged in deliberate misconduct that caused the Licensee, ETI, to be in violation of 10 CFR 30.9, “Completeness and accuracy of information” in two separate communications to the NRC regarding its actions toward compliance with the ETI Order. As such, Dhiraj Soni was in violation of 10 CFR 30.10, “Deliberate misconduct,” which states, in part, that any Licensee or employee of a Licensee may not engage in deliberate misconduct that causes a Licensee to be in violation of any rule, regulation, or order issued by the Commission. Dhiraj Soni also engaged in deliberate misconduct in violation of 10 CFR 30.10 by deliberately providing inaccurate information in verbal statements made to an NRC inspector on September 20, 2006.

The NRC must be able to rely on the Licensee and its employees to comply with NRC requirements, including the requirement to provide complete and accurate information at all times. Dhiraj Soni's action in causing the Licensee to violate 10 CFR 30.9, and in his violation of 10 CFR 30.10, raises serious doubt as to whether he can be relied upon to comply with NRC requirements.

Consequently, I lack the requisite reasonable assurance that licensed activities can be conducted in compliance with the Commission's requirements and that the public health, safety, and interest of the public will be protected if Dhiraj Soni were permitted at this time to be involved in NRC-licensed activities. Therefore, the public health, safety and interest require that Dhiraj Soni be prohibited from any involvement in NRC-licensed activities for a period of one year from the effective date of this Order.

IV

Accordingly, pursuant to sections 81, 161b, 161i, 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 150.20, it is hereby ordered that:

1. Dhiraj Soni is prohibited for one year from the date of the effectiveness 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 Dhiraj Soni is currently involved with another entity involved in NRC-licensed activities, he must immediately cease those activities, and inform the NRC of the name, address and telephone number of that entity, and provide a copy of this Order to the entity.

The Director, OE, may, in writing, relax or rescind any of the above conditions upon demonstration by Dhiraj Soni of good cause.

V

In accordance with 10 CFR 2.202, Dhiraj Soni must submit an answer to this Order within 20 days of its issuance. If security-related information is included in the response, please mark the entire response, “Security-Related Information—Withhold Under 10 CFR 2.390.” If the response does not contain any sensitive, security-related information, the NRC will make the response publicly available. Further, to the extent possible, any response provided should not include any personal privacy or proprietary information. In addition, Dhiraj Soni 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.

The answer shall be in writing and under oath and affirmation. The answer may consent to this Order. Unless the answer consents to this Order, the answer shall specifically admit or deny each allegation or charge made in this Order and shall set for the matters of fact and law on which Dhiraj Soni or other person adversely affected relies on the reasons as to why the Order should not have been issued. Any answer to this Order 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; Region Administrator, NRC Region I, 475 Allendale Road, King of Prussia, PA 19406-1415. A copy of the answer shall be provided to Dhiraj Soni, if the answer is by a person other than Dhiraj Soni.

If a hearing request is submitted, the NRC will make the request publicly available. Therefore, the request should not include any security-related, personal, proprietary, or other sensitive information in the hearing request, or, in the alternative, provide a redacted copy of the hearing request that does not include such information. A copy of the hearing request shall be provided to Dhiraj Soni by the requester, if the request is made by a person other than Dhiraj Soni.

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 49,139 (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 [e-mail], or by calling [phone], 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 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 Viewer^TM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer^TM is free and is available at http://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 http://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 http://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 http://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 [phone] or locally, [phone].

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 http://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 the Dhiraj Soni 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 Dhiraj Soni 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), Dhiraj Soni, 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. The motion must state with particularity the reasons why the order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.

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 10th day of February 2009.

For the Nuclear Regulatory Commission.

Cynthia A. Carpenter,

Director, Office of Enforcement.