[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Notices]
[Pages 37940-37941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18493]
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NUCLEAR REGULATORY COMMISSION
[IA 96-043]
Order Prohibiting Involvement in NRC-Licensed Activities
In the Matter of Jesus N. Osorio (Home Address Deleted Under 10
CFR 2.790).
I
Jesus N. Osorio was employed as the Radiation Safety Officer (RSO)
of NDT Services, Inc. (NDTS or Licensee) in Caguas, Puerto Rico, in
1993. NDTS holds License No. 52-19438-01, issued to the Licensee in
1987 and last amended by the Nuclear Regulatory Commission (NRC or
Commission) pursuant to 10 CFR Part 30, on March 9, 1995. The license
authorizes industrial gamma ray radiography in accordance with the
conditions specified therein. Mr. Osorio was identified in consecutive
amendments to NRC License No. 52-19438-01, dated January 12, 1992 and
October 26, 1993, and in other licensing correspondence, as the RSO for
NDTS.
II
On December 16-17, 1993, a special inspection of NDTS' activities
was conducted at the Licensee's facility in Caguas, Puerto Rico, in
response to notifications received in the NRC Region II office that on
September 4, 1993, two contract radiographers 1 employed by NDTS
had been unable to return a radiography source to its shielded position
following radiographic operations, which resulted in the evacuation of
the Sun Oil Company refinery located in Yabucoa, Puerto Rico, for
several hours. Based on the results of the inspection, an investigation
was initiated by the NRC Office of Investigations (OI) on December 30,
1993.
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\1\ The radiographers involved in the event were contracted by
NDTS from National Inspection and Consultants (NIC), an Agreement
State licensee in Florida. While no written contract was established
to outline the scope and conditions of work, based on the
information available, the NRC concluded that the work performed on
September 4, 1993, was performed under the provisions of the NDTS
license.
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On December 21, 1995, OI completed its investigation and concluded,
in part, that: (1) NDTS, with the knowledge and approval of the former
RSO and former President, deliberately utilized radiographers untrained
in NDTS operating and emergency procedures; and (2) NDTS, through the
actions of the former RSO, provided the NRC with documentation that
falsely certified the radiographers' training.
During an August 31, 1995 interview with OI, Mr. Osorio stated that
he was aware that the radiographers needed training and that they were
required to pass a proficiency test prior to working at the Sun Oil
Company refinery. Mr. Osorio added that, prior to hiring the
radiographers, he informed NDTS' former President that the
radiographers would have to be trained and tested on NDTS equipment.
Nonetheless, Mr. Osorio did not train the radiographers because they
left for their accommodations and he was tired and went home, although
he knew that they would work their shift without the required training.
As to the false training documentation, Mr. Osorio stated that he knew
he signed false documentation and that such falsification constituted a
violation of NRC regulations, but he signed the documentation because
he ``needed to have something.''
Based on the OI conclusions, the NRC further concluded that during
the December 16-17, 1993 inspection, the former RSO orally represented
to an NRC inspector that he demonstrated the safe use of the NDTS
radiography equipment prior to allowing two contract radiographers to
operate the equipment on September 3, 1993, when he knew that he had
not conducted such a demonstration.
On February 15, 1996, Mr. Osorio was contacted by telephone and
initially informed of the inspection and investigation results and was
provided the opportunity to participate in a predecisional enforcement
conference. During this telephone conversation, Mr. Osorio declined to
attend this conference. By letter dated February 20, 1996, Mr. Osorio
was transmitted the Inspection Report and the synopsis of the OI
investigation and again offered the opportunity to attend a conference.
To date, Mr. Osorio has not responded to the February 20, 1996 letter.
No conference has been conducted with him; however, on May 16, 1996, a
teleconference was conducted with Mr. Osorio to further discuss this
case. Additionally, on February 29 and March 4, 1996, predecisional
enforcement conferences were conducted with one of the contract
radiographers, and NDTS, respectively.
Based on the information gathered during the inspection,
investigation, predecisional enforcement conferences, and subsequent
interviews in this case, the NRC has determined that: (1) Mr. Osorio
deliberately permitted unqualified radiographers to perform radiography
for NDTS on September 4, 1993, in that he knew the radiographers had
not been trained in NDTS procedures or equipment; (2) on December 16,
1993, Mr. Osorio provided an NRC inspector with written certification
of the qualifications of the two contract radiographers, dated
September 3, 1993, which falsely indicated that the radiographers had
been qualified based on records obtained from their principal employer
and by the experience demonstrated by the contract radiographers to
him; and (3) on December 16, 1993, Mr. Osorio provided false oral
statements to an NRC inspector indicating that he had demonstrated the
safe use of the NDTS radiography equipment to the radiographers on
September 3, 1993, when, in fact, he had not conducted such a
demonstration.
III
Based on the above, the staff concludes that Mr. Osorio engaged in
deliberate misconduct, a violation of 10 CFR 30.10, which caused the
Licensee to be in violation of 10 CFR 34.31(a) by deliberately failing
to utilize trained and qualified individuals during the conduct of
radiographic operations at the Sun Oil Company refinery on September 4,
1993. Mr. Osorio also violated 10 CFR 30.10(a)(2), and caused the
Licensee to be in violation of 10 CFR 30.9, by deliberately providing
materially inaccurate and incomplete information to the NRC. As the
former RSO of NDTS, Mr. Osorio was responsible to assure that NDTS
conducted activities in accordance with NRC requirements and the NDTS
radiation safety program. The NRC must be able to rely on the Licensee,
its officials and employees to comply with NRC requirements, including
the requirements to train radiographers in accordance with NRC
regulations and to provide complete and accurate information to the
NRC. Mr. Osorio's deliberate misconduct in causing the Licensee to
violate 10 CFR 34.31(a), and his deliberate submission to the NRC
materially inaccurate and incomplete
[[Page 37941]]
information, are violations of 10 CFR 30.10 and have raised 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 health and safety of the public
will be protected if Mr. Osorio were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Mr. Osorio be prohibited from any
involvement in NRC-licensed activities for a period of five years, and,
if he is currently involved with another licensee in NRC-licensed
activities, he must, following the effective date of this Order, 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, Mr. Osorio is required to notify the NRC of his
first employment involving NRC-licensed activities within a period of
five years following the five-year prohibition period.
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, and 10 CFR 30.10, it is hereby ordered
that:
A. For a period of five years from the effective date of this
Order, Jesus N. Osorio is prohibited from engaging in, or exercising
control over individuals engaged in NRC-licensed activities. NRC-
licensed activities are those activities which 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. This prohibition
includes, but is not limited to: (1) Using licensed materials or
conducting licensed activities in any capacity within the jurisdiction
of the NRC; and (2) supervising, directing, or serving as Radiation
Safety Officer for any licensed activities conducted within the
jurisdiction of the NRC.
B. At least five days prior to the first time that Jesus N. Osorio
engages in, or exercises control over, NRC-licensed activities within a
period of five years following the five-year prohibition in Section
IV.A above, a, he shall notify the Director, Office of Enforcement,
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, of the
name, address, and telephone number of the NRC or Agreement State
licensee and the location where the licensed activities will be
performed. The notice shall be accompanied by a statement, under oath
or affirmation, that Jesus N. Osorio understands NRC requirements, that
is committed to compliance with NRC requirements, and that provides a
basis as to 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. Osorio of
good cause.
V
In accordance with 10 CFR 2.202, Jesus N. Osorio 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. Osorio 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: Chief, Docketing and Service Section, 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 II, Suite 2900, 101 Marietta
Street, Atlanta, GA 30323, and to Jesus N. Osorio, if the answer or
hearing request is by a person other than Jesus N. Osorio. If a person
other than Jesus N. Osorio 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 Jesus N. Osorio, or another 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 16th day of July 1996.
For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Deputy Executive Director for Nuclear Materials Safety, Safeguards and
Operations Support.
[FR Doc. 96-18493 Filed 7-19-96; 8:45 am]
BILLING CODE 7590-01-P
