[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]

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