[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Notices]
[Pages 40304-40306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17030]
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NUCLEAR REGULATORY COMMISSION
[IA-03-002]
Mr. Lowell S. Trujillo; Order Prohibiting Involvement in NRC-
Licensed Activities (Effective Immediately)
I
Mr. Lowell S. Trujillo is not a holder of any Byproduct, Source, or
Special Nuclear Material License issued by the Nuclear Regulatory
Commission (NRC or Commission)
II
In July 2002, Mr. Lowell S. Trujillo and two other individuals
started a business venture in the State of Idaho under the name of
Structural Testing and Inspection (STI). In September 2002, the NRC was
contacted by a Deputy Sheriff from Custer County, Idaho, to discuss the
Deputy Sheriff's having temporarily impounded, and later released, a
portable gauge containing NRC-licensed material that was in the
possession of STI. The Deputy Sheriff indicated that he had released
the gauge when he was shown a bill of sale and an NRC license. In late
September 2002, the NRC conducted an
[[Page 40305]]
inspection to determine the circumstances surrounding this incident and
discovered that STI, which did not hold an NRC license, had purchased
and used two portable gauges containing NRC-licensed material. NRC
regulations (i.e., 10 CFR 30.3) state, in part, that no person shall
receive, acquire, own, possess, or use byproduct material except as
authorized in a specific or general license issued pursuant to the
regulations in 10 CFR part 30. Based on these circumstances, including
the fact that Mr. Trujillo had used, without authorization, a former
employer's NRC license, to purchase and use the gauges, the NRC's
Office of Investigations (OI) launched an investigation to determine if
willful violations of NRC requirements had occurred.
NRC's inspection and investigation of this matter determined the
following. On August 28, 2002, Mr. Trujillo purchased and took
possession of a Troxler Model 3411 portable moisture-density gauge from
Qal-Tek Associates (QTA) for STI's use. Troxler Model 3411 gauges
contain byproduct material, including about 10 millicuries of Cesium-
137 and about 50 millicuries of Americium-241. At the time, the QTA
employee who sold the gauge to Mr. Trujillo was aware that Mr. Trujillo
was employed by All Tech Corporation (ATC), an NRC licensee, and
believed that the purchase was being made under the authority of ATC's
license. Mr. Trujillo advised the QTA employee that the gauge was going
to be sold to STI. Approximately one week later, Mr. Trujillo contacted
QTA and purchased a second Troxler Model 3411 gauge, again for STI's
use. At the time that STI purchased and took possession of these
gauges, STI did not have an NRC license, and had not made application
to the NRC for a license.
On September 12, 2002, when the Custer County, Idaho, Deputy
Sheriff confiscated and impounded one of STI's Troxler gauges during a
search for stolen construction equipment, Mr. Trujillo faxed to the
Sheriff's office a copy of a bill of sale for the gauge along with a
copy of an NRC license held by Reliance Testing and Inspection (RTI).
The license, which the NRC later determined was not a current version
of RTI's license, listed Mr. Trujillo as the Radiation Safety Officer
(RSO) for RTI, and the bill of sale showed the gauge had been purchased
by STI. Based on that information, the Deputy Sheriff released the
gauge to STI but contacted the NRC to discuss the incident. One day
after this incident, Mr. Trujillo contacted the NRC and was told that
he was no longer listed as the RSO on RTI's license (Note: Mr. Trujillo
also had contacted the NRC in May 2002 and July 2002 regarding whether
he was still listed as the RSO on RTI's license).
On September 26, an NRC inspector and the Deputy Sheriff confronted
an STI employee at a temporary job site and asked the employee to
produce the NRC license under which he was authorized to possess and
use a portable gauge that he had with him. The STI employee produced a
copy of RTI's (outdated) license which listed Mr. Trujillo as the RSO.
The Deputy Sheriff confiscated the gauge. The inspector and Deputy
Sheriff contacted Mr. Trujillo about the second gauge in STI's
possession, and Mr. Trujillo voluntarily surrendered the second gauge
to the Deputy Sheriff. Within a day of this incident, Mr. Trujillo
faxed an application for an NRC license for STI to possess and use the
gauges. Subsequently, STI has withdrawn its license application.
NRC contacts with ATC and RTI determined that neither company had
authorized STI or Mr. Trujillo to use their NRC licenses to purchase or
use gauges containing NRC-licensed material. The NRC also determined
that Mr. Trujillo is knowledgeable and experienced with respect to
NRC's regulation of portable density gauges. He has conducted licensed
activities with portable gauging devices for approximately ten years.
During that time, he has worked as an assistant RSO and an RSO for
different NRC licensees.
On March 10, 2003, the NRC issued letters to STI and Mr. Trujillo
describing apparent violations of NRC requirements and, in Mr.
Trujillo's case, describing the NRC's concern that he engaged in
deliberate misconduct by purchasing and using the gauges without a
license. Separate predecisional enforcement conferences were conducted
with STI and Mr. Trujillo on March 26, 2003. During his conference, Mr.
Trujillo maintained that he thought he was authorized to purchase and
use gauges for STI because his name was listed as RSO on RTI's license,
even though he had been terminated from RTI's employment in March 2001.
He maintained that he did not deliberately violate NRC requirements.
Based on its evaluation of all of the facts and circumstances in
this matter, the NRC has concluded that Mr. Trujillo's explanation and
assertions are not credible and that he deliberately violated NRC
requirements in 10 CFR 30.3 when he purchased and used these gauges
without an NRC license. The NRC bases its conclusion, in part, on the
following reasons. Mr. Trujillo has approximately ten years of
experience in licensed activities including acting as assistant RSO for
one licensee and RSO for another licensee. His experience includes
submitting an application for an NRC license, and he is familiar with
NRC license requirements. In May 2002 and July 2002, when Mr. Trujillo
contacted the NRC regarding RTI's license, he never informed the NRC
that he was planning to use RTI's license to purchase and use gauges
for STI. The purpose of his calls was to ask whether he was still
listed as the RSO on RTI's license. Further, it is notable that he did
not contact the NRC immediately prior to purchasing the gauges to find
out if he was still listed on the RTI license. The gauges were
purchased several weeks after his last contact with the NRC. On
September 13, 2002, when Mr. Trujillo again contacted the NRC to
determine if his name was still on the RTI license, and was told that
he was no longer listed as the RSO, Mr. Trujillo did not inform the NRC
that STI was already in possession and using the gauges, and STI
continued to possess and use the gauges until they were confiscated by
the Custer County, Idaho Deputy Sheriff later that month.
III
Based on the above, the NRC has concluded that Mr. Trujillo
deliberately violated NRC requirements in 10 CFR 30.3 when he
purchased, possessed and used portable gauging devices containing
licensed material without an NRC license. To have adequate assurance
that the public health and safety will be protected, the NRC must be
able to rely on the integrity of individuals to comply with NRC
requirements. Mr. Trujillo's actions have raised serious doubts as to
whether he can be relied upon to comply with NRC requirements and to be
honest with the NRC during its inspections and investigations.
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. Trujillo were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public health,
safety and interest require that Mr. Trujillo be prohibited from any
involvement in NRC-licensed activities for a period of three (3) years
from the date of this Order. Furthermore, pursuant to 10 CFR 2.202, I
find that the significance of Mr. Trujillo's conduct described above is
such that the public health, safety and interest require that this
Order be immediately effective.
[[Page 40306]]
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, and 10 CFR 30.3, It is hereby ordered,
effective immediately, that:
1. Mr. Lowell S. Trujillo is prohibited for three (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 in
NRC jurisdiction pursuant to the authority granted by 10 CFR 150.20 and
10 CFR 31.6.
2. If Mr. Trujillo is currently involved in NRC-licensed
activities, Mr. Trujillo 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.
The Director, OE, may, in writing, relax or rescind any of the
above conditions upon demonstration by Mr. Lowell S. Trujillo of good
cause.
V
In accordance with 10 CFR 2.202, Mr. Lowell S. Trujillo 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, DC 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. Trujillo 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: Rulemakings and Adjudications Staff, 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 Materials Litigation and Enforcement at the same address,
to the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive,
Suite 400, Arlington, Texas 76011, and to Mr. Trujillo if the answer or
hearing request is by a person other than Mr. Trujillo. Because of
continuing disruptions in delivery of mail to United States Government
offices, it is requested that answers and requests for hearing be
transmitted to the Secretary of the Commission either by means of
facsimile transmission to (301) 415-1101 or by e-mail to
[email protected] and also to the Office of the General Counsel
either by means of facsimile transmission to (301) 415-3725 or by e-
mail to [email protected]. If a person other than Mr. Trujillo
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. Trujillo 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.
Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Trujillo, 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.
For the Nuclear Regulatory Commission.
Dated this 26th day of June 2003.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research and State Programs.
[FR Doc. 03-17030 Filed 7-3-03; 8:45 am]
BILLING CODE 7590-01-P