[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Notices]
[Pages 41130-41131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16365]
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NUCLEAR REGULATORY COMMISSION
[IA-07-069]
In the Matter of Mr. Anthony Fortuna; Confirmatory Order
(Effective Immediately)
I
Mr. Anthony Fortuna was formerly employed as a contract electrician
by General Electric Company at Southern Nuclear Company's Hatch Nuclear
Plant from February 16 though March 27, 2006.
This Confirmatory Order is the result of an agreement reached
during an Alternative Dispute Resolution (ADR) session conducted on
June 6, 2008.
II
An investigation was initiated by the NRC Office of Investigations
(OI) on September 27, 2006, to determine whether Mr. Fortuna willfully
provided materially inaccurate information to the Hatch Nuclear Plant
in order to gain unescorted access to the Plant. Based on the evidence
developed during the investigation, the NRC staff concluded that on
February 6, 2006, in his response to a Personal History Questionnaire,
Mr. Fortuna deliberately failed to disclose that he had previously
tested positive on an employer's drug test. As a result, he gained
unescorted access to the protected area of the Hatch Nuclear Plant from
February 16 through March 27, 2006.
In a letter dated March 13, 2008, the NRC staff advised Mr. Fortuna
that his actions, as described above, constituted an apparent violation
of 10 CFR 50.5, ``Deliberate misconduct.'' This regulation states, in
relevant part, that an employee of a contractor for a licensee who
provides goods or services that relate to a licensee's activities
conducted under 10 CFR part 50, may not deliberately submit to a
licensee or a licensee's contractor, information that the person
submitting the information knows to be incomplete or inaccurate in some
respect material to the NRC. The failure to disclose the prior,
positive drug test was material because it prevented the licensee
(Southern Nuclear Company) from taking the information from this
disclosure into consideration when determining Mr. Fortuna's
trustworthiness and reliability prior to granting him access to the
Hatch Nuclear Plant. The letter also informed Mr. Fortuna that he could
address the apparent violation by requesting a predecisional
enforcement conference, submitting a response in writing or by
requesting Alternative Dispute Resolution (ADR) with the NRC. Mr.
Fortuna requested ADR.
III
On June 6, 2008, the NRC and Mr. Fortuna met in an ADR session
mediated by a professional mediator, arranged through Cornell
University's Institute on Conflict Resolution. ADR is a process in
which a neutral mediator with no decision-making authority assists the
parties in reaching an agreement or resolving any differences regarding
their dispute. This confirmatory order is issued pursuant to the
agreement reached during the ADR process. The elements of the agreement
consist of the following:
1. Mr. Fortuna agrees that his actions, as described above, were in
violation of 10 CFR 50.5, and he acknowledges the seriousness of this
matter and the potential impact his actions had on the ability of NRC
licensees to establish and maintain an effective access authorization
program.
2. Should he become involved in licensed activities in the future,
Mr. Fortuna agrees to comply with all licensee and regulatory
requirements, including the requirement to accurately complete
documentation associated with gaining access authorization to NRC
licensed facilities.
3. Although Mr. Fortuna acknowledges that his failure to disclose
the prior positive drug test was a deliberate act undertaken for the
purpose of obtaining employment at the Hatch plant, he also agrees to
seek all necessary assistance in gaining clarification of questions
contained in access authorization and other licensee supplied
documentation required to be completed for employment at the licensee's
facility, should he become involved in licensed activities in the
future.
4. The NRC and Mr. Fortuna agree that the above elements will be
incorporated into a Confirmatory Order.
5. In consideration of the above, the NRC agrees to exercise
enforcement discretion to forego issuance of a Notice of Violation to
Mr. Fortuna (IA-07-069).
On June 6, 2008, Mr. Fortuna consented to issuance of this Order
with the commitments, as described in Section V below. Mr. Fortuna
further agreed that this Order is to be effective upon issuance and
that he has waived his right to a hearing.
IV
Since Mr. Fortuna has agreed to take actions to address NRC
concerns, as set forth in Section III above, the NRC has concluded that
its concerns can be resolved through issuance of this Order.
I find that Mr. Fortuna's commitments as set forth in Section V are
acceptable and necessary and conclude that with these commitments, the
public health and safety are reasonably assured. In view of the
foregoing, I have determined that public health and safety require that
Mr. Fortuna's commitments be confirmed by this Order. Based on the
above and Mr. Fortuna's consent, this Order is immediately effective
upon issuance.
V
Accordingly, pursuant to Sections 104b, 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 part 50, it is hereby ordered,
effective immediately:
a. Should he become involved in licensed activities in the future,
Mr. Fortuna agrees to comply with all licensee and regulatory
requirements, including the requirement to accurately complete
documentation associated with gaining access authorization to NRC
licensed facilities.
b. Although Mr. Fortuna acknowledges that his failure to disclose
the prior positive drug test was a deliberate act undertaken for the
purpose of obtaining employment at the Hatch plant, he also agrees to
seek all necessary assistance in gaining clarification of questions
contained in access authorization and other licensee supplied
documentation required to be completed for employment at the licensee's
facility, should he become involved in licensed activities in the
future.
The Regional Administrator, NRC Region II, may relax or rescind, in
writing, any of the above conditions upon a showing by Mr. Fortuna of
good cause.
VI
Any person adversely affected by this Confirmatory Order, other
than Mr. Fortuna, may request a hearing within 20 days of its issuance.
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
directed to the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-
[[Page 41131]]
0001, and include a statement of good cause for the extension.
If a person other than Mr. Fortuna 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 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 Confirmatory Order should be
sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), any person adversely affected by
this Order may, within 20 days of the issuance of this order, in
addition to requesting a hearing, 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.
A request for a hearing or to set aside the immediate effectiveness
of this Order must be filed in accordance with the NRC E-Filing rule,
which became effective on October 15, 2007. The NRC E-filing Final Rule
was issued on August 28, 2007 (72 FR 49139) and was codified in
pertinent part at 10 CFR part 2, subpart B. 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
[email protected], 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 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 (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 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.
VII
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 V 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 V shall be final when the extension expires if a
hearing request has not been received. A request for hearing shall not
stay the immediate effectiveness of this order.
Dated this 3rd day of July, 2008.
For the Nuclear Regulatory Commission.
Luis A. Reyes,
Regional Administrator.
[FR Doc. E8-16365 Filed 7-16-08; 8:45 am]
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