In the Matter of: Mr. Luis Fernandez; Confirmatory Order (Effective Immediately), 5879-5880 [E8-1785]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Notices]
[Pages 5879-5880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1785]


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NUCLEAR REGULATORY COMMISSION

[IA-07-026]


In the Matter of: Mr. Luis Fernandez; Confirmatory Order 
(Effective Immediately)

I

    Mr. Luis Fernandez is the former Security Project Manager for 
Wackenhut Nuclear Services (Wackenhut) at the Turkey Point Nuclear 
Plant (Turkey Point) operated by Florida Power and Light Company (FPL). 
FPL holds License No. DPR-31 and DPR-41, issued by the Nuclear 
Regulatory Commission (NRC or Commission) on July 19, 1972, and April 
10, 1973, respectively, pursuant to 10 CFR part 50. The licenses 
authorize the operation of Turkey Point, Units 3 & 4, in accordance 
with the conditions specified therein. Turkey Point is located on the 
Licensee's site in Florida City, Florida.

II

    In approximately October 2004, a firing pin from a contingency 
response weapon was discovered to be damaged at FPL's Turkey Point 
facility. Mr. Fernandez participated in an inquiry of the damage and 
documented the results of that inquiry in Condition Report (CR) 2004-
13573. As the Security Project Manager for WNS at Turkey Point during 
this time, Mr. Fernandez was knowledgeable of the circumstances and 
assisted in the preparation and/or approval of the documentation 
contained in Condition Report (CR) 2004-13573.

III

    In February 2006, the NRC's Office of Investigations (OI) initiated 
an investigation into the circumstances surrounding the damaged firing 
pin, and the NRC was provided a copy of CR 2004-13573. Based on the OI 
investigation, the NRC reached a preliminary conclusion that Mr. 
Fernandez' documentation of the circumstances involving the damaged 
firing pin in CR 2004-13573 was not complete and accurate in all 
material respects. The NRC also preliminarily concluded that Mr. 
Fernandez' incomplete or inaccurate documentation of the circumstances 
was deliberate. As a result, the NRC concluded that Mr. Fernandez was 
in apparent violation of 10 CFR 50.5, in that his actions caused FPL to 
be in violation of 10 CFR 50.9.
    The results of the NRC's preliminary conclusion were provided to 
Mr. Fernandez by letter dated May 30, 2007. The NRC's letter informed 
Mr. Fernandez that the NRC was considering the apparent violation for 
escalated enforcement action in accordance with the NRC Enforcement 
Policy, and offered Mr. Fernandez a choice to: (1) Attend a Pre-
decisional Enforcement Conference; (2) provide a written response; or 
(3) request ADR with the NRC in an attempt to resolve any disagreement 
on whether a violation occurred, the appropriate enforcement action, 
and the appropriate corrective actions. In response, Mr. Fernandez 
requested ADR to resolve the matter. Mr. Fernandez and the NRC 
participated in an ADR session in Miami, Florida, on November 9, 2007. 
Consistent with the purposes of ADR, the parties acknowledged that the 
session was not for the purposes of reaching any conclusions regarding 
any facts or circumstances as discussed in the NRC's letter to Mr. 
Fernandez of May 30, 2007.
    As the result of the ADR session, Mr. Fernandez and the NRC reached 
a settlement agreement. The elements of the Agreement in Principle 
consisted of the following:
    1. Mr. Fernandez elaborated on the circumstances concerning his 
involvement in the drafting of Condition Reports, in support of his 
view that his actions did not represent deliberate misconduct. Mr. 
Fernandez acknowledges that CR 2004-13573 was inartfully worded and 
subject to misinterpretation. However, Mr. Fernandez also stated that 
he had no intent to deceive the NRC or FPL with respect to CR 2004-
13573. Furthermore, Mr. Fernandez expressed a clear understanding of 
the importance of preparing documentation at NRC-regulated facilities 
that is complete and accurate.
    2. Mr. Fernandez indicated that since approximately February 2006, 
he has

[[Page 5880]]

not been involved in any activities at any facility that is subject to 
NRC regulations. Mr. Fernandez also indicated that, as of the date of 
the ADR meeting, he has no intention of working or seeking employment 
in any activities or at any facility subject to NRC regulations, and 
that he will not seek employment requiring his participation in NRC-
regulated activities before June 30, 2008.
    3. Mr. Fernandez agreed that, should he seek employment with an 
entity involved in NRC-regulated activities and requiring unescorted 
access authorization prior to June 30, 2010, he will provide the NRC 
with a letter discussing the steps he has taken to assure his 
understanding of the importance of completeness and accuracy of 
information at facilities subject to NRC regulation. In addition, Mr. 
Fernandez agreed to provide any such future employer with a copy of 
this Confirmatory Order. Mr. Fernandez further agreed he will make 
himself available to participate in training to discuss lessons learned 
from this matter and the importance of completeness and accuracy of 
condition reports and other internal documents.
    4. The NRC concluded that Mr. Fernandez's agreement not to seek 
employment with an entity involved in NRC-regulated activities and 
requiring unescorted access authorization until after June 30, 2008, 
and his agreement, should he seek employment with such an entity prior 
to June 30, 2010, to provide to the NRC a letter discussing the steps 
he has taken to assure his understanding of NRC requirements in effect 
at the time, is sufficient to address all Agency concerns regarding his 
involvement in the matter discussed in the NRC's letter of May 30, 
2007.
    5. In consideration of the above, the NRC agreed to forego issuance 
of a Notice of Violation or other enforcement action in this matter.
    6. The NRC and Mr. Fernandez agreed that the above elements will be 
incorporated into a Confirmatory Order.
    7. Mr. Fernandez agreed to waive the right to request a hearing 
regarding all or any part of the Confirmatory Order.

IV

    Because Mr. Fernandez 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. Fernandez's commitments set forth in section V 
below are acceptable and necessary, and I 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. Fernandez's commitments be confirmed by this Order. 
Based on the above and Mr. Fernandez's consent, this Order is 
immediately effective upon issuance.

V

    Accordingly, pursuant to sections 104, 161b, 161i, 161o, and 186 of 
the Atomic Energy Act of 1954, as amended, the Commission's regulations 
in 10 CFR 2.202 and 10 CFR part 50, It is hereby ordered, effective 
immediately, that:
    1. Mr. Fernandez will not seek employment requiring his 
participation in NRC-regulated activities before June 30, 2008.
    2. Should Mr. Fernandez seek employment with an entity involved in 
NRC-regulated activities and requiring unescorted access authorization 
before June 30, 2010, he will provide the NRC with a letter discussing 
the steps he has taken to assure he understands the importance of 
providing complete and accurate information at facilities subject to 
NRC regulation.
    3. Mr. Fernandez will provide any future employer engaged in NRC-
regulated activities with a copy of this Confirmatory Order.
    4. Should Mr. Fernandez resume employment in NRC-regulated 
activities, he will make himself available to participate in training 
to discuss lessons learned from this matter and the importance of 
preparing complete and accurate condition reports and other internal 
documents.
    The Regional Administrator, NRC Region II, may relax or rescind, in 
writing, any of the above conditions upon a showing by Mr. Fernandez of 
good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Luis Fernandez, 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 made in writing to the Director, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and 
include a statement of good cause for the extension. Any request for a 
hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Chief, Rulemakings and Adjudications Staff, 
Washington, DC 20555-0001. Copies of the hearing request shall also be 
sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001; to the Assistant General Counsel 
for Materials Litigation and Enforcement, at the same address; to the 
Regional Administrator, NRC Region II, 61 Forsyth Street SW., Suite 
23T85, Atlanta, GA 30303-8931; and to Mr. Luis Fernandez. Because of 
the possible 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 
hearingdocket@nrc.gov and also to the Office of the General Counsel 
either by means of facsimile transmission to 301-415-3725 or by e-mail 
to OGCMailCenter@nrc.gov. If a person other than Mr. Fernandez 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.
    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.
    An answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    Dated this 22nd day of January 2008.

    For the Nuclear Regulatory Commission.
Victor M. McCree,
Acting Regional Administrator.
[FR Doc. E8-1785 Filed 1-30-08; 8:45 am]
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