In the Matter of Mr. Anthony Fortuna; Confirmatory Order (Effective Immediately), 41130-41131 [E8-16365]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Notices]
[Pages 41130-41131]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8]


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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 
HEARINGDOCKET@NRC.GOV, 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 https://
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 https://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 https://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 https://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 https://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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