[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