[Federal Register Volume 87, Number 48 (Friday, March 11, 2022)]
[Notices]
[Pages 14048-14050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05160]
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NUCLEAR REGULATORY COMMISSION
[IA-21-062; NRC-2022-0055]
In the Matter of Mr. Joseph Berkich
AGENCY: Nuclear Regulatory Commission.
ACTION: Order; issuance.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an
Order prohibiting involvement in NRC-licensed activities to Mr. Joseph
Berkich. Mr. Berkich, the former owner of Steel City Gamma, LLC (SCG),
engaged in deliberate misconduct that caused SCG to be in violation of
NRC requirements.
DATES: The Order prohibiting involvement in NRC-licensed activities
became effective on March 2, 2022.
ADDRESSES: Please refer to Docket ID NRC-2022-0055 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly available information related to this document
using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0055. Address
questions about Docket IDs in Regulations.gov to Stacy Schumann;
telephone: 301-415-0624; email: [email protected]. For technical
questions, contact the individual listed in the For Further Information
Contact section of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Document collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, contact the NRC's Public Document
Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email
to [email protected]. The Order prohibiting involvement in NRC-
licensed activities is available in ADAMS under Accession No.
ML22046A014.
NRC's PDR: You may examine and purchase copies of public
documents, by appointment, at the NRC's PDR, Room P1 B35, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make
an appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Leelavathi Sreenivas, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
001; telephone: 301-287-9249, email: [email protected].
SUPPLEMENTARY INFORMATION: The text of the Order is attached.
Dated: March 8, 2022.
For the Nuclear Regulatory Commission.
Mark D. Lombard,
Director, Office of Enforcement.
Attachment--Order Prohibiting Involvement in NRC-Licensed Activities
United States of America
Nuclear Regulatory Commission
In the Matter of Mr. Joseph Berkich. IA-21-062
Order Prohibiting Involvement in NRC-Licensed Activities
I
At the time of the events discussed below, Joseph Berkich was the
owner of Steel City Gamma, LLC (SCG), an industrial radiography company
located in Pennsylvania. On May 14, 2019, SCG was issued Commonwealth
of Pennsylvania radioactive materials license No. PA-1633, which
authorized SCG to possess and utilize byproduct material in up to three
(3) devices for the purposes of industrial radiography. During the
relevant time periods discussed below, SCG did not possess a specific
license issued by the Nuclear Regulatory Commission under 10 CFR part
30, but as an Agreement State licensee, SCG could conduct radiography
in NRC jurisdiction under the general NRC license granted pursuant to
10 CFR 150.20.
II
On April 2, 2020, the NRC was notified by the Pennsylvania
Department of Environmental Protection (PA DEP) that SCG had been
conducting licensed activities (industrial radiography) under the
company name A&B Testing Services (ABT) for Mid-Atlantic Fabrication
(MAF) at MAF's facility in Pleasant Valley, West Virginia. PA DEP also
informed the NRC that on March 10, 2020, PA DEP had issued
Administrative Orders to SCG and to Mr. Berkich as an individual. The
Administrative Order to SCG amended the company's PA license to
authorize possession and storage only. On April 21, 2020, the U.S.
Regulatory Commission (NRC), Office of Investigations (OI), Region I
field office initiated an investigation to determine whether Steel City
Gamma, LLC and/or A & B Testing Services, LLC (ABT) deliberately
conducted unauthorized and/or unlicensed radiography activities within
NRC jurisdiction.
Based on the evidence gathered during the investigation, the NRC
concluded that two apparent violations of NRC requirements occurred.
First, on December 18, 2019, and from approximately January 1, 2020,
through March 9, 2020, SCG performed radiographic operations in NRC
jurisdiction without first filing for reciprocity, in violation of 10
CFR 150.20(a)(1). Second, from March 10, 2020, until April 9, 2020, SCG
performed radiographic operations in NRC jurisdiction without a valid
NRC or agreement state license, in violation of 10 CFR 30.3(a). The NRC
also concluded that Mr. Berkich's actions appeared to
[[Page 14049]]
constitute deliberate misconduct in violation of 10 CFR 30.10(a)(1).
The OI investigation found that ABT is a PA business entity formed
in early January 2020 by an associate of Mr. Berkich. During the time
period in question, ABT was not licensed by PA DEP or the NRC to
perform industrial radiography. Beginning on or about January 1, 2020,
and continuing into April 2020, Mr. Berkich represented himself to MAF
as an employee of ABT, conducted radiography and directed others to
conduct radiography at the MAF site in West Virginia, and provided
reports of those radiographic operations, using ABT's company name and
information, to MAF. This radiography work was performed using SCG's
equipment.
The investigation also revealed that SCG's work at the MAF site in
West Virginia from January 2020 until March 10, 2020, using the company
name ABT, was performed without first filing for reciprocity with the
NRC or paying the appropriate fees. In addition, on December 18, 2019,
SCG, using its own company name, performed radiography work for Porter
Testing Services (PTS) at the MAF site in West Virginia without filing
for reciprocity or paying the appropriate fees. Mr. Berkich was aware
of the requirement to file for reciprocity when working in NRC
jurisdiction based on his prior work experience with another company,
during which he filed several reciprocity requests with the NRC for
work in West Virginia.
Finally, the investigation found that SCG's work at the MAF site
after March 10, 2020, was performed without SCG possessing a valid NRC
or PA license authorizing SCG to conduct radiography. Mr. Berkich was
aware of the requirements for licensing based on his work experience
and prior interactions with PA DEP. Mr. Berkich was also aware of the
terms of the PA DEP March 10, 2020 Administrative Order, which modified
SCG's license to possession and storage only. After receiving the
Administrative Order during an in-person meeting with PA DEP officials,
Mr. Berkich went to the MAF site and conducted radiography later that
day, and he continued to conduct radiography at the MAF site on
numerous other occasions between March 10 and April 9, 2020.
In a letter dated December 2, 2021, the NRC informed Mr. Berkich
that the NRC was considering escalated enforcement action against him
for apparent violations of NRC's deliberate misconduct rule, 10 CFR
30.10(a)(1). Specifically, the NRC concluded that Mr. Berkich
apparently engaged in deliberate misconduct that caused SCG to be in
violation of 10 CFR 150.20(b)(1) when he engaged in, or directed others
to engage in, industrial radiography at the MAF facility in West
Virginia without first filing for reciprocity. Additionally, the NRC
concluded that Mr. Berkich apparently engaged in deliberate misconduct
that caused SCG to be in violation of 10 CFR 30.3(a) when he engaged
in, or directed others to engage in, industrial radiography at the MAF
site in West Virginia knowing that SCG did not possess a specific or
general NRC license authorizing such activities. In the letter, the NRC
offered Mr. Berkich the opportunity to attend a Predecisional
Enforcement Conference (PEC) to present his perspective on the apparent
violations. A PEC was conducted on February 3, 2022.
During the PEC, Mr. Berkich stated that he did not dispute the
violations. With regard to the work for PTS in December 2019, he stated
that he filled out the reciprocity forms and provided them to the owner
of PTS to provide dates and payment information. Mr. Berkich also
stated that after receiving the Administrative Order from PA DEP he
kept working to bring money in because the financial goal was more than
the penalty, and he acknowledged knowing at the time that performing
radiography under these conditions was not in accordance with the
regulations.
Based on the results of the OI investigation, and information
provided during the PEC, the NRC concluded that Mr. Berkich engaged in
deliberate misconduct in violation of 10 CFR 30.10(a)(1).
III
Based on the above, the NRC has concluded that Mr. Joseph Berkich
engaged in deliberate misconduct in violation of 10 CFR 30.10(a)(1)
that caused Steel City Gamma to be in violation of 10 CFR 150.20(b)(1)
and 10 CFR 30.3(a). The NRC must be able to rely on companies working
within NRC jurisdiction and their employees to comply with NRC
requirements. Mr. Berkich's actions have raised serious doubt as to
whether he can be relied upon to comply with NRC requirements.
Consequently, the NRC lacks 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. Berkich were permitted at this time to be
involved in NRC-licensed activities. Therefore, the public's health,
safety, and interest require that Mr. Berkich be prohibited from any
involvement in NRC-licensed activities for a period of five years from
the date of this Order. Additionally, Mr. Berkich is required to notify
the NRC of his first involvement in NRC-licensed activities for a
period of one year following the expiration of the five-year
prohibition period.
IV
Accordingly, pursuant to sections 81, 161b, 161i, 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 30.10, it is hereby ordered
that:
1. Mr. Joseph Berkich is prohibited for five years from the date of
this Order from conducting, supervising, directing, or in any other way
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 pursuant to the authority granted
by 10 CFR 150.20.
2. If Mr. Joseph Berkich is currently involved in NRC-licensed
activities, he must immediately cease those activities; inform the NRC
of the name, address, and telephone number of the employer or other
entity for whom he is conducting NRC-licensed activities; and provide a
copy of this Order to the employer or other entity.
3. For a period of one year after the five-year prohibition on
engaging in NRC-licensed activities has expired, Mr. Joseph Berkich
shall, within 20 days of accepting his first employment offer involving
NRC-licensed activities or otherwise first becoming involved in NRC-
licensed activities, as defined in Paragraph IV.1 above, provide notice
to the Director, Office of Enforcement, U. S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, of the name, address, and
telephone number of the employer or other entity for whom he will be
participating in or conducting the NRC-licensed activities. In the
notification, Mr. Berkich shall include a statement of his commitment
to compliance with regulatory requirements and the basis for why the
Commission should have confidence that he will now comply with
applicable NRC requirements.
The Director, Office of Enforcement, or designee, may, in writing,
relax or rescind any of the above conditions upon demonstration by Mr.
Joseph Berkich of good cause.
V
In accordance with 10 CFR 2.202, Mr. Berkich must submit a written
answer to this Order under oath or affirmation within 30 days of its
publication in the
[[Page 14050]]
Federal Register. Mr. Berkich's failure to respond to this Order could
result in additional enforcement action in accordance with the
Commission's Enforcement Policy. In addition, Mr. Berkich and any other
person adversely affected by this Order may request a hearing on this
Order within 30 days of its publication in the Federal Register. Where
good cause is shown, consideration will be given to extending the time
to answer or request a hearing. A request for extension of time must be
directed to the Director, Office of Enforcement, U.S. Nuclear
Regulatory Commission, and include a statement of good cause for the
extension.
All documents filed in NRC adjudicatory proceedings including
documents filed by an interested State, local governmental body,
Federally recognized Indian Tribe, or designated agency thereof that
requests to participate under 10 CFR 2.315(c), must be filed in
accordance with 10 CFR 2.302. The E-Filing process requires
participants to submit and serve all adjudicatory documents over the
internet, or in some cases, to mail copies on electronic storage media,
unless an exemption permitting an alternative filing method, as
discussed below, is granted. Detailed guidance on electronic
submissions is located in the Guidance for Electronic Submissions to
the NRC (ADAMS Accession No. ML13031A056) and on the NRC website at
https://www.nrc.gov/site-help/e-submittals.html.
To comply with the procedural requirements of E-Filing, at least 10
days prior to the filing deadline, the participant should contact the
Office of the Secretary by email at [email protected], or by
telephone at 301-415-1677, to (1) request a digital identification (ID)
certificate, which allows the participant (or its counsel or
representative) to digitally sign submissions and access the E-Filing
system for any proceeding in which it is participating; and (2) advise
the Secretary that the participant will be submitting a petition or
other adjudicatory document (even in instances in which the
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the
Secretary will establish an electronic docket for the proceeding if the
Secretary has not already established an electronic docket.
Information about applying for a digital ID certificate is
available on the NRC's public website at https://www.nrc.gov/site-help/e-submittals/getting-started.html. After a digital ID certificate is
obtained and a docket created, the participant must submit adjudicatory
documents in Portable Document Format. Guidance on submissions is
available on the NRC's public website at https://www.nrc.gov/site-help/electronic-sub-ref-mat.html. A filing is considered complete at the
time the document is submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing 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 email confirming receipt of the document. The E-Filing
system also distributes an email that provides access to the document
to the NRC's 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, applicants and other participants
(or their counsel or representative) must apply for and receive a
digital ID certificate before adjudicatory documents are filed to
obtain access to the documents via the E-Filing system.
A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC's Electronic
Filing Help Desk through the ``Contact Us'' link located on the NRC's
public website at https://www.nrc.gov/site-help/e-submittals.html, by
email to [email protected], or by a toll-free call at 1-866-672-
7640. The NRC Electronic Filing Help Desk is available between 9 a.m.
and 6 p.m., Eastern Time, Monday through Friday, excluding government
holidays.
Participants who believe that they have good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
stating why there is good cause for not filing electronically and
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted in accordance with 10 CFR
2.302(b)-(d). Participants filing adjudicatory documents in this manner
are responsible for serving their documents on all other participants.
Participants granted an exemption under 10 CFR 2.302(g)(2) must still
meet the electronic formatting requirement in 10 CFR 2.302(g)(1),
unless the participant also seeks and is granted an exemption from 10
CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the
NRC's electronic hearing docket, which is publicly available at https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the
presiding officer. If you do not have an NRC-issued digital ID
certificate as described above, click ``cancel'' when the link requests
certificates and you will be automatically directed to the NRC's
electronic hearing dockets where you will be able to access any
publicly available documents in a particular hearing docket.
Participants are requested not to include personal privacy information
such as social security numbers, home addresses, or personal phone
numbers in their filings unless an NRC regulation or other law requires
submission of such information. 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
should not include copyrighted materials in their submission.
If a person other than Mr. Berkich 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 Mr. Berkich or a person whose interest
is adversely affected, the Commission will issue an Order designating
the time and place of any hearings. If a hearing is held, the issue to
be considered at such hearing shall be whether this 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 IV above shall be final 30 days from
the date this Order is published in the Federal Register 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.
For the Nuclear Regulatory Commission.
/RA/
Mark D. Lombard,
Director, Office of Enforcement.
Dated this 2nd day of March 2022.
[FR Doc. 2022-05160 Filed 3-10-22; 8:45 am]
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