In the Matter of Geisser Engineering Corporation, 46469-46472 [2014-18815]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 79, Number 153 (Friday, August 8, 2014)]
[Notices]
[Pages 46469-46472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18815]


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NUCLEAR REGULATORY COMMISSION

[EA-13-105; NRC-2014-0186]


In the Matter of Geisser Engineering Corporation

AGENCY: Nuclear Regulatory Commission.

ACTION: Order; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an 
order imposing a civil monetary penalty to Geisser Engineering 
Corporation. The order requires Geisser Engineering Corporation to pay 
a civil penalty in the amount of $8,400.

DATES: Effective Date: See attachment.

ADDRESSES: Please refer to Docket ID NRC-2014-0186 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this action by the 
following methods:
     Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2014-0186. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3422; email: Carol.Gallagher@nrc.gov. 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 access publicly available documents online in the NRC 
Library at https://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number 
for each document referenced in this document (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Thomas Marenchin, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
2979, email: Thomas.Marenchin@nrc.gov.

SUPPLEMENTARY INFORMATION: The text of the Order and appendix are 
attached.

    Dated at Rockville, Maryland, this 31st day of July 2014.

    For the Nuclear Regulatory Commission.
Patricia K. Holahan,
Acting Director, Office of Enforcement.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

 
 
 
In the Matter of:
 
Geisser Engineering Corporation)      Docket No. 15000038
Riverside, Rhode Island               License No.: RI 3L-050-01 EA-13-
                                       105
 

ORDER IMPOSING CIVIL MONETARY PENALTY
I
    Geisser Engineering Corporation (GEC) is the holder of a materials 
license issued by the State of Rhode Island, an NRC Agreement State. 
The Rhode Island license authorizes the possession, use, and storage of 
portable moisture density gauges containing radioactive material

[[Page 46470]]

within the State of Rhode Island. GEC, as holder of a State license, 
may perform work authorized by its license in other States or Federal 
jurisdictions provided GEC files for reciprocity with the appropriate 
regulatory authority.
II
    An inspection of the GEC's activities was conducted on May 9, 2012, 
with continued in-office review through August 15, 2013. The inspection 
identified one violation involving multiple examples of GEC's failure 
to file for reciprocity with the U.S. Nuclear Regulatory Commission 
(NRC) prior to conducting work in NRC jurisdiction. In addition to the 
inspection activities, the NRC Office of Investigations conducted an 
investigation to determine whether a senior official of GEC 
deliberately engaged in the use of licensed material in areas of NRC 
jurisdiction without filing for reciprocity. The investigation 
concluded that the president and owner of GEC deliberately engaged in 
the use of licensed material in the State of Connecticut and at the 
Newport Naval Station in Rhode Island, areas of NRC jurisdiction, 
without filing for reciprocity with the NRC. A written Notice of 
Violation and Proposed Imposition of Civil Penalty (Notice) was served 
upon GEC by letter dated March 20, 2014. The Notice states the nature 
of the violation, the provision of the NRC's requirements that GEC 
violated, and the amount of the civil penalty proposed for the 
violation. GEC responded to the Notice in a letter dated April 15, 
2014. In its response and in subsequent communications with the NRC, 
GEC acknowledged the violation, but disputed the willful aspect of the 
violation (the willful aspect of the violation will be addressed in a 
separate correspondence) and requested that the NRC mitigate the civil 
penalty. Specifically, in an email correspondence dated April 30, 2014, 
the president of GEC stated, in part, that GEC was seeking relief from 
the proposed civil penalty due to the unexpected payment of a fine to 
the Commonwealth of Massachusetts (Commonwealth) for GEC's failure to 
file for reciprocity prior to using a nuclear density gauge in the 
Commonwealth's jurisdiction. The president also stated that payment of 
the proposed NRC civil penalty would pose a financial hardship for GEC.
III
    After consideration of GEC's response and statement of fact, 
explanation, and argument for mitigation contained therein, the NRC has 
determined, as set forth in the Appendix to this Order, there is an 
adequate basis to reduce the civil penalty for the associated NRC 
violation, that the violation occurred as stated, that the amount of 
the proposed penalty should be reduced by $2800 (25%), and a civil 
penalty in the amount of $8,400 should be imposed.
IV
    In view of the foregoing and pursuant to Section 234 of the Atomic 
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, 
IT IS HEREBY ORDERED THAT: GEC pay a civil penalty in the amount of 
$8,400 within 30 days of the date of this Order, in accordance with 
NUREG/BR-0254. In addition, at the time payment is made, GEC shall 
submit a statement indicating when and by what method payment was made, 
to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 
20852-2738.
V
    In accordance with Title 10 of the Code of Federal Regulations (10 
CFR) 2.202, GEC must, and any other person adversely affected by this 
Order may, submit an answer to this Order within 30 days of the date of 
this Order. In addition, GEC may demand a hearing on all or part of 
this Order. Any other person adversely affected by this Order may 
request a hearing on this Order within 30 days of the date of this 
Order. 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, NRC, and include a statement of good cause for the 
extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007, as amended by 77 FR 46562, August 3, 2012), codified 
in pertinent part at 10 CFR Part 2, Subpart C. 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. Participants may not submit paper copies of their 
filings unless they seek an exemption in accordance with the procedures 
described below.
    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 hearing.docket@nrc.gov, or by 
telephone at (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 
proceeding in which it is participating; and (2) advise the Secretary 
that the participant will be submitting a request or petition for 
hearing (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 hearing in this proceeding if the Secretary has not 
already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at https://www.nrc.gov/site-help/e-submittals/getting-started.html. System requirements for accessing the 
E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
https://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form available 
from the NRC's Electronic Information Exchange (EIE). In order to serve 
documents through EIE, users will be required to install a web browser 
plug-in from the NRC Web site. Further information on the web-based 
submission form, including the installation of the Web browser plug-in, 
is available on the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html.
    After the Office of the Secretary has created a docket and a 
participant has obtained a digital ID certificate, then the participant 
may submit a demand for hearing or request for hearing or petition for 
leave to intervene through the 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-

[[Page 46471]]

submittals.html. A filing is considered complete at the time the 
documents are 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 (ET) on the due date. Upon 
receipt of a transmission, the E-Filing system time-stamps the document 
and sends the submitter an email notice confirming receipt of the 
document. The E-Filing system also distributes an email 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 documents 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/petition to intervene is filed so that they 
can obtain access to the document via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at https://www.nrc.gov/site-help/e-submittals.html, by email at 
MSHD.Resource@nrc.gov, or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a 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 
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. A presiding officer, 
having granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket, which is available to the public at 
https://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the 
Commission, or the 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, unless an NRC 
regulation or other law requires submission of such information. With 
respect to copyrighted works, participants are requested not to include 
copyrighted materials in their submission, except for limited excerpts 
that serve the purpose of the adjudicatory filings and would constitute 
a Fair Use application.
    If a person other than GEC 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 GEC 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 a 
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 issued 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.
    If payment has not been made by the time specified above, the 
matter may be referred to the Attorney General for further action, 
including collection.
    Dated at Rockville, Maryland, this 31st day of July 2014

    For the Nuclear Regulatory Commission

Patricia K. Holahan, Ph.D., Acting Director Office of Enforcement
APPENDIX
EVALUATION AND CONCLUSION
    On March 20, 2014, a Notice of Violation and Proposed Imposition of 
Civil Penalty (Notice) was issued for a violation of U.S. Nuclear 
Regulatory Commission (NRC) requirements involving the Geisser 
Engineering Corporation's (GEC's) failure to file for reciprocity prior 
to conducting work in NRC jurisdiction. The violation was identified 
during an NRC inspection. GEC responded to the Notice in a letter dated 
April 15, 2014. GEC acknowledged the violation, but requested 
mitigation of the civil penalty assigned to GEC. The NRC's evaluation 
and conclusion regarding GEC's request to mitigate the civil penalty 
are as follows:

Restatement of Violation as provided in the Notice (March 20, 2014)

    During an NRC inspection conducted between May 9, 2012, and August 
15, 2013, and an investigation initiated on June 20, 2012, and 
completed on April 26, 2013, multiple occurrences of a violation of NRC 
requirements were identified. In accordance with the NRC Enforcement 
Policy, the NRC proposes to impose a civil penalty pursuant to Section 
234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, 
and 10 CFR 2.205. The particular violation and associated civil penalty 
are set forth below:
    10 CFR 30.3 requires, in part, that except for persons exempt as 
provided in this part and part 150 of this chapter, no person shall 
own, possess, or use byproduct material except as authorized in a 
specific or general license issued pursuant to the regulations in 10 
CFR 30.
    10 CFR 150.20(a) states, in part, that any person who holds a 
specific license from an Agreement State is granted an NRC general 
license to conduct the same activity in Non-Agreement States and areas 
of exclusive Federal jurisdiction within Agreement States, subject to 
the provisions of 10 CFR 150.20(b).
    10 CFR 150.20(b)(1) requires, in part, that any person engaging in 
activities in Non-Agreement States shall, at least 3 days before 
engaging in each such activity, file a submittal containing an NRC Form 
241, ``Report of Proposed Activities in Non-Agreement States,'' a copy 
of its Agreement State specific license, and the appropriate fee, with 
the Regional Administrator of the appropriate NRC regional office.
    Contrary to the above, between October 21, 2009, and June 23, 2011, 
Geisser Engineering Corporation, which is authorized for possession and 
use of radioactive material under a Rhode Island Agreement State 
license, used portable devices containing byproduct material within NRC 
jurisdiction on 22

[[Page 46472]]

occasions without submitting NRC Form 241, a copy of its Agreement 
State specific license, and the required fee for calendar years 2009, 
2010, and 2011, with the Regional Administrator of the appropriate NRC 
regional office.
    This is a Severity Level II violation. (Section 6.9) Civil 
Penalty--$11,200 (EA-13-105)

GEC's Response to the Violation

    In its letter dated April 15, 2014, GEC acknowledged the violation, 
but disagreed with the NRC's conclusion that the GEC president 
willfully (i.e., deliberately) caused the violation. The NRC's re-
evaluation of the willful aspect of the violation is addressed in a 
separate correspondence to the president of GEC.

Summary of GEC's Request for Mitigation of Civil Penalty Amount

    In its response, GEC requested relief from the civil penalty and 
requested that the NRC consider the penalty imposed on GEC by the 
Commonwealth of Massachusetts for the use of a nuclear density gauge in 
its jurisdiction without filing for reciprocity.
    In the April 15, 2014, letter, and in an email correspondence dated 
April 30, 2014, GEC requested relief from the proposed civil penalty 
due to the unexpected payment to the Commonwealth of Massachusetts for 
the use of a nuclear density gauge in its jurisdiction without filing 
for reciprocity. Specifically, GEC stated that payment of the 
additional NRC proposed civil penalty would pose a financial hardship 
for GEC. To support its request, on May 5, 2014, GEC submitted by email 
GEC's tax returns for calendar years 2011 and 2012.

NRC Evaluation of GEC's Request for Mitigation of Civil Penalty Amount

    In response to GEC's request, the NRC reviewed GEC's financial 
information, the documentation included as part of the inspection and 
investigation, and the applicable enforcement guidance to determine the 
appropriate action.
    The Enforcement Policy Section 2.3.4 allows the use of discretion 
in application of a Civil Penalty, including a secondary consideration 
of the licensee's ability to pay. Specifically, it is not the NRC's 
intention that the economic impact of a civil penalty be so severe that 
it puts a licensee out of business. However, the Enforcement Policy 
Section 3.6 also states that one of the civil penalty assessment 
factors to be considered in applying discretion is the presence of 
willful behavior that caused a noncompliance with NRC requirements in 
order to obtain an economic benefit. The NRC determined that Mr. 
Geisser, President of GEC, acted deliberately and provided GEC an 
economic benefit of not paying NRC reciprocity fees for calendar years 
2009, 2010, and 2011. The reciprocity fees for those years provided GEC 
an economic benefit of approximately $6,000.
    In the NRC's evaluation of GEC's request, the NRC considered the 
potential financial implications and hardships that payment of the 
proposed civil penalty would place on GEC, the financial penalty taken 
previously against GEC by the Commonwealth of Massachusetts, and the 
economic benefit GEC received for not complying with NRC requirements. 
Specifically, the NRC considered that a substantial financial penalty 
has already been imposed on GEC by the Commonwealth for the same 
violation during the same time-frame, although in different 
jurisdictions, and that payment of the proposed NRC civil penalty may 
pose a financial hardship for GEC.
    The NRC determined that GEC provided an adequate basis that the NRC 
civil penalty may pose a financial hardship for GEC. However, while 
some reduction of the full civil penalty is warranted, the NRC also 
considered that the civil penalty should account for the economic 
benefit that GEC gained by not complying with NRC requirements to file 
for reciprocity with the NRC and pay the required fees.

NRC Conclusion

    Based on its evaluation, the NRC has concluded that the violation 
occurred as stated and that GEC provided an adequate basis for 
mitigation of the civil penalty. Consequently, a civil penalty in the 
amount of $8,400 is imposed.

[FR Doc. 2014-18815 Filed 8-7-14; 8:45 am]
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