In the Matter of Mr. Joseph Berkich, 14048-14050 [2022-05160]

Agencies

• NUCLEAR REGULATORY COMMISSION

[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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