Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Notices 27373

petitioner is aware and on which the

petitioner intends to rely to establish

those facts or expert opinion. Petitioner

must provide sufficient information to

show that a genuine dispute exists with

the applicant on a material issue of law

or fact. Contentions shall be limited to

matters within the scope of the

amendment under consideration. The

contention must be one which, if

proven, would entitle the petitioner to

relief. A petitioner who fails to file such

a supplement which satisfies these

requirements with respect to at least one

contention will not be permitted to

participate as a party.

Those permitted to intervene become

parties to the proceeding, subject to any

limitations in the order granting leave to

intervene, and have the opportunity to

participate fully in the conduct of the

hearing, including the opportunity to

present evidence and cross-examine

witnesses.

If the amendment is issued before the

expiration of the 30-day hearing period,

the Commission will make a final

determination on the issue of no

significant hazards consideration. If a

hearing is requested, the final

determination will serve to decide when

the hearing is held.

If the final determination is that the

amendment request involves no

significant hazards consideration, the

Commission may issue the amendment

and make it immediately effective,

notwithstanding the request for a

hearing. Any hearing held would take

place after issuance of the amendment.

If the final determination is that the

amendment request involves a

significant hazards consideration, any

hearing held would take place before

the issuance of any amendment.

A request for a hearing or a petition

for leave to intervene must be filed with

the Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, Attention:

Docketing and Services Branch, or may

be delivered to the Commission’s Public

Document Room, the Gelman Building,

2120 L Street, NW., Washington, DC, by

the above date. Where petitions are filed

during the last 10 days of the notice

period, it is requested that the petitioner

promptly so inform the Commission by

a toll-free telephone call to Western

Union at 1–(800) 248–5100 (in Missouri

1–(800) 342–6700). The Western Union

operator should be given Datagram

Identification Number N1023 and the

following message addressed to Jocelyn

A. Mitchell: petitioner’s name and

telephone number, date petition was

mailed, plant name, and publication

date and page number of this Federal

Register notice. A copy of the petition

should also be sent to the Office of the

General Counsel, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001, and to Jay E. Silbert,

Esquire, Shaw, Pittman, Potts and

Trowbridge, 2300 N Street, NW.,

Washington, DC 20037, attorney for the

licensee.

Nontimely filings of petitions for

leave to intervene, amended petitions,

supplemental petitions and/or requests

for hearing will not be entertained

absent a determination by the

Commission, the presiding officer or the

presiding Atomic Safety and Licensing

Board that the petition and/or request

should be granted based upon a

balancing of the factors specified in 10

CFR 2.714(a)(1) (i)–(v) and 2.714(d).

For further details with respect to this

action, see the application for

amendment dated May 28, 1996, which

is available for public inspection at the

Commission’s Public Document Room,

the Gelman Building, 2120 L Street,

NW., Washington, DC, and at the local

public document room, located at the

Calvert County Library, Prince

Frederick, Maryland 20678.

Dated at Rockville, Maryland, this 29 day

of May 1996.

For the Nuclear Regulatory Commission.

Alexander W. Dromerick,

Senior Project Manager, Project Directorate

I–1, Division of Reactor Projects—I/II, Office

of Nuclear Reactor Regulation.

[FR Doc. 96–13793 Filed 5–30–96; 8:45 am]

BILLING CODE 7590–01–P

[Docket No. 999–90004; License No. KS 22–

B274–0;1 EA 95–276]

Bemis Construction, Inc.; Order

Imposing Civil Monetary Penalty

I

Bemis Construction, Inc., (Bemis) is

the holder of Radioactive Materials

License No. 22–B274–01, a specific

license issued by the state of Kansas, an

Agreement State on September 30, 1987.

The license authorizes Bemis to possess

and use sealed radioactive sources in

portable nuclear density gauges at a

specific location in Great Bend, Kansas

and at temporary jobsites in the State of

Kansas in accordance with the

conditions specified in the license.

Pursuant to 10 CFR 150.20 and its

license, a general license is granted to

Agreement State licensees to conduct

the same activities in areas under NRC

jurisdiction (referred to as

‘‘reciprocity’’), provided that the NRC is

notified and the other provisions of 10

CFR 150.20 are followed.

II

An inspection and investigation of

Bemis’s activities were conducted

during August 17, 1995, through

January 3, 1996. The results of the

inspection and investigation,

documented in a report issued on

January 11, 1996, indicated that Bemis

had not conducted its activities in full

compliance with NRC requirements.

The violations identified included use

and storage of licensed material in NRC

jurisdiction without having complied

with the requirements for reciprocity.

Bemis responded to the inspection

report by letter dated January 22, 1996.

In its letter, Bemis stated that the reason

for the violation was an understanding

that the gauge could be used in

Oklahoma for short periods of time. A

written Notice of Violation and

Proposed Imposition of Civil Penalty

(Notice) was served upon Bemis by

letter dated March 19, 1996. The Notice

stated the nature of the violation, the

provisions of the NRC requirements that

Bemis had violated, and the amount of

the civil penalty proposed for the

violation.

Bemis responded to the Notice by

letter dated April 17, 1996 (Reply to a

Notice of Violation and Answer to a

Notice of Violation). In its response,

Bemis stated that there was an apparent

mistaken belief that a reciprocity permit

with the NRC was not required under

certain conditions. The letter also

requested mitigation of the proposed

civil penalty based on assurances that

Bemis is in compliance now and will

not violate the cited requirements in the

future.

III

After consideration of Bemis’s

response and the statements of fact,

explanation, and argument for

mitigation contained therein, the NRC

staff has determined, as set forth in the

Appendix to this Order, that the

violations occurred as described in the

Notice, and that the penalty proposed

for the violations should be imposed by

order.

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:

Bemis Construction, Inc., pay a civil

penalty in the amount of $2,500 within

30 days of the date of this Order, by

check, draft, money order, or electronic

transfer, payable to the Treasurer of the

United States and mailed to James

Lieberman, Director, Office of
27374 Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Notices

Enforcement, U.S. Nuclear Regulatory

Commission, One White Flint North,

11555 Rockville Pike, Rockville, MD

20852–2738.

V

Bemis may request a hearing within

30 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, D.C. 20555, and include a

statement of good cause for the

extension. A request for a hearing

should be clearly marked as a ‘‘Request

for an Enforcement Hearing’’ and shall

be addressed to the Director, Office of

Enforcement, U.S. Nuclear Regulatory

Commission Washington, D.C. 20555,

with a copy to the Commission’s

Document Control Desk, Washington,

D.C. 20555. Copies also shall be sent to

the Assistant General Counsel for

Hearings and Enforcement at the same

address and to the Regional

Administrator, NRC Region IV, 611

Ryan Plaza Drive, Suite 400, Arlington,

Texas 76011.

If a hearing is requested, the

Commission will issue an Order

designating the time and place of the

hearing. If Bemis fails to request a

hearing within 30 days of the date of

this Order (or if written approval of an

extension of time in which to request a

hearing has not been granted), the

provisions of this Order shall be

effective without further proceedings. If

payment has not been made by that

time, the matter may be referred to the

Attorney General for collection.

In the event Bemis requests a hearing

as provided above, the issue to be

considered at such hearing shall be:

whether, on the basis of the violation

admitted by Bemis, this Order should be

sustained.

Dated at Rockville, Maryland this 23rd day

of May 1996.

For the Nuclear Regulatory Commission.

James Lieberman,

Director, Office of Enforcement.

Appendix—Evaluation and Conclusions

On March 19, 1996, a Notice of Violation

and Proposed Imposition of Civil Penalty

(Notice) in the amount of $2,500 was issued

to Bemis Construction, Inc., (Bemis) for a

violation identified during an NRC

inspection and investigation. Bemis

responded to the Notice in a letter dated

April 17, 1996. Bemis admitted the violation

but requested mitigation of the proposed civil

penalty based on its contention that the

violation was not intentional and on

assurances that Bemis is in compliance now

and will not, in the future, violate the rules

which were cited.

Restatement of Violation Assessed a Civil

Penalty

10 CFR 30.3 requires in relevant part, that

no person shall possess or use byproduct

material except as authorized by a specific or

general license issued by the NRC.

10 CFR 150.20(a) provides 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 nonAgreement 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 nonAgreement States shall, at least 3 days before

engaging in each such activity, file 4 copies

of NRC Form-241, ‘‘Report of Proposed

Activities in Non-Agreement States,’’ with

the Regional Administrator of the appropriate

NRC regional office.

Contrary to the above,

A. From March 1991 through August 1992,

Bemis Construction, Inc. a licensee of

Kansas, used cesium-137 and americium-241

sealed sources in Oklahoma, a nonAgreement State, without a specific license

issued by the NRC and without filing Form241 with the NRC.

B. From March 1991 through July 1995,

Bemis Construction, Inc. a licensee of

Kansas, stored cesium-137 and americium241 sealed sources in Oklahoma, a nonAgreement State, without a specific license

issued by the NRC and without filing Form241 with the NRC. (01013)

This is a Severity Level III violation

(Supplement VI). Civil Penalty—$2,500

Summary of Bemis’s Request for Mitigation

Bemis responded to the violation in a letter

from Mr. Thomas J. Berscheidt, Attorney At

Law, dated April 17, 1996. Mr. Berscheidt

stated that he represents Bemis and that he

had reviewed the March 19, 1996, letter from

the NRC and the enclosed Notice. Mr.

Berscheidt’s letter stated that there was no

intent to avoid compliance with the

regulations. There was ‘‘simply a

misunderstanding and lack of information

concerning these regulations.’’ Bemis stated

that it will not, now or in the future,

regardless of the oversight or lack of

knowledge, intentionally violate any of the

rules and regulations of the NRC. Further,

Bemis’s response stated that it is recognized

that each party is responsible for being aware

of the rules and regulations, but there are

times when, regardless of the effort and

honest intent of any individual or

corporation, all rules and regulations cannot

be known or at least readily obtained and

usually the awareness factor does not surface

until the violation has been identified. With

the assurance that Bemis is in compliance

and will not violate the rules which were

cited, the licensee requested mitigation of the

civil penalty. The letter also noted that this

was the first time that Bemis has violated

NRC requirements.

NRC Evaluation of Licensee’s Request for

Mitigation

The Kansas license provided that material

‘‘may be used at Railroad & McKinley, Great

Bend, Kansas and at temporary job sites of

the licensee anywhere in the State of Kansas

where the State of Kansas, Department of

Health and Environment maintains

jurisdiction for regulating the use of

radioactive material.’’ This provision does

not authorize operations in the State of

Oklahoma, which is under NRC jurisdiction.

Therefore, it is not clear why there was any

misunderstanding. The fact that Bemis did

not attempt to verify its understanding by

merely telephoning the NRC, or make any

other effort to verify its understanding, was

the basis for NRC’s conclusion that the

violation was the result of, at least, careless

disregard for the involved requirements.

Even in the absence of willfulness, the

NRC considers the failure to obtain

authorization to use byproduct materials in

areas under its jurisdiction to be a matter of

significant regulatory concern. This is

because the failure to obtain NRC

authorization for such activities denies the

NRC the opportunity to assure that the

activities are conducted in compliance with

all NRC requirements. Furthermore, the

failure to obtain authorization resulted in

Bemis’s failure to pay fees in each of the

years that Bemis was in violation. We note

that the civil penalty is approximately the

same amount as the delinquent fees.

Bemis concludes its April 17 letter with its

assurances of compliance (with the cited

requirements), now and in the future, and

respectfully requested that the civil penalty

be reduced. The NRC’s Enforcement Policy

does provide for mitigation of civil penalties

under certain conditions, through the

consideration of the identification and

corrective action factors (reference Section

VI.B.2 of the enforcement policy). The NRC’s

March 19, 1996 letter that accompanied the

Notice described the NRC’s analysis of these

identification and corrective action factors,

and concluded that the base penalty should

be assessed. The licensee’s April 17 letter did

not provide any additional information that

would change the civil penalty assessment.

NRC Conclusion

After consideration of all of the arguments

made by Bemis, the NRC concludes that the

civil penalty that was proposed should not be

mitigated.

[FR Doc. 96–13673 Filed 5–30–96; 8:45 am]

BILLING CODE 7590–01–P

OFFICE OF PERSONNEL

MANAGEMENT

Submission for OMB Review;

Comment Request for Review of an

Expiring Information Collection

Reemployment of Annutants, 5 CFR

837.103

AGENCY: Office of Personnel

Management.

ACTION: Notice.

SUMMARY: In accordance with the

Paperwork Reduction Act of 1995 (Pub.

L. 104–13, May 22, 1995), this notice