[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Notices]
[Pages 11772-11773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5998]


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NUCLEAR REGULATORY COMMISSION

[IA-08-055; NRC-2009-0120]


In the Matter of Mr. Mark M. Ficek; Confirmatory Order (Effective 
Immediately)

I

    Mr. Mark M. Ficek is the President of Mattingly Testing Services, 
Inc., (Mattingly) in Molt, Montana. Mattingly is the holder of 
Materials License No. 25-21479-01 issued by the Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Part 34, last amended 
on September 11, 2008, and due to expire on February 28, 2016. The 
license authorizes Mattingly to possess and use byproduct material for 
industrial radiographic operations in NRC jurisdiction, and in areas of 
exclusive Federal jurisdiction within Agreement States. Mattingly's 
main office is located in Molt, Montana.
    This Confirmatory Order is the result of an agreement reached 
during an alternative dispute resolution (ADR) mediation session 
conducted on February 5, 2009, at the NRC Region IV offices in 
Arlington, Texas.

II

    On November 5, 2007, the NRC Office of Investigations began an 
investigation (Office of Investigations Case No. 4-2008-009) to 
determine, in part, if Mr. Ficek violated 10 CFR 30.10. Based on the 
evidence developed during its investigation, one apparent violation was 
identified. The results of the investigation, completed on September 
12, 2008, were sent to Mr. Ficek in a letter dated December 15, 2008. 
In response to NRC's December 15, 2008, letter, Mr. Ficek requested ADR 
to resolve this issue.
    On February 5, 2009, the NRC and Mr. Ficek met in an ADR session 
mediated by a professional mediator, arranged through Cornell 
University's Institute on Conflict Resolution. ADR is a process in 
which a neutral mediator with no decisionmaking authority assists the 
parties in reaching an agreement on resolving any differences regarding 
the dispute. This confirmatory order is issued pursuant to the 
agreement reached during the ADR process.

III

    In response to the NRC's offer, Mr. Ficek requested use of the NRC 
ADR process to resolve differences he had with the NRC. During that ADR 
session, a preliminary settlement agreement was reached. The elements 
of the agreement consisted of the following:
    Pursuant to the Nuclear Regulatory Commission Office of 
Enforcement's ADR process, the following are the terms and conditions 
agreed upon in principle by Mr. Mark M. Ficek, and the NRC relating to 
NRC Investigation Report No. 4-2008-009 (IA-08-055) characterized by 
the NRC to Mr. Ficek in a letter dated December 15, 2008.

Whereas, NRC's investigation completed September 12, 2008, identified 
one apparent violation of 10 CFR 30.10;
Whereas, NRC acknowledges that this is the first apparent violation 
identified by the NRC concerning Mr. Ficek during his tenure as RSO and 
President of Mattingly Testing Services, Inc;
Whereas, Mr. Ficek does not agree that a violation of 10 CFR 30.10 
occurred;
Whereas, Mr. Ficek and the NRC agree to disagree on whether a violation 
of 10 CFR 30.10 occurred;
Whereas, these terms and conditions shall not be binding on either 
party until memorialized in a confirmatory order issued by the Nuclear 
Regulatory Commission to Mr. Ficek relating to this matter;

    Therefore, the parties agree to the following terms and conditions:
    1. Mr. Mark Ficek agrees to refrain from engaging in licensed 
activities for a period of two years. Therefore, Mr. Mark Ficek is 
prohibited for two 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 pursuant to the authority granted by 10 CFR 
150.20.
    2. For a period of one year after the two year period of 
prohibition has expired, Mr. Ficek shall, within 20 days of his 
becoming involved in NRC-licensed activities, as defined in Paragraph 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 the entity where he 
is, or will be, involved in the NRC-licensed activities. In the 
notification, Mr. Ficek shall include a statement of his commitment to 
compliance with regulatory requirements and the basis why the 
Commission should have confidence that he will now comply with 
applicable NRC requirements.
    3. The NRC agrees not to pursue any further enforcement action 
against Mr. Ficek in connection with the apparent violation identified 
in the NRC's December 15, 2008, letter to him.
    On March 5, 2009, Mr. Ficek consented to issuing this Order with 
the commitments, as described in Section V below. Mr. Ficek further 
agreed that this Order is to be effective upon issuance and that he has 
waived his right to a hearing.

IV

    Since Mr. Ficek has agreed to take additional actions to address 
NRC concerns, as set forth in Item III above, the NRC has concluded 
that its concerns can be resolved through issuance of this Order.
    I find that Mr. Ficek's commitments as set forth in Section V are 
acceptable and necessary and conclude that with these commitments the 
public health and safety are reasonably assured. In view of the 
foregoing, I have determined that public health and safety require that 
Mr. Ficek's commitments be confirmed by this Order. Based on the above 
and Mr. Ficek's consent, this Order is immediately effective upon 
issuance.

V

    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 Parts 30 and 34, it is hereby 
ordered, effective immediately, that:
    1. Mr. Mark Ficek agrees to refrain from engaging in licensed 
activities for a period of two years. Therefore, Mr. Mark Ficek is 
prohibited for two 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 pursuant to the authority granted by 10 CFR 
150.20.
    2. For a period of one year after the two year period of 
prohibition has expired, Mr. Ficek shall, within 20 days of his 
becoming involved in NRC-

[[Page 11773]]

licensed activities, as defined in Paragraph 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 the entity where he is, or will be, 
involved in the NRC-licensed activities. In the notification, Mr. Ficek 
shall include a statement of his commitment to compliance with 
regulatory requirements and the basis why the Commission should have 
confidence that he will now comply with applicable NRC requirements.
    The Regional Administrator, NRC Region IV, may, in writing, relax 
or rescind any of the above conditions upon demonstration by Mr. Ficek 
of good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Ficek, may request a hearing within 20 days of its issuance. 
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 
directed to the Director, Office of Enforcement, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, and include a 
statement of good cause for the extension.
    A request for a hearing must be filed in accordance with the NRC E-
Filing rule, which the NRC promulgated in August 2007, 72 FR 49139 
(Aug. 28, 2007). The E-Filing process requires participants to submit 
and serve documents over the internet or, in some cases, to mail copies 
on electronic optical storage media. Participants may not submit paper 
copies of their filings unless they seek a waiver in accordance with 
the procedures described below.
    To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
[email protected], or by calling (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 NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms Viewer \TM\ to access the Electronic 
Information Exchange (EIE), a component of the E-Filing system. The 
Workplace Forms Viewer \TM\ is free and is available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information 
about applying for a digital ID certificate also is available on NRC's 
public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance available on the 
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. 
A filing is considered complete at the time the filer submits its 
document through EIE. To be timely, electronic filings must be 
submitted to the EIE 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 e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
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 document 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 is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The electronic filing Help Desk can be contacted 
by telephone at 1-866-672-7640 or by e-mail at [email protected].
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, 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.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested to not include personal 
privacy information, such as social security numbers, home addresses, 
or home phone numbers in their filings. 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 are requested not to include copyrighted materials in 
their works.
    If a person other than Mr. Ficek 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 the hearing is requested by 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 Confirmatory 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 V 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 V shall be final when the extension expires if a 
hearing request has not been received. A request for hearing shall not 
stay the immediate effectiveness of this order.

    Dated this 6th day of March 2009.

    For the Nuclear Regulatory Commission.
Elmo E. Collins,
Regional Administrator.
[FR Doc. E9-5998 Filed 3-18-09; 8:45 am]
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