[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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