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###### Nuclear Regulatory Commission

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

## 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-                          ( print 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                     *HEARINGDOCKET@NRC.GOV*                    , 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                     *MSHD.Resource@nrc.gov*.                

                    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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