In the Matter of Mr. Douglas Poling; Confirmatory Order (Effective Immediately), 48782-48783 [E9-23038]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 74, Number 184 (Thursday, September 24, 2009)]
[Notices]
[Pages 48782-48783]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23038]



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NUCLEAR REGULATORY COMMISSION

[NRC-2009-0421; IA-09-021]


In the Matter of Mr. Douglas Poling; Confirmatory Order 
(Effective Immediately)

I

    Mr. Douglas Poling held the positions of President and Chief 
Executive Officer for Magna Chek, Inc. Magna Chek is the holder of 
Materials License No. 21-19111-02 issued by the U.S. Nuclear Regulatory 
Commission (NRC or Commission) pursuant to 10 CFR Part 30 on May 20, 
1985. The license currently authorizes Magna Chek to store radioactive 
sources previously used in radiography operations at its permanent 
radiography facility in Warren, Michigan. Mr. Poling was named as 
Radiation Safety Officer on the license in 2008.
    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on August 4, 2009.

II

    On May 1, 2008, the NRC conducted an onsite inspection at the Magna 
Chek storage location in Warren, Michigan. The purpose of the 
inspection was to review the corrective actions taken by Magna Chek in 
response to a Notice of Violation issued on December 19, 2007 (EA-09-
260 and EA-09-265). As a result of the inspection observations, the NRC 
Office of Investigations (OI) initiated an investigation (OI Case No. 
3-2008-017). Based on the evidence developed during the inspection and 
investigation, the NRC identified that Mr. Poling's deliberate actions 
caused the Magna Chek licensee to be in violation of NRC requirements. 
The violations are described in the Appendix to this Order.
    The results of the investigation were sent to Mr. Douglas Poling in 
a letter dated April 1, 2009. This letter offered Mr. Poling the 
opportunity to either participate in ADR mediation or to attend a 
Predecisional Enforcement Conference. In response to the NRC's offer, 
Mr. Poling requested use of the NRC's ADR process to resolve the 
differences he had with the NRC. On May 18, 2009, the NRC and Mr. 
Poling agreed to mediate. On August 4, 2009, the NRC and Mr. Poling 
participated in an ADR session mediated by a professional mediator, 
arranged through Cornell University's Institute on Conflict Resolution. 
As used by the NRC, ADR is a process in which a neutral mediator with 
no decision-making 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

    During the August 4, 2009, ADR session, a preliminary settlement 
agreement was reached. The elements of the agreement consisted of the 
following:
    1. Mr. Douglas Poling agrees to not be involved in any NRC-licensed 
activities for a period of five years from the date of the Order.
    2. Mr. Douglas Poling agrees to provide a copy of the Order to each 
NRC Agreement State within which he plans to conduct activities 
involving radioactive materials.
    3. Mr. Douglas Poling agrees to not be involved in any decisions, 
financial or otherwise, regarding the handling, storage, security, or 
disposal of the radioactive materials possessed by Magna Chek for a 
period of five years from the date of the Order.
    4. Mr. Douglas Poling agrees that he will not access the 
radioactive materials possessed by Magna Chek for a period of five 
years from the date of the Order.
    5. Mr. Douglas Poling agrees to provide all copies of the keys 
providing access to the radioactive material, all copies of any 
documents related to the radioactive material or its storage (both 
electronic and paper), and any other items related to the radioactive 
material to the Magna Chek Chief Financial Officer within one day of 
the date of the Order.
    6. Mr. Douglas Poling agrees to step down as the Radiation Safety 
Officer as of the date of the Order.
    7. The NRC agrees to not pursue any further enforcement action in 
connection with the NRC's April 1, 2009, letter to Mr. Douglas Poling. 
This does not prohibit the NRC from taking an enforcement action, in 
accordance with the NRC Enforcement Policy, if Mr. Poling commits a 
similar violation in the future or violates the Order.
    On August 24, 2009, Mr. Douglas Poling consented to issuing this 
Order with the commitments, as described in Section V below. Mr. Poling 
further agreed that this Order is to be effective upon issuance and 
that he has waived his right to a hearing.

IV

    Since Mr. Douglas Poling 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. Poling'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. Poling's commitments be confirmed by this Order. Based on the 
above, and Mr. Poling'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 Part 30, it is hereby ordered, 
effective immediately:
    1. Mr. Douglas Poling shall not be involved in any NRC-licensed 
activities for a period of five years from the date of the Order. Mr. 
Poling further shall notify the NRC within one week of the first time 
he becomes involved in NRC-licensed activities after the five years has 
expired.
    2. Mr. Douglas Poling shall provide a copy of the Order to each NRC 
Agreement State should he plan to conduct activities involving 
radioactive materials, including serving as a Radiation Safety Officer, 
prior to beginning any work and extending for a period of five years 
from the date of the Order.
    3. Mr. Douglas Poling shall not be involved in any decisions, 
financial or otherwise, regarding the handling, storage, security, or 
disposal of the radioactive materials possessed by Magna Chek for a 
period of five years from the date of the Order.
    4. Mr. Douglas Poling shall not access the radioactive materials 
possessed by Magna Chek for a period of five years from the date of the 
Order.
    5. Mr. Douglas Poling shall provide all copies of the keys 
providing access to the radioactive material, all copies of any 
documents related to the radioactive material or its storage (both 
electronic and paper), and any other items related to the radioactive 
material to either the Magna Chek Chief Financial Officer or to someone 
designated by the Chief Financial Officer as being trustworthy and 
reliable, within one day of the date of the Order.
    6. Mr. Douglas Poling shall step down as the Radiation Safety 
Officer as of the date of the Order.
    The Regional Administrator, NRC Region III, may, in writing, relax 
or rescind any of the above conditions

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upon demonstration by Mr. Poling of good cause.

VI

    Any person adversely affected by this Confirmatory Order, other 
than Mr. Douglas Poling, may request a hearing within 20 days of the 
Order's publication in the Federal Register. 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 the August 28, 2007, Federal 
Register (72 FR 49139). 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 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 ViewerTM to access the 
Electronic Information Exchange (EIE), a component of the E-Filing 
system. The Workplace Forms ViewerTM is free and is 
available at https://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 https://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 https://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 using the agency's adjudicatory E-
Filing system may seek assistance through the ``Contact Us'' link 
located on the NRC Web site at https://www.nrc.gov/site-help/e-submittals.html or by calling the NRC Meta-System Help Desk, which is 
available between 8 a.m. and 8 p.m., Eastern Time, Monday through 
Friday, excluding government holidays. The Meta-System 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 
https://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order or policy of the Commission, an Atomic Safety and Licensing 
Board, or a Presiding Officer. Participants are requested not to 
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. Douglas Poling 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 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 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 16th day of September 2009.

    For the U.S. Nuclear Regulatory Commission.
Mark A. Satorius,
Regional Administrator, Region III.
[FR Doc. E9-23038 Filed 9-23-09; 8:45 am]
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