In the Matter of Mark M. Ficek; Order Prohibiting Involvement in NRC-Licensed Activities (Effective Immediately), 55366-55370 [2010-22638]

Download as PDF 55366 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Notices during those portions of the meeting that are open to the public. Detailed procedures for the conduct of and participation in ACRS meetings were published in the Federal Register on October 14, 2009, (74 FR 58268–58269). Detailed meeting agendas and meeting transcripts are available on the NRC Web site at http://www.nrc.gov/readingrm/doc-collections/acrs. Information regarding topics to be discussed, changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained from the Web site cited above or by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with these references if such rescheduling would result in a major inconvenience. Dated: September 2, 2010. Cayetano Santos, Chief, Reactor Safety Branch A, Advisory Committee on Reactor Safeguards. [FR Doc. 2010–22619 Filed 9–9–10; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION srobinson on DSKHWCL6B1PROD with NOTICES Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Planning And Procedures The ACRS Subcommittee on Planning and Procedures will hold a meeting on October 6, 2010, in Room T2B–3, 11545 Rockville Pike, Rockville, Maryland. The entire meeting will be open to public attendance, with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c)(2) and (6) to discuss organizational and personnel matters that relate solely to the internal personnel rules and practices of the ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy. The agenda for the subject meeting shall be as follows: Wednesday, October 6, 2010, 12 p.m.– 1 p.m. The Subcommittee will discuss proposed ACRS activities and related matters. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee. Members of the public desiring to provide oral statements and/or written VerDate Mar<15>2010 16:29 Sep 09, 2010 Jkt 220001 comments should notify the Designated Federal Official (DFO), Cayetano Santos (Telephone 301–415–7270 or E-mail Cayetano.Santos@nrc.gov) five days prior to the meeting, if possible, so that appropriate arrangements can be made. Thirty-five hard copies of each presentation or handout should be provided to the DFO thirty minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the DFO one day before the meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the DFO with a CD containing each presentation at least thirty minutes before the meeting. Electronic recordings will be permitted only during those portions of the meeting that are open to the public. Detailed procedures for the conduct of and participation in ACRS meetings were published in the Federal Register on October 14, 2009, (74 FR 58268–58269). Detailed meeting agendas and meeting transcripts are available on the NRC Web site at http://www.nrc.gov/readingrm/doc-collections/acrs. Information regarding topics to be discussed, changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained from the website cited above or by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with these references if such rescheduling would result in a major inconvenience. Dated: September 1, 2010. Cayetano Santos, Chief, Reactor Safety Branch A, Advisory Committee on Reactor Safeguards. [FR Doc. 2010–22625 Filed 9–9–10; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION [Docket No. 030–20836, License No. 25– 21479–01, NRC–2009–0120, A–10–028] In the Matter of Mark M. Ficek; Order Prohibiting Involvement in NRCLicensed Activities (Effective Immediately) Mr. Mark M. Ficek is the President, owner, and former radiation safety officer (RSO) of Mattingly Testing Services, Inc. (Mattingly or Licensee). Mattingly is the holder of Materials License 25–21479–01 issued by the PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 34, last amended on May 28, 2010, to change the facility’s permanent storage location and name a new radiation safety officer, and due to expire on February 28, 2016. The license authorizes Mattingly to possess and use byproduct material for industrial radiography operations in NRC jurisdiction and in areas of exclusive Federal jurisdiction within Agreement States. The license currently authorizes storage at licensee facilities in Molt and Billings, Montana. The license further authorizes the possession of natural or depleted uranium, as solid metal, for shielding in radiography equipment. On the same date this Order (IA–10–028) is issued to Mr. Ficek, the NRC is also issuing Mattingly an Order Revoking License (Effective Immediately) (EA– 10–100). Currently, both Mr. Ficek (IA–08–055) and Mattingly (EA–08–271) are subject to Confirmatory Orders issued on March 6, 2009, which resulted from alternative dispute resolution (ADR) mediation sessions conducted on February 5, 2009. Those Orders were made immediately effective upon issuance. The ADR mediation session and resultant Confirmatory Orders dispositioned nine violations, five of which were willful, identified during an NRC inspection and an investigation by the NRC’s Office of Investigations. The 2008 investigation identified several violations: (1) A failure to provide complete and accurate information to the NRC; (2) a radiographer assistant performing radiographic operations without a dosimeter; (3) a radiographer assistant using a radiographic exposure device without supervision of a radiographer; (4) failure to secure a radiographic exposure device with a minimum of two independent physical controls; (5) failure to remove a radiographic exposure device from service after it had sustained damage to the locking mechanism; (6) failure to notify the NRC after discovery of damage to a radiographic exposure device; (7) an individual acting as a radiographer assistant without completing a practical examination on the use of the radiography equipment; (8) failure to ensure that all personnel dosimeters were checked for proper response to radiation every 12 months; and (9) failure to have a functional alarm system to allow the licensee to monitor, detect, assess, and respond to unauthorized access to radioactive material when the radioactive material is not under direct observation by Mattingly staff and stored in a portable E:\FR\FM\10SEN1.SGM 10SEN1 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Notices darkroom, as required by Increased Controls Order (EA–05–090). The NRC also found that willfulness was involved in violations 1, 3, 5, 7, and 8, above. The NRC determined that the willful violations listed above were caused by the willful or deliberate actions of the Mattingly president and then RSO, Mr. Mark Ficek. ADR was offered to both Mattingly and Mr. Ficek in order to disposition the nine violations listed above. As a result of ADR with Mr. Ficek, a Confirmatory Order (IA–08– 055) was issued that prohibited Mr. Ficek from engaging in NRC-licensed activities for a period of 2 years. As a result of ADR with the Licensee, a Confirmatory Order (EA–08–271) was issued that required, among other things, that Mattingly retain an expert consultant, to be approved by the NRC, and that the consultant would take specific actions within strict deadlines. Given the number and varied violations described above, the consultant’s actions were to include reviewing and assessing Mattingly’s entire radiation safety program, providing radiation safety training to the Mattingly staff who conduct radiography, and conducting field audits of the staff to identify areas needing additional corrective action. The expert consultant was approved by the NRC on April 3, 2009 (ADAMS Accession No. ML090930661). As a result, the radiation safety procedures assessment was to commence and the radiation safety training for the Mattingly staff was to be completed by May 3, 2009. srobinson on DSKHWCL6B1PROD with NOTICES II On June 30, 2009, the NRC inspected the Licensee’s facility in Molt, Montana, after the NRC, Region IV received a police report stating that the County Sheriff’s office had recovered, from a member of the public, a radiography exposure device Mattingly had lost. The NRC-initiated investigations and inspections identified several violations of regulatory requirements, four of which involve deliberate misconduct by Mr. Ficek, including providing false information to the NRC. As such, Mr. Ficek was found to be in violation of 10 CFR 30.10, ‘‘Deliberate Misconduct,’’ subparts (a)(1) and (a)(2). Specifically, 10 CFR 30.10(a)(1) and (a)(2) require that any licensee or employee of a licensee may not engage in deliberate misconduct that causes a licensee to be in violation of any rule, regulation or order issued by the Commission; or deliberately submit to the NRC information the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC. Since the 2009 Confirmatory VerDate Mar<15>2010 16:29 Sep 09, 2010 Jkt 220001 Orders, the NRC has determined that Mr. Ficek violated 10 CFR 30.10 on four occasions: (1) Mr. Ficek deliberately put Mattingly in violation of Confirmatory Order (EA–08–271) when he committed to Mattingly meeting strict deadlines in the Order, knew what those deadlines were, put himself in charge of ensuring compliance with the Order, but let the Order’s deadlines pass knowing that he was causing Mattingly to violate the Order. Specifically, the Confirmatory Order required Mattingly to select an independent consultant to review Mattingly’s radiation safety program and to conduct training for Mattingly’s staff. The NRC approved the independent consultant on April 3, 2009, which set May 3, 2009, as the date by which the consultant was to commence the assessment of the Mattingly radiation safety program, as well as complete the specified training for Mattingly staff. Testimony provided by the independent consultant to the NRC investigator on June 30, 2009, revealed that the consultant was not aware of the May 3, 2009, deadline. The consultant indicated that Mr. Ficek had directed him to complete his actions by the end of 2009, but he did not at that time have a specific plan to do so, nor was he aware of the deadlines for other actions assigned to the independent consultant in the Confirmatory Order. Moreover, testimony provided by Mr. Ficek and the consultant to the NRC investigator revealed that Mr. Ficek did not give the consultant a copy of the Confirmatory Order that described the required actions and respective deadlines. Mr. Ficek knew the Confirmatory Order’s requirements, but rather than sharing the Confirmatory Order with the consultant or another Mattingly official to ensure compliance, he withheld the information and allowed the Confirmatory Order’s deadlines to pass, putting Mattingly in violation of the Confirmatory Order (EA–08–271). The NRC showed the consultant the Confirmatory Order for the first time during the NRC investigation. Had the NRC not interdicted at that time, implementation of required improvements to the Licensee’s radiation safety program and safety training programs would have been even further delayed, if completed at all. The assessment of the Mattingly radiation programs was not begun until May 30, 2009, and the initial safety training of the Mattingly staff was not completed until July 19, 2009. Finally, Mr. Ficek caused Mattingly to not provide a license amendment to the NRC by May 3, 2009, which put PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 55367 Mattingly in violation of Confirmatory Order (EA–08–271). The license amendment was subsequently submitted on June 30, 2009. (2) From May 13, 2006, through September 9, 2009, Mattingly, as a result of Mr. Ficek’s deliberate inaction, failed to establish and maintain a prearranged plan with the local law enforcement agency to respond to any attempt to gain unauthorized access to radioactive materials, as required by Increased Controls Order (EA–05–090). Specifically, Increased Controls Order, Attachment B, Section IC–2(b), requires that the licensee shall have a prearranged plan with a local law enforcement agency for assistance in response to an actual or attempted theft, sabotage, or diversion of such radioactive material or of the devices, which is consistent in scope and timing with a realistic potential vulnerability of the sources containing such radioactive material. During an NRC inspection of the Mattingly facility in March 2007, Mr. Ficek informed the NRC inspector that he had established a prearranged plan with the Laurel Police Department, when in fact he had not established a prearranged plan with the Laurel Police Department. Upon further investigation the NRC determined that Mattingly’s facility was not located in the Laurel Police Department’s jurisdiction, but instead was located in the Yellowstone County Sheriff’s jurisdiction, and that Mattingly had not established a prearranged plan with the Yellowstone County Sheriff’s Office. Mr. Ficek’s false statement to the NRC inspector—which made clear that Mr. Ficek was aware of the requirement, but had not implemented it—caused the NRC to find that the failure to meet the Increased Controls Order, Appendix B, Section IC–2(b), was deliberate. (3) On March 6, 2007, Mr. Ficek deliberately provided false information to an NRC inspector by stating that he had established a prearranged plan with the local law enforcement agency in accordance with Increased Controls Order (EA–05–090), violating 10 CFR 30.10(a)(2), and putting Mattingly in violation of 10 CFR 30.9, ‘‘Completeness and Accuracy of Information.’’ As described above, Mr. Ficek stated to an NRC inspector that the prearranged plan had been established with the Laurel Police Department in Laurel, Montana. The NRC determined that neither Mr. Ficek nor any Mattingly official had contacted the Laurel Police Department to establish a prearranged response plan. The NRC also determined during its 2009 investigation that the Laurel Police Department had no jurisdiction for the Mattingly facility in Molt, E:\FR\FM\10SEN1.SGM 10SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 55368 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Notices Montana. Further, testimony by a representative of the appropriate local law enforcement agency (Yellowstone County Sheriff’s Office) revealed that no prearranged plan had been established with them, or was sought by Mr. Ficek or any other Mattingly officials. Mr. Ficek’s false statement to the NRC inspector was a significant contributor to the duration of the Increased Controls Order violation since Mattingly did not implement the local law enforcement plan until September 9, 2009, more than 2 years after the NRC inspector initially questioned the Licensee’s actions to establish the prearranged plan, and only after an NRC investigation revealed the violation. (4) On October 22, 2009, while under oath, Mr. Ficek deliberately provided false testimony to the NRC investigator, again violating 10 CFR 30.10(a)(2) and putting Mattingly in violation of 10 CFR 30.9, ‘‘Completeness and Accuracy of Information.’’ Mr. Ficek claimed that two witnesses could confirm that he had conversations during a lunch engagement with the Laurel Police Chief regarding the required local law enforcement agency prearranged plan. Testimony provided by witnesses to the lunch engagement, including the Laurel Police Chief, refuted Mr. Ficek’s statements. Further, in addition to testimony that the Laurel Police Chief recalled no discussion of a response plan, and that the Laurel Police Chief knew that the Laurel Police Department had no jurisdiction to respond to the Mattingly facility, the Laurel Police Chief offered evidence indicating that the lunch engagement at issue took place on July 13, 2003, some 28 months before the Increased Controls Order was issued to Mattingly. Therefore, the NRC found that Mr. Ficek deliberately provided false testimony while under oath when he attempted to cite a lunch engagement with the Laurel Police Chief in 2003 to demonstrate to the NRC that Mattingly was in compliance with the Increased Controls Order. In addition to the above violations of the NRC deliberate misconduct rule, the NRC also found that Mr. Ficek violated provisions of his Confirmatory Order (IA–08–055) on several occasions by continuing to engage in NRC-licensed activities while he was prohibited from doing so. Section V.1 of Confirmatory Order (IA–08–055) specifies that Mr. Ficek is prohibited for 2 years from the date of the Order (March 6, 2009) 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, VerDate Mar<15>2010 16:29 Sep 09, 2010 Jkt 220001 those activities conducted pursuant to the authority granted by 10 CFR 150.20. First, Mr. Ficek continued to engage in Mattingly’s day-to-day licensed activities. A number of Mattingly’s employees informed the NRC investigators that they continued to consult Mr. Ficek for advice about radiation safety when the RSO could not help them. Mr. Ficek also stated that he remained involved in purchasing radiography devices, determining when to ship them back to the manufacturer, and which devices to use on which jobs. All of these activities violated Mr. Ficek’s Confirmatory Order (IA–08– 055). Another example of Mr. Ficek engaging in licensed activities included his supervision of the independent consultant Mattingly was required to hire to improve its radiation safety program and provide training. The Confirmatory Orders to Mattingly (EA– 08–271) and Mr. Ficek (IA–08–055) were issued on the same date. Because Mr. Ficek was prohibited from engaging in licensed activity, he was required to avoid work that involved Mattingly’s compliance with NRC requirements. Nonetheless, Mr. Ficek placed himself in charge of ensuring compliance with Mattingly’s Confirmatory Order (EA– 08–271) without sharing the Mattingly Order with Mattingly’s RSO or the hired consultant, and without telling either of those individuals that he was prohibited from NRC-licensed activities. Mr. Ficek hired the independent consultant, directed the consultant’s activities, and ultimately, deliberately placed Mattingly in violation of the Confirmatory Order. Mr. Ficek’s supervision of the consultant had a direct impact on Mattingly’s radiation safety program and training program for the safe use of the radiographic exposure devices. A third example of Mr. Ficek’s continuing NRC-licensed activity involved his response to the lost radiographic exposure device that gave rise to the July 2009 NRC inspection. The NRC found that immediately after the police response to the Mattingly facility on June 22, 2009, during which the recovered lost radiographic exposure device was returned to Mattingly, Mr. Ficek directed the RSO to go to a temporary job location to conduct radiography operations while Mr. Ficek took on the RSO’s duties to determine the NRC reporting requirements for the lost device. Mr. Ficek then failed to research the requirements, but two days later wrote and signed the NRC-required report, including Mattingly’s corrective actions, after the NRC contacted the RSO. PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 Because Mr. Ficek had not informed the RSO that he was prohibited from NRClicensed activities, the RSO was not aware that Mr. Ficek could not conduct RSO duties. Mr. Ficek’s direction to the RSO to proceed to conduct radiography while he, Mr. Ficek, would research the NRC reporting requirements and develop the lost device report to the NRC violated his Confirmatory Order. Finally, Mr. Ficek filed a radioactive material reciprocity request with the NRC Agreement State, North Dakota, on June 15, 2009, presenting the NRC license and approved procedures to the Agreement State as bases for seeking reciprocity approval for conduct of radiographic operations within North Dakota. Mr. Ficek signed the application representing Mattingly. While Mr. Ficek is not prohibited from working in an Agreement State during his period of prohibition from NRC-licensed activities, he cannot present himself to Agreement States as an NRC license representative when he is prohibited from NRC-licensed activities. III Based on the above, the NRC found that Mr. Mark M. Ficek, the President of Mattingly Testing Services, Inc., has engaged in deliberate misconduct in violation of 10 CFR 30.10(a)(1) that caused the Licensee to be in violation of Confirmatory Order (EA–08–271) and NRC Increased Controls Order (EA–05– 090). Also, the NRC found that Mr. Mark M. Ficek has deliberately provided to an NRC inspector and investigator information that he knew to be incomplete or inaccurate in some respect material to the NRC, in violation of 10 CFR 30.10(a)(2). Further, the NRC found that Mr. Mark M. Ficek continued to engage in NRC-licensed activities after he was prohibited from such activities, in violation of Confirmatory Order (IA–08–055). Given the current violations, Mr. Ficek’s previous deliberate misconduct, including repeatedly providing incomplete and inaccurate information to the NRC, and a number of non-willful violations, the NRC lacks reasonable assurance that the Licensee can safely conduct licensed activities under License 25–21479–01, and so, in a related action, the NRC is issuing an order to the Licensee revoking the NRC license. The NRC must be able to rely on Mattingly, its officers, and its employees to comply with NRC requirements, including the requirement to provide information and maintain records that are complete and accurate in all material respects. Mr. Ficek’s action in causing the Licensee to violate two orders and his E:\FR\FM\10SEN1.SGM 10SEN1 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Notices srobinson on DSKHWCL6B1PROD with NOTICES misrepresentations to the NRC have raised serious doubt as to whether he can be relied upon to comply with NRC requirements to protect the public health and safety and to provide complete and accurate information to the NRC. Consequently, I lack the requisite reasonable assurance that licensed activities can be conducted in compliance with the Commission’s requirements and that the health and safety of the public will be protected if Mr. Mark M. Ficek were permitted at this time to be involved in NRC-licensed activities. Therefore, the public health and safety interest require that Mr. Mark M. Ficek be prohibited from any involvement in NRC-licensed activities for a period of 7 years from the date of this Order. Additionally, for a period of 3-years after the 7-year period of prohibition, Mr. Ficek is required to notify the NRC of his first employment in NRC-licensed activities or his becoming involved in NRC-licensed activities at least 10 days before becoming involved in NRC-licensed activities. Furthermore, pursuant to 10 CFR 2.202(a)(5), I find that the deliberate and repetitive nature of Mr. Ficek’s conduct is such that the public health and safety interest require that this Order be immediately effective. IV 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, 10 CFR 30.10, and 10 CFR 150.20, it is hereby ordered, effective immediately, that: 1. Mr. Mark M. Ficek is prohibited for 7 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. If Mr. Ficek is currently involved with another licensee in NRC-licensed activities, he must immediately cease those activities, inform the NRC of the name, address, and telephone number of the employer, and provide a copy of this Order to the employer. 3. After the 7-year period of prohibition has expired, and for a 3-year period thereafter, Mr. Ficek shall, at least 10 days prior to beginning employment involving NRC-licensed activities or becoming involved in NRClicensed activities, as defined in paragraph IV.1. above, provide notice to the Director, Office of Enforcement, U.S. VerDate Mar<15>2010 16:29 Sep 09, 2010 Jkt 220001 Nuclear Regulatory Commission, Washington, DC 20555, 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, Region IV, may, in writing, relax or rescind any of the above conditions upon demonstration by Mr. Ficek of good cause. Upon issuance of this Order (Effective Immediately), the Order Prohibiting Involvement in NRC– Licensed Activities, IA–08–055, dated March 6, 2009, is rescinded. V In accordance with 10 CFR 2.202, Mr. Ficek must, and any other person adversely affected by this Order may, submit an answer to this Order within 20 days of the date of the Order. In addition, Mr. Ficek and any other person adversely affected by this Order may request a hearing on this Order within 20 days of the date of the Order. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, and include a statement of good cause for the extension. If a hearing is requested by Mr. Ficek or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Ficek, or any other person adversely affected by this Order, may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 55369 accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The EFiling process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at hearing.docket@nrc.gov, or by telephone at (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 proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRCissued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the Secretary has not already established an electronic docket. Information about applying for a digital ID certificate is available on NRC’s public Web site at http:// www.nrc.gov/site-help/e-submittals/ apply-certificates.html. System requirements for accessing the ESubmittal server are detailed in NRC’s ‘‘Guidance for Electronic Submission,’’ which is available on the agency’s public Web site at http://www.nrc.gov/ site-help/e-submittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC’s E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software. If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC’s online, Web-based submission form. In order to serve documents through the Electronic Information Exchange, users will be required to install a Web browser plugin from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC’s public Web site at http://www.nrc.gov/site-help/esubmittals.html. E:\FR\FM\10SEN1.SGM 10SEN1 srobinson on DSKHWCL6B1PROD with NOTICES 55370 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Notices Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. 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/esubmittals.html. A filing is considered complete at the time the documents are submitted through the NRC’s E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing 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 E-Filing system also distributes an email 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 documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/ petition to intervene is filed so that they can 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 by contacting the NRC Meta System Help Desk through the ‘‘Contact Us’’ link located on the NRC Web site at http:// www.nrc.gov/site-help/esubmittals.html, by e-mail at MSHD.Resource@nrc.gov, or by a tollfree call at (866) 672–7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays. Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, 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: VerDate Mar<15>2010 16:29 Sep 09, 2010 Jkt 220001 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 firstclass 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. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists. 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, or the 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, unless an NRC regulation or other law requires submission of such information. 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 submission. If a person other than the 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). 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 IV 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 IV shall be final when the extension expires if a hearing request has not been received. An answer or a request for hearing shall not stay the immediate effectiveness of this order. Dated at Rockville, Maryland, this 2nd day of September 2010. For the Nuclear Regulatory Commission. Roy P. Zimmerman, Director, Office of Enforcement. [FR Doc. 2010–22638 Filed 9–9–10; 8:45 am] BILLING CODE 7590–01–P PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 SECURITIES AND EXCHANGE COMMISSION Submission for OMB Review; Comment Request Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Investor Education and Advocacy, Washington, DC 20549–0213. Extension: Rule 6h–1, SEC File No. 270–497, OMB Control No. 3235–0555. Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission (‘‘Commission’’) has submitted to the Office of Management and Budget a request for approval of extension of the previously approved collection of information provided for in Rule 6h–1 (17 CFR 240.6h–1) under the Securities Exchange Act of 1934, as amended (‘‘Act’’) (15 U.S.C. 78a et seq.). Section 6(h) of the Act (15 U.S.C. 78f(h)) requires national securities exchanges and national securities associations that trade security futures products to establish listing standards that, among other things, require that: (i) Trading in such products not be readily susceptible to price manipulation; and (ii) the market on which the security futures product trades has in place procedures to coordinate trading halts with the listing market for the security or securities underlying the security futures product. Rule 6h–1 implements these statutory requirements and requires that (1) the final settlement price for each cash-settled security futures product fairly reflect the opening price of the underlying security or securities, and (2) the exchanges and associations trading security futures products halt trading in any security futures product for as long as trading in the underlying security, or trading in 50% of the underlying securities, is halted on the listing market. It is estimated that approximately 18 respondents, consisting of 14 national securities exchanges and 4 national securities exchanges notice-registered pursuant to Section 6(g) of the Act (15 U.S.C. 78f(g)), will incur an average burden of 10 hours per year to comply with this rule, for a total burden of 180 hours. At an average cost per hour of approximately $316, the resultant total cost of compliance for the respondents is $56,880 per year (18 respondents × 10 hours/respondent × $316/hour = $56,880). Compliance with Rule 6h–1 is mandatory. Any listing standards established pursuant to Rule 6h–1 E:\FR\FM\10SEN1.SGM 10SEN1

Agencies

[Federal Register Volume 75, Number 175 (Friday, September 10, 2010)]
[Notices]
[Pages 55366-55370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22638]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-20836, License No. 25-21479-01, NRC-2009-0120, A-10-
028]


In the Matter of Mark M. Ficek; Order Prohibiting Involvement in 
NRC-Licensed Activities (Effective Immediately)

    Mr. Mark M. Ficek is the President, owner, and former radiation 
safety officer (RSO) of Mattingly Testing Services, Inc. (Mattingly or 
Licensee). Mattingly is the holder of Materials License 25-21479-01 
issued by the Nuclear Regulatory Commission (NRC or Commission) 
pursuant to 10 CFR Part 34, last amended on May 28, 2010, to change the 
facility's permanent storage location and name a new radiation safety 
officer, and due to expire on February 28, 2016. The license authorizes 
Mattingly to possess and use byproduct material for industrial 
radiography operations in NRC jurisdiction and in areas of exclusive 
Federal jurisdiction within Agreement States. The license currently 
authorizes storage at licensee facilities in Molt and Billings, 
Montana. The license further authorizes the possession of natural or 
depleted uranium, as solid metal, for shielding in radiography 
equipment. On the same date this Order (IA-10-028) is issued to Mr. 
Ficek, the NRC is also issuing Mattingly an Order Revoking License 
(Effective Immediately) (EA-10-100).
    Currently, both Mr. Ficek (IA-08-055) and Mattingly (EA-08-271) are 
subject to Confirmatory Orders issued on March 6, 2009, which resulted 
from alternative dispute resolution (ADR) mediation sessions conducted 
on February 5, 2009. Those Orders were made immediately effective upon 
issuance. The ADR mediation session and resultant Confirmatory Orders 
dispositioned nine violations, five of which were willful, identified 
during an NRC inspection and an investigation by the NRC's Office of 
Investigations. The 2008 investigation identified several violations: 
(1) A failure to provide complete and accurate information to the NRC; 
(2) a radiographer assistant performing radiographic operations without 
a dosimeter; (3) a radiographer assistant using a radiographic exposure 
device without supervision of a radiographer; (4) failure to secure a 
radiographic exposure device with a minimum of two independent physical 
controls; (5) failure to remove a radiographic exposure device from 
service after it had sustained damage to the locking mechanism; (6) 
failure to notify the NRC after discovery of damage to a radiographic 
exposure device; (7) an individual acting as a radiographer assistant 
without completing a practical examination on the use of the 
radiography equipment; (8) failure to ensure that all personnel 
dosimeters were checked for proper response to radiation every 12 
months; and (9) failure to have a functional alarm system to allow the 
licensee to monitor, detect, assess, and respond to unauthorized access 
to radioactive material when the radioactive material is not under 
direct observation by Mattingly staff and stored in a portable

[[Page 55367]]

darkroom, as required by Increased Controls Order (EA-05-090). The NRC 
also found that willfulness was involved in violations 1, 3, 5, 7, and 
8, above.
    The NRC determined that the willful violations listed above were 
caused by the willful or deliberate actions of the Mattingly president 
and then RSO, Mr. Mark Ficek. ADR was offered to both Mattingly and Mr. 
Ficek in order to disposition the nine violations listed above. As a 
result of ADR with Mr. Ficek, a Confirmatory Order (IA-08-055) was 
issued that prohibited Mr. Ficek from engaging in NRC-licensed 
activities for a period of 2 years.
    As a result of ADR with the Licensee, a Confirmatory Order (EA-08-
271) was issued that required, among other things, that Mattingly 
retain an expert consultant, to be approved by the NRC, and that the 
consultant would take specific actions within strict deadlines. Given 
the number and varied violations described above, the consultant's 
actions were to include reviewing and assessing Mattingly's entire 
radiation safety program, providing radiation safety training to the 
Mattingly staff who conduct radiography, and conducting field audits of 
the staff to identify areas needing additional corrective action. The 
expert consultant was approved by the NRC on April 3, 2009 (ADAMS 
Accession No. ML090930661). As a result, the radiation safety 
procedures assessment was to commence and the radiation safety training 
for the Mattingly staff was to be completed by May 3, 2009.

II

    On June 30, 2009, the NRC inspected the Licensee's facility in 
Molt, Montana, after the NRC, Region IV received a police report 
stating that the County Sheriff's office had recovered, from a member 
of the public, a radiography exposure device Mattingly had lost. The 
NRC-initiated investigations and inspections identified several 
violations of regulatory requirements, four of which involve deliberate 
misconduct by Mr. Ficek, including providing false information to the 
NRC. As such, Mr. Ficek was found to be in violation of 10 CFR 30.10, 
``Deliberate Misconduct,'' subparts (a)(1) and (a)(2). Specifically, 10 
CFR 30.10(a)(1) and (a)(2) require that any licensee or employee of a 
licensee may not engage in deliberate misconduct that causes a licensee 
to be in violation of any rule, regulation or order issued by the 
Commission; or deliberately submit to the NRC information the person 
submitting the information knows to be incomplete or inaccurate in some 
respect material to the NRC. Since the 2009 Confirmatory Orders, the 
NRC has determined that Mr. Ficek violated 10 CFR 30.10 on four 
occasions:
    (1) Mr. Ficek deliberately put Mattingly in violation of 
Confirmatory Order (EA-08-271) when he committed to Mattingly meeting 
strict deadlines in the Order, knew what those deadlines were, put 
himself in charge of ensuring compliance with the Order, but let the 
Order's deadlines pass knowing that he was causing Mattingly to violate 
the Order. Specifically, the Confirmatory Order required Mattingly to 
select an independent consultant to review Mattingly's radiation safety 
program and to conduct training for Mattingly's staff. The NRC approved 
the independent consultant on April 3, 2009, which set May 3, 2009, as 
the date by which the consultant was to commence the assessment of the 
Mattingly radiation safety program, as well as complete the specified 
training for Mattingly staff. Testimony provided by the independent 
consultant to the NRC investigator on June 30, 2009, revealed that the 
consultant was not aware of the May 3, 2009, deadline. The consultant 
indicated that Mr. Ficek had directed him to complete his actions by 
the end of 2009, but he did not at that time have a specific plan to do 
so, nor was he aware of the deadlines for other actions assigned to the 
independent consultant in the Confirmatory Order. Moreover, testimony 
provided by Mr. Ficek and the consultant to the NRC investigator 
revealed that Mr. Ficek did not give the consultant a copy of the 
Confirmatory Order that described the required actions and respective 
deadlines. Mr. Ficek knew the Confirmatory Order's requirements, but 
rather than sharing the Confirmatory Order with the consultant or 
another Mattingly official to ensure compliance, he withheld the 
information and allowed the Confirmatory Order's deadlines to pass, 
putting Mattingly in violation of the Confirmatory Order (EA-08-271). 
The NRC showed the consultant the Confirmatory Order for the first time 
during the NRC investigation. Had the NRC not interdicted at that time, 
implementation of required improvements to the Licensee's radiation 
safety program and safety training programs would have been even 
further delayed, if completed at all. The assessment of the Mattingly 
radiation programs was not begun until May 30, 2009, and the initial 
safety training of the Mattingly staff was not completed until July 19, 
2009. Finally, Mr. Ficek caused Mattingly to not provide a license 
amendment to the NRC by May 3, 2009, which put Mattingly in violation 
of Confirmatory Order (EA-08-271). The license amendment was 
subsequently submitted on June 30, 2009.
    (2) From May 13, 2006, through September 9, 2009, Mattingly, as a 
result of Mr. Ficek's deliberate inaction, failed to establish and 
maintain a prearranged plan with the local law enforcement agency to 
respond to any attempt to gain unauthorized access to radioactive 
materials, as required by Increased Controls Order (EA-05-090). 
Specifically, Increased Controls Order, Attachment B, Section IC-2(b), 
requires that the licensee shall have a prearranged plan with a local 
law enforcement agency for assistance in response to an actual or 
attempted theft, sabotage, or diversion of such radioactive material or 
of the devices, which is consistent in scope and timing with a 
realistic potential vulnerability of the sources containing such 
radioactive material. During an NRC inspection of the Mattingly 
facility in March 2007, Mr. Ficek informed the NRC inspector that he 
had established a prearranged plan with the Laurel Police Department, 
when in fact he had not established a prearranged plan with the Laurel 
Police Department. Upon further investigation the NRC determined that 
Mattingly's facility was not located in the Laurel Police Department's 
jurisdiction, but instead was located in the Yellowstone County 
Sheriff's jurisdiction, and that Mattingly had not established a 
prearranged plan with the Yellowstone County Sheriff's Office. Mr. 
Ficek's false statement to the NRC inspector--which made clear that Mr. 
Ficek was aware of the requirement, but had not implemented it--caused 
the NRC to find that the failure to meet the Increased Controls Order, 
Appendix B, Section IC-2(b), was deliberate.
    (3) On March 6, 2007, Mr. Ficek deliberately provided false 
information to an NRC inspector by stating that he had established a 
prearranged plan with the local law enforcement agency in accordance 
with Increased Controls Order (EA-05-090), violating 10 CFR 
30.10(a)(2), and putting Mattingly in violation of 10 CFR 30.9, 
``Completeness and Accuracy of Information.'' As described above, Mr. 
Ficek stated to an NRC inspector that the prearranged plan had been 
established with the Laurel Police Department in Laurel, Montana. The 
NRC determined that neither Mr. Ficek nor any Mattingly official had 
contacted the Laurel Police Department to establish a prearranged 
response plan. The NRC also determined during its 2009 investigation 
that the Laurel Police Department had no jurisdiction for the Mattingly 
facility in Molt,

[[Page 55368]]

Montana. Further, testimony by a representative of the appropriate 
local law enforcement agency (Yellowstone County Sheriff's Office) 
revealed that no prearranged plan had been established with them, or 
was sought by Mr. Ficek or any other Mattingly officials. Mr. Ficek's 
false statement to the NRC inspector was a significant contributor to 
the duration of the Increased Controls Order violation since Mattingly 
did not implement the local law enforcement plan until September 9, 
2009, more than 2 years after the NRC inspector initially questioned 
the Licensee's actions to establish the prearranged plan, and only 
after an NRC investigation revealed the violation.
    (4) On October 22, 2009, while under oath, Mr. Ficek deliberately 
provided false testimony to the NRC investigator, again violating 10 
CFR 30.10(a)(2) and putting Mattingly in violation of 10 CFR 30.9, 
``Completeness and Accuracy of Information.'' Mr. Ficek claimed that 
two witnesses could confirm that he had conversations during a lunch 
engagement with the Laurel Police Chief regarding the required local 
law enforcement agency prearranged plan. Testimony provided by 
witnesses to the lunch engagement, including the Laurel Police Chief, 
refuted Mr. Ficek's statements. Further, in addition to testimony that 
the Laurel Police Chief recalled no discussion of a response plan, and 
that the Laurel Police Chief knew that the Laurel Police Department had 
no jurisdiction to respond to the Mattingly facility, the Laurel Police 
Chief offered evidence indicating that the lunch engagement at issue 
took place on July 13, 2003, some 28 months before the Increased 
Controls Order was issued to Mattingly. Therefore, the NRC found that 
Mr. Ficek deliberately provided false testimony while under oath when 
he attempted to cite a lunch engagement with the Laurel Police Chief in 
2003 to demonstrate to the NRC that Mattingly was in compliance with 
the Increased Controls Order.
    In addition to the above violations of the NRC deliberate 
misconduct rule, the NRC also found that Mr. Ficek violated provisions 
of his Confirmatory Order (IA-08-055) on several occasions by 
continuing to engage in NRC-licensed activities while he was prohibited 
from doing so. Section V.1 of Confirmatory Order (IA-08-055) specifies 
that Mr. Ficek is prohibited for 2 years from the date of the Order 
(March 6, 2009) 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 conducted pursuant to the authority 
granted by 10 CFR 150.20.
    First, Mr. Ficek continued to engage in Mattingly's day-to-day 
licensed activities. A number of Mattingly's employees informed the NRC 
investigators that they continued to consult Mr. Ficek for advice about 
radiation safety when the RSO could not help them. Mr. Ficek also 
stated that he remained involved in purchasing radiography devices, 
determining when to ship them back to the manufacturer, and which 
devices to use on which jobs. All of these activities violated Mr. 
Ficek's Confirmatory Order (IA-08-055).
    Another example of Mr. Ficek engaging in licensed activities 
included his supervision of the independent consultant Mattingly was 
required to hire to improve its radiation safety program and provide 
training. The Confirmatory Orders to Mattingly (EA-08-271) and Mr. 
Ficek (IA-08-055) were issued on the same date. Because Mr. Ficek was 
prohibited from engaging in licensed activity, he was required to avoid 
work that involved Mattingly's compliance with NRC requirements. 
Nonetheless, Mr. Ficek placed himself in charge of ensuring compliance 
with Mattingly's Confirmatory Order (EA-08-271) without sharing the 
Mattingly Order with Mattingly's RSO or the hired consultant, and 
without telling either of those individuals that he was prohibited from 
NRC-licensed activities. Mr. Ficek hired the independent consultant, 
directed the consultant's activities, and ultimately, deliberately 
placed Mattingly in violation of the Confirmatory Order. Mr. Ficek's 
supervision of the consultant had a direct impact on Mattingly's 
radiation safety program and training program for the safe use of the 
radiographic exposure devices.
    A third example of Mr. Ficek's continuing NRC-licensed activity 
involved his response to the lost radiographic exposure device that 
gave rise to the July 2009 NRC inspection. The NRC found that 
immediately after the police response to the Mattingly facility on June 
22, 2009, during which the recovered lost radiographic exposure device 
was returned to Mattingly, Mr. Ficek directed the RSO to go to a 
temporary job location to conduct radiography operations while Mr. 
Ficek took on the RSO's duties to determine the NRC reporting 
requirements for the lost device. Mr. Ficek then failed to research the 
requirements, but two days later wrote and signed the NRC-required 
report, including Mattingly's corrective actions, after the NRC 
contacted the RSO. Because Mr. Ficek had not informed the RSO that he 
was prohibited from NRC-licensed activities, the RSO was not aware that 
Mr. Ficek could not conduct RSO duties. Mr. Ficek's direction to the 
RSO to proceed to conduct radiography while he, Mr. Ficek, would 
research the NRC reporting requirements and develop the lost device 
report to the NRC violated his Confirmatory Order.
    Finally, Mr. Ficek filed a radioactive material reciprocity request 
with the NRC Agreement State, North Dakota, on June 15, 2009, 
presenting the NRC license and approved procedures to the Agreement 
State as bases for seeking reciprocity approval for conduct of 
radiographic operations within North Dakota. Mr. Ficek signed the 
application representing Mattingly. While Mr. Ficek is not prohibited 
from working in an Agreement State during his period of prohibition 
from NRC-licensed activities, he cannot present himself to Agreement 
States as an NRC license representative when he is prohibited from NRC-
licensed activities.

III

    Based on the above, the NRC found that Mr. Mark M. Ficek, the 
President of Mattingly Testing Services, Inc., has engaged in 
deliberate misconduct in violation of 10 CFR 30.10(a)(1) that caused 
the Licensee to be in violation of Confirmatory Order (EA-08-271) and 
NRC Increased Controls Order (EA-05-090). Also, the NRC found that Mr. 
Mark M. Ficek has deliberately provided to an NRC inspector and 
investigator information that he knew to be incomplete or inaccurate in 
some respect material to the NRC, in violation of 10 CFR 30.10(a)(2). 
Further, the NRC found that Mr. Mark M. Ficek continued to engage in 
NRC-licensed activities after he was prohibited from such activities, 
in violation of Confirmatory Order (IA-08-055).
    Given the current violations, Mr. Ficek's previous deliberate 
misconduct, including repeatedly providing incomplete and inaccurate 
information to the NRC, and a number of non-willful violations, the NRC 
lacks reasonable assurance that the Licensee can safely conduct 
licensed activities under License 25-21479-01, and so, in a related 
action, the NRC is issuing an order to the Licensee revoking the NRC 
license. The NRC must be able to rely on Mattingly, its officers, and 
its employees to comply with NRC requirements, including the 
requirement to provide information and maintain records that are 
complete and accurate in all material respects.
    Mr. Ficek's action in causing the Licensee to violate two orders 
and his

[[Page 55369]]

misrepresentations to the NRC have raised serious doubt as to whether 
he can be relied upon to comply with NRC requirements to protect the 
public health and safety and to provide complete and accurate 
information to the NRC.
    Consequently, I lack the requisite reasonable assurance that 
licensed activities can be conducted in compliance with the 
Commission's requirements and that the health and safety of the public 
will be protected if Mr. Mark M. Ficek were permitted at this time to 
be involved in NRC-licensed activities. Therefore, the public health 
and safety interest require that Mr. Mark M. Ficek be prohibited from 
any involvement in NRC-licensed activities for a period of 7 years from 
the date of this Order. Additionally, for a period of 3-years after the 
7-year period of prohibition, Mr. Ficek is required to notify the NRC 
of his first employment in NRC-licensed activities or his becoming 
involved in NRC-licensed activities at least 10 days before becoming 
involved in NRC-licensed activities. Furthermore, pursuant to 10 CFR 
2.202(a)(5), I find that the deliberate and repetitive nature of Mr. 
Ficek's conduct is such that the public health and safety interest 
require that this Order be immediately effective.

IV

    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, 10 CFR 30.10, and 10 CFR 150.20, it is 
hereby ordered, effective immediately, that:
    1. Mr. Mark M. Ficek is prohibited for 7 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. If Mr. Ficek is currently involved with another licensee in NRC-
licensed activities, he must immediately cease those activities, inform 
the NRC of the name, address, and telephone number of the employer, and 
provide a copy of this Order to the employer.
    3. After the 7-year period of prohibition has expired, and for a 3-
year period thereafter, Mr. Ficek shall, at least 10 days prior to 
beginning employment involving NRC-licensed activities or becoming 
involved in NRC-licensed activities, as defined in paragraph IV.1. 
above, provide notice to the Director, Office of Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555, 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, Region IV, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. Ficek of 
good cause. Upon issuance of this Order (Effective Immediately), the 
Order Prohibiting Involvement in NRC-Licensed Activities, IA-08-055, 
dated March 6, 2009, is rescinded.

V

    In accordance with 10 CFR 2.202, Mr. Ficek must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order within 20 days of the date of the Order. In addition, Mr. Ficek 
and any other person adversely affected by this Order may request a 
hearing on this Order within 20 days of the date of the Order. Where 
good cause is shown, consideration will be given to extending the time 
to answer or request a hearing. A request for extension of time must be 
directed to the Director, Office of Enforcement, U.S. Nuclear 
Regulatory Commission, and include a statement of good cause for the 
extension.
    If a hearing is requested by Mr. Ficek or a person whose interest 
is adversely affected, the Commission will issue an Order designating 
the time and place of any hearings. If a hearing is held, the issue to 
be considered at such hearing shall be whether this Order should be 
sustained. Pursuant to 10 CFR 2.202(c)(2)(i), Mr. Ficek, or any other 
person adversely affected by this Order, may, in addition to demanding 
a hearing, at the time the answer is filed or sooner, move the 
presiding officer to set aside the immediate effectiveness of the Order 
on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the Internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
hearing.docket@nrc.gov, or by telephone at (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 proceeding in which it is participating; and 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the hearing in this 
proceeding if the Secretary has not already established an electronic 
docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange, users will 
be required to install a Web browser plug-in from the NRC Web site. 
Further information on the Web-based submission form, including the 
installation of the Web browser plug-in, is available on the NRC's 
public Web site at http://www.nrc.gov/site-help/e-submittals.html.

[[Page 55370]]

    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing 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 
E-Filing 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 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can 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 by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
MSHD.Resource@nrc.gov, or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, 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. A presiding officer, 
having granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    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, or the 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, unless an NRC regulation or other law requires submission of 
such information. 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 submission.
    If a person other than the 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).
    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 IV 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 IV shall be final when 
the extension expires if a hearing request has not been received. An 
answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    Dated at Rockville, Maryland, this 2nd day of September 2010.

    For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
 Director, Office of Enforcement.
[FR Doc. 2010-22638 Filed 9-9-10; 8:45 am]
BILLING CODE 7590-01-P