[Federal Register Volume 60, Number 117 (Monday, June 19, 1995)]
[Notices]
[Pages 32036-32038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14876]



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NUCLEAR REGULATORY COMMISSION
[Docket No. 030-32827 License No. 13-24866-02 EA 94-240 IA 95-015 IA 
95-016]


Midwest Testing, Inc. Indianapolis, Indiana, Mr. William G. 
Kimbley and Ms. Joan Kimbley; Confirmatory Order

I

    Midwest Testing, Inc. (Licensee) is holder of NRC License No. 13-
24866-02 (License) issued by the Nuclear Regulatory Commission (NRC or 
Commission) pursuant to 10 CFR part 30. The License authorized the 
Licensee to possess and use cesium-137 and americium-241 as sealed 
sources in moisture/density gauges. The License was issued on August 
19, 1992, and is being terminated by Amendment No. 1, which is being 
issued on the date of this Order.

II

    On July 27, 1993, a routine inspection of licensed activities was 
conducted at Midwest Testing, Inc. (Licensee) by NRC Region III. During 
the inspection the inspector identified that licensee management had 
allowed workers to operate moisture density gauges without personnel 
monitoring devices (film badges) and that required leak tests of the 
gauges had not been performed.
    The NRC Office of Investigations (OI) conducted an investigation to 
determine [[Page 32037]] whether willful violations of NRC requirements 
had occurred. Based on the NRC inspection and OI investigation, it 
appears that Mr. William G. Kimbley, owner of Midwest Testing, 
deliberately violated NRC requirements by:
    (1) Allowing operators to use moisture density gauges without 
personnel monitoring devices between December 24, 1991, and August 25, 
1993, in violation of Condition 18.A of License No. 13-24866-01 
(expired on March 31, 1992) and Condition 20.A of License No. 13-24866-
02 (issued on August 19, 1992);
    (2) Not performing leak tests of two moisture density gauges 
between August 19, 1992, and July 31, 1993, in violation of Condition 
13.A of License No. 13-24866-02;
    (3) Not requesting a license amendment to name a new Radiation 
Protection Officer, in violation of Condition 11 of License No. 13-
24866-02, when the individual named on the License left Midwest Testing 
in October 1993;
    (4) Storing licensed material at an unauthorized location since 
March 1994 in violation of Condition 10 of License No. 13-24866-02 and 
10 CFR 30.34(c); and
    (5) Allowing moisture density gauges to be used between April 1, 
1992, and August 19, 1992, with an expired license in violation of 10 
CFR 30.3 and 10 CFR 30.36(c)(1) (i) and (iii).
    In addition, it appears that Ms. Joan Kimbley, General Manager and 
Treasurer of Midwest Testing, Inc., deliberately violated Items (1), 
(2), and (5) above. These actions appear to have been a result of 
Midwest Testing, Inc. financial constraints, inexperience of the 
General Manager and, in general, a lack of appreciation on the part of 
the Owner and the General Manager of the regulatory significance and 
consequences of the violations.
    A Confirmatory Action Letter was issued to the Licensee on March 
21, 1994, confirming that the Licensee would secure its moisture 
density gauges in locked storage until the Licensee: (1) Designated a 
Radiation Protection Officer, (2) obtained NRC approval via a license 
amendment for its designated Radiation Protection Officer and its 
current moisture density gauge storage location, (3) demonstrated that 
all its moisture density gauges were appropriately tested for leakage, 
and (4) demonstrated that personnel radiation monitoring devices were 
provided for those persons designated to use moisture density gauges. 
The Licensee did not use its moisture density gauges after issuance of 
the Confirmatory Action Letter.
    Subsequently, an Order Suspending License (Effective Immediately) 
was issued to the Licensee on August 26, 1994, for nonpayment of fees, 
which required: (1) The Licensee to suspend NRC licensed activities and 
dispose of its licensed material; and (2) NRC termination of License 
No. 13-24866-02 following disposal of the licensed material. The 
Licensee disposed of its licensed material in December 1994. NRC Region 
III verified that the licensed material was properly transferred to 
authorized recipients.
III

    A transcribed enforcement conference was conducted between the NRC 
and the Licensee on March 15, 1995, to discuss the apparent violations, 
their causes and safety significance. Mr. Kimbley stated during the 
enforcement conference, ``And the question about would we ever pursue 
an NRC license again, the answer to that is no. If there is any way I 
can give you assurance of that, I'll be glad to do that.'' Ms. Kimbley 
stated during the Enforcement Conference, ``Like we stated earlier, we 
don't intend to continue with any licensed material in the future.''
    Further, in a telephone conversation on May 2, 1995, with Mr. Paul 
Pelke, NRC Region III, Mr. and Ms. Kimbley agreed to the provisions and 
to the issuance of this Order to resolve all matters pending between 
them. Specifically, Mr. Kimbley agreed, for a period of five years from 
the date he signs this Confirmatory Order, that Mr. Kimbley, Midwest 
Testing, Inc., or any successor entity wherein Mr. Kimbley is an 
authorized user, radiation safety officer, owner, an officer, or a 
controlling stockholder, will not apply to the NRC for a new license, 
nor shall Mr. Kimbley, Midwest Testing, Inc., or a successor entity, as 
described above, engage in licensed activities within the jurisdiction 
of the NRC for that same period of time. Ms. Kimbley agreed, for a 
period of five years from the date she signs this Confirmatory Order, 
that Ms. Kimbley, Midwest Testing, Inc., or any successor entity 
wherein Ms. Kimbley is an authorized user, radiation safety officer, 
owner, an officer, or a controlling stockholder, will not apply to the 
NRC for a new license, nor shall Ms. Kimbley, Midwest Testing, Inc., or 
a successor entity, as described above, engage in licensed activities 
within the jurisdiction of the NRC for the same period of time.
    I find that the Licensee's commitments as stated in the May 2, 1995 
conversation with Paul Pelke, NRC Region III, 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 the public health and safety require that the 
Licensee's commitments be confirmed by this Order.

IV

    Accordingly, pursuant to sections 81, 161b, 161i, 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 that:
    1. For a period of five years from the date Mr. William G. Kimbley 
signs this Confirmatory Order, Mr. Kimbley, Midwest Testing, Inc., or 
any successor entity wherein Mr. Kimbley is an authorized user, 
radiation safety officer, owner, an officer, or a controlling 
stockholder will not apply to the NRC for a new license, nor shall Mr. 
Kimbley, Midwest Testing, Inc., or a successor entity, as described 
above, engage in licensed activities within the jurisdiction of the NRC 
for that same period of time.
    2. For a period of five years from the date Ms. Joan Kimbley signs 
this Confirmatory Order, Ms. Kimbley, Midwest Testing, Inc., or any 
successor entity wherein Ms. Kimbley is an authorized user, radiation 
safety officer, owner, an officer, or a controlling stockholder, will 
not apply to the NRC for a new license, nor shall Ms. Kimbley, Midwest 
Testing, Inc., or a successor entity, as described above, engage in 
licensed activities within the jurisdiction of the NRC for that same 
period of time.
    3. Mr. Kimbley, Ms. Kimbley, Midwest Testing, Inc., or any 
successor entity, as described above, waive the right to contest this 
Order in any manner, including requesting a hearing on this Order.
    The Regional Administrator, NRC Region III, may relax or rescind, 
in writing, any of the above conditions upon a showing by the Licensee, 
Mr. William G. Kimbley, or Ms. Joan Kimbley of good cause.

V

    Any person adversely affected by this Confirmatory Order, other 
than the Licensee, Mr. William G. Kimbley, and Ms. Joan Kimbley may 
request a hearing within 20 days of its issuance. Any request for a 
hearing shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Chief, Docketing and Service Section, Washington, 
D.C. 20555. Copies also shall be sent to the Director, Office of 
[[Page 32038]] Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, D.C. 20555, to the Assistant General Counsel for Hearings 
and Enforcement at the same address, to the Regional Administrator, NRC 
Region III, 801 Warrenville Road, Lisle, Illinois 60532, and to the 
Licensee. If such a person 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 2.714(d).
    If a 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, the provisions specified 
in Section IV above shall be final 20 days from the date of this Order 
without further order or proceedings.

    This Order was consented to:
    For the Licensee, William G. Kimbley, and Joan Kimbley
    By: William G. Kimbley,
    Dated: June 2, 1995.
    By: Joan Kimbley.
    Dated: June 2, 1995.

    For the Nuclear Regulatory Commission.
    Order Dated: June 12, 1995, Rockville, Maryland.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 95-14876 Filed 6-16-95; 8:45 am]
BILLING CODE 7590-01-M