[Federal Register Volume 65, Number 236 (Thursday, December 7, 2000)]
[Notices]
[Pages 76670-76672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31156]


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NUCLEAR REGULATORY COMMISSION


In the Matter of Mr. William Kimbley Mrs. Joan Kimbley; Order 
Prohibiting Involvement in NRC-Licensed Activities (Effective 
Immediately)

I

    Mr. William Kimbley and Mrs. Joan Kimbley were previously officers 
of Midwest Testing, Inc., an entity that was a holder of NRC License 
No. 13-24866-02 issued by the Nuclear Regulatory Commission pursuant to 
10 CFR Part 30. The license authorized the possession and use cesium-
137 and americium-241 as sealed sources in moisture density gauges. The 
license was issued on August 19, 1992, and was terminated on June 12, 
1995.

[[Page 76671]]

    On June 12, 1995, a Confirmatory Order was issued prohibiting Mr. 
William Kimbley and Mrs. Joan Kimbley from engaging in licensed 
activities for five years from June 2, 1995. The Order was issued due 
to deliberate violations of NRC requirements involving: The failure to 
provide personnel monitoring devices to individuals using licensed 
material; the failure to perform leak tests of nuclear moisture density 
gauges; the storage of licensed material at an unauthorized location; 
the failure to request a license amendment to name a new Radiation 
Protection Officer; and, the use of nuclear moisture density gauges 
with an expired license.

II

    In 1998, the NRC, during a review of retired license files, 
identified that NRC License No. 13-24866-01, issued to Midwest Testing, 
Inc., contained inadequate documentation regarding the disposition of 
three nuclear moisture density gauges. License No. 13-24866-01 was 
superseded with License No. 13-24866-02. License No. 13-24866-02 was 
terminated on June 12, 1995.
    A review of records indicated that during a November 18, 1994, 
telephone conversation with NRC staff, Mr. William Kimbley stated that 
two of his gauges were gone, sold to other authorized users. However, 
on November 23, 1994, Mr. Kimbley stated that he was unable to sell the 
gauges but would transfer the gauges to an authorized user. On December 
14, 1998, NRC staff contacted Mr. William Kimbley to determine the 
final disposition of the nuclear gauges. During this telephone 
conversation, Mr. William Kimbley stated that Midwest Testing, Inc. was 
no longer in business and that one gauge was at a repair shop and the 
other two gauges were in California being refurbished. A subsequent NRC 
review of the license files identified the companies that received the 
gauges. The first company stated that they received one gauge, which 
was held by them for nonpayment of repair service fees and subsequently 
was sold to another company licensed to possess nuclear moisture 
density gauges. A second company stated that they received the other 
two gauges for storage on December 1, 1994, and returned the gauges to 
Mr. William Kimbley on January 15, 1997. It was then determined that a 
third company received these two gauges from Mr. William Kimbley for 
refurbishment on May 14, 1997, and returned both gauges to Mr. Kimbley 
on June 16, 1997. Due to the uncertainty of the whereabouts of these 
two gauges, a special inspection was conducted January 5, 1999.
    During this special inspection, Mr. William Kimbley stated that he 
did not have the gauges. After additional discussion with Mr. William 
Kimbley, the NRC found the two nuclear moisture density gauges at the 
residence of Mr. William Kimbley and Mrs. Joan Kimbley. It was verified 
by the NRC on January 8, 1999, that these two gauges were transferred 
to a licensee authorized to possess the gauges. NRC concluded that Mr. 
William Kimbley and Mrs. Joan Kimbley apparently had possessed these 
gauges from January 15, 1997, to May 14, 1997, and from June 16, 1997 
to January 7, 1999, without a valid license and contrary to the June 
12, 1995, Confirmatory Order.
    The NRC Office of Investigations initiated an investigation on 
January 5, 1999, to determine whether Mr. William Kimbley and Mrs. Joan 
Kimbley deliberately possessed licensed material in violation of NRC 
requirements and the June 12, 1995, Confirmatory Order. The 
investigation also reviewed whether Mr. William Kimbley made false 
statements to NRC staff. As a result of the investigation, it was 
determined that Mr. William Kimbley and Mrs. Joan Kimbley deliberately 
possessed licensed material in violation of NRC requirements and the 
June 12, 1995, Confirmatory Order. In addition, the investigation 
determined that Mr. William Kimbley deliberately provided inaccurate 
information to NRC staff on November 18, 1994, December 14, 1998, and 
January 5, 1999, when he denied he had possession of the nuclear 
moisture density gauges.
    A predecisional enforcement conference was conducted with Mr. 
William Kimbley on September 8, 2000, to discuss the possession of 
nuclear moisture density gauges in apparent deliberate violation of NRC 
requirements and the June 12, 1995, Confirmatory Order. Mr. William 
Kimbley stated the gauges had been stored at a licensed facility and 
were subsequently shipped to the gauge manufacturer for refurbishment. 
Mr. William Kimbley stated that the manufacturer returned the gauges to 
him without informing him that they were being returned. Mr. Kimbley 
stated he had difficulty selling the gauges due to their age and 
subsequently moved them to his home where they were found by the NRC. 
Mr. Kimbley stated he knew the gauges were required to be stored in a 
licensed facility and had tried to keep them there. Mr. Kimbley also 
stated that he did not consider whether possessing the gauges violated 
the June 12, 1995, Confirmatory Order.

III

    Based on the above, it appears that Mr. William Kimbley and Mrs. 
Joan Kimbley deliberately violated Section 81 of the Atomic Energy Act 
of 1954, as amended (Act); 10 CFR 30.3; and the June 12, 1995, 
Confirmatory Order. Section 81 of the Act and 10 CFR 30.3 require, in 
part, that no person possess byproduct material except as authorized in 
a general or specific license. Specifically, the NRC has concluded that 
Mr. William Kimbley and Mrs. Joan Kimbley deliberately violated NRC 
requirements and the June 12, 1995, Confirmatory Order since they 
knowingly possessed two nuclear moisture density gauges containing 
byproduct material without an NRC license between January 15, 1997, and 
May 14, 1997, and between June 16, 1997 and January 7, 1999. In 
addition, it appears that Mr. William Kimbley deliberately violated 10 
CFR 30.10. 10 CFR 30.10 requires, in part, that a person may not 
deliberately submit to NRC information that the person knows to be 
incomplete or inaccurate. Mr. William Kimbley deliberately violated 10 
CFR 30.10 on November 18, 1994, December 14, 1998, and January 5, 1999, 
when he denied possessing nuclear moisture density gauges. 
Consequently, in light of the nature of the violations, the length of 
time the violations existed, and the deliberate nature of the 
violations, 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. William Kimbley and Mrs. Joan Kimbley were permitted 
at this time to be involved in NRC-licensed activities. Therefore, the 
public health, safety and interest require that Mr. William Kimbley and 
Mrs. Joan Kimbley be prohibited from any involvement in NRC-licensed 
activities for a period of five years from the date of this Order. 
Additionally, Mr. William Kimbley and Mrs. Joan Kimbley are required to 
notify the NRC of their first employment in NRC-licensed activities for 
a period of five years following the prohibition period. Furthermore, 
pursuant to 10 CFR 2.202, I find that the significance of Mr. William 
Kimbley's and Mrs. Joan Kimbley's conduct described above is such that 
the public health, safety and 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,

[[Page 76672]]

and the Commission's regulations in 10 CFR 2.202, 10 CFR 30.3, 10 CFR 
30.10, and 10 CFR 150.20, It Is Hereby Ordered, Effective Immediately, 
That:
    1. Mr. William Kimbley and Mrs. Joan Kimbley are prohibited for 
five years from the date of this Order from engaging in NRC-licensed 
activities and from possessing licensable byproduct materials. 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. William Kimbley and Mrs. Joan Kimbley are currently 
involved with another licensee in NRC-licensed activities, they must 
immediately cease those activities, and inform the NRC of the name, 
address and telephone number of the employer, and provide a copy of 
this Order to the employer.
    3. For a period of five years after the five-year period of 
prohibition has expired, Mr. William Kimbley and Mrs. Joan Kimbley 
shall, within 20 days of their acceptance of their first employment 
offer involving NRC-licensed activities or their 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 they are, or will be, 
involved in the NRC-licensed activities. In the notification, Mr. 
William Kimbley and Mrs. Joan Kimbley shall include a statement of 
their commitment to compliance with regulatory requirements and the 
basis why the Commission should have confidence that they will now 
comply with applicable NRC requirements.
    The Director, Office of Enforcement, may, in writing, relax or 
rescind any of the above conditions upon demonstration by Mr. William 
Kimbley and Mrs. Joan Kimbley of good cause.

V

    In accordance with 10 CFR 2.202, Mr. William Kimbley and Mrs. Joan 
Kimbley must, and any other person adversely affected by this Order 
may, submit an answer to this Order, and may request a hearing on this 
Order, within 20 days of the date of this Order. 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 made in writing to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, and include a statement of good cause for the 
extension. The answer may consent to this Order. Unless the answer 
consents to this Order, the answer shall, in writing and under oath or 
affirmation, specifically admit or deny each allegation or charge made 
in this Order and shall set forth the matters of fact and law on which 
Mr. William Kimbley and Mrs. Joan Kimbley or other person adversely 
affected relies and the reasons as to why the Order should not have 
been issued. Any answer or request for a hearing shall be submitted to 
the Secretary, U.S. Nuclear Regulatory Commission, Attn: Rulemakings 
and Adjudications Staff, Washington, DC 20555. Copies also shall be 
sent to the Director, Office of Enforcement, U.S. Nuclear Regulatory 
Commission, Washington, DC 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 Mr. William Kimbley and Mrs. Joan Kimbley if the answer 
or hearing request is by a person other than Mr. William Kimbley or 
Mrs. Joan Kimbley. If a person other than Mr. William Kimbley or Mrs. 
Joan Kimbley requests a hearing, that person shall set forth with 
particularity the manner in which his or her 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 Mr. William Kimbley or Mrs. Joan 
Kimbley or 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 Order should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), Mr. William Kimbley and Mrs. 
Joan Kimbley, 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.
    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 of 
this Order without further order or proceedings. If an extension of 
time for requesting a hearing has been approved, the provisions 
specified in Section 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 this 28th day of November, 2000.

    For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Deputy Executive Director for Materials, Research and State Programs.
[FR Doc. 00-31156 Filed 12-6-00; 8:45 am]
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