EA-03-120 - Daniel Kaidel

July 10, 2003

EA-03-120

Daniel Kaidel
1320 Forest Point Drive
Chesapeake, VA 23320

SUBJECT:

NOTICE OF VIOLATION (NRC INSPECTION REPORT NO. 45-25593-01/02-01 AND OFFICE OF INVESTIGATIONS REPORT NO. 2-2003-002)

Dear Mr. Kaidel:

This refers to the inspection conducted by this office on December 27, 2002, at your office located in Chesapeake, Virginia. The purpose of the inspection was to determine whether activities authorized by the license were conducted safely and in accordance with NRC requirements. Within these areas, the inspection consisted of selected examination of procedures and representative records, and interviews with personnel. Enclosure 2 presents the results of the inspection.

The NRC's Office of Investigations also conducted an investigation to determine if you deliberately violated NRC requirements by receiving, using, or transferring a sealed source gauge containing approximately 150 millicuries of Americium-241. The investigation was completed on April 22, 2003, and did not substantiate that your actions were deliberate. The synopsis to the investigation is included as Enclosure 3.

A preliminary exit briefing was held with you at the completion of the inspection. A final telephone exit briefing was held with you on June 18, 2003. During the telephone exit briefing, you were informed that the NRC was considering escalated enforcement action for an apparent violation of 10 CFR 30.41 involving the transfer of the sealed source gauge to an individual who was not authorized to receive such byproduct material.

Additionally, you were informed that the NRC had sufficient information regarding the apparent violation and your corrective actions to make an enforcement decision without the need for a predecisional enforcement conference or a written response from you. You indicated during the telephone exit briefing that you did not believe that a predecisional enforcement conference or written response was necessary prior to NRC taking enforcement action.

Based on the information developed during the inspection, the NRC has determined that a violation of NRC requirements occurred. The violation is described in the enclosed Notice of Violation (Notice), and the circumstances surrounding it are described in the subject inspection report. The violation involved your failure to adhere to the requirements of 10 CFR 30.41, when on September 26, 2002, you transferred an NDC Model No. 104P portable gauge to a person (a representative of Tamfelt, Inc., a Washington State byproduct material licensee) at a temporary job site in Lynchburg, Virginia, without verification that this person possessed an NRC license or had authorization to receive the gauge.

The failure to verify that the person possessed an NRC license or otherwise had authorization to receive the gauge did not result in any actual safety consequences. Nonetheless, the NRC's regulations for the proper transfer/receipt of licensed byproduct material provide the public with adequate assurance that licensed material is being handled safely by individuals who are properly qualified and authorized. Therefore, this violation has been categorized in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" NUREG-1600, (Enforcement Policy) at Severity Level III.

In accordance with the Enforcement Policy, a civil penalty with a base value of $3,000 is considered for a Severity Level III violation. Because your facility has not been the subject of escalated enforcement action since the last two NRC inspections or within the last two years, the NRC considered whether credit was warranted for corrective action in accordance with the civil penalty assessment process in Section VI.C.2 of the Enforcement Policy. Your corrective actions included improving your understanding of NRC requirements governing the transfer of NRC licensed material and making a commitment to strictly adhere to these requirements in the future. Based on this and the fact that the gauge is now in the possession of the authorized licensee, the NRC has determined that credit was warranted for corrective actions.

Therefore, to encourage prompt and comprehensive correction of violations, and in recognition of the absence of previous escalated enforcement action, I have been authorized, after consultation with the Director, Office of Enforcement, to propose that no civil penalty be assessed in this case. However, you are on notice that significant violations in the future could result in a civil penalty. In addition, issuance of this Severity Level III violation constitutes escalated enforcement action that may subject you to increased inspection effort.

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violations and prevent recurrence, and the date when full compliance was achieved is adequately addressed on the docket in the referenced inspection report and this letter. Therefore, you are not required to respond to this letter unless the description herein does not accurately reflect your corrective actions or your position. In that case, or if you choose to provide additional information, you should follow the instructions specified in the enclosed Notice.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter, its enclosures, and your response (should you choose to provide one) will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public NRC Library. To the extent possible, your response should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the Public without redaction.

If you have any questions about this inspection, please contact Mr. Douglas M. Collins, Director, Division of Nuclear Materials Safety, at (404) 562-4700.

		Sincerely,
		/RA/
		Luis A. Reyes Regional Administrator

Docket No. 030-36011
License No. 45-25593-01

Enclosures:
1. Notice of Violation
2. Inspection Report No. 45-25593-01/02-01
3. OI Report No. 2-2003-002 Synopsis

cc w/encls:
Commonwealth of Virginia
State of North Carolina
State of Washington

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NOTICE OF VIOLATION

Daniel Kaidel Chesapeake, VA

Docket No. 030-36011 License No. 45-25593-01 EA-03-120

During an NRC inspection conducted on December 27, 2002, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions - May 1, 2000," NUREG-1600, (Enforcement Policy), the violation is listed below:

10 CFR 30.41(a) and (b)(5) provide, in part, that no licensee shall transfer byproduct material except to a person authorized to receive such byproduct material under the terms of a specific or general license issued by the Commission or Agreement State.

10 CFR 30.41(c) provides that, prior to transferring byproduct material, the licensee shall verify that the transferee's license authorizes the receipt of the type, form, and quantity of byproduct material to be transferred. 10 CFR 30.41(d) specifies acceptable methods for this verification.

Contrary to the above, on September 26, 2002, the licensee transferred one sealed source that contained approximately 150 millicuries of Americium-241 to a person who was not authorized to receive such byproduct material, and the licensee did not verify, prior to transfer, that the person had a license to receive byproduct material. Specifically, the licensee transferred an NDC Model No. 104P portable gauge to a person at a temporary job site in Lynchburg, Virginia, without verifying that this individual possessed an NRC license or had authorization to receive the gauge.

This is a Severity Level III violation (Supplement IV).

The NRC has concluded that information regarding the reason for the violation, the corrective actions taken and planned to correct the violation and prevent recurrence, and the date when full compliance was achieved is already adequately addressed on the docket in the letter transmitting this Notice of Violation (Notice). However, you are required to submit a written statement or explanation pursuant to 10 CFR 2.201 if the description therein does not accurately reflect your corrective actions or your position. In that case, or if you choose to respond, clearly mark your response as a "Reply to a Notice of Violation," and send it to the U. S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555 with a copy to the Regional Administrator, Region II within 30 days of the date of the letter transmitting this Notice.

If you contest this enforcement action, you should also provide a copy of your response, with the basis for your denial, to the Director, Office of Enforcement, United States Nuclear Regulatory Commission, Washington, DC 20555-0001.

Because any response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 10th day of July 2003