May 19, 2004

Mr. Richard A. Ratliff, PE, LMP, Chief

Bureau of Radiation Control

Texas Department of Health

1100 West 49th Street

Austin TX 78756-3189

Dear Mr. Ratliff:

We have reviewed the final changes to the Texas Regulations for Control of Radiation,

25 Texas Administrative Code, §289.260(f)(2), “Licensing of Uranium Recovery and Byproduct

Material Disposal Facilities”, received by our office on April 21, 2004 and with additional

electronic material arriving on April 29, 2004. We also reviewed our February 12, 2002 letter to

you that contained our comments on the proposed version of this rule. These regulations were

reviewed by comparison to the equivalent NRC rules in 10 CFR Part 40. We discussed our

review of the regulations with Ms. Cindy Cardwell, of your staff, on May 10, 2004.

As a result of our review, we have one comment as enclosed. Please provide an amended final

version of your rules showing the location of any changes made, by the State, in response to

our comment. If there are any comments which the State believes are in error, the State should

identify the section of their regulations that meet the designated compatibility category. Please

note that we have limited our review to regulations required for compatibility and/or health and

safety. We have determined that if these regulations are adopted, incorporating our comments

and without significant change, they would meet the compatibility and health and safety

categories established in the Office of State and Tribal Programs (STP) Procedure SA-200.

The SRS Data Sheet summarizes our knowledge of the status of other Texas regulations. 

Please let us know if you note any inaccuracies or have any comments on the information

contained in the SRS Data Sheet. This letter, including the SRS Data Sheet is posted on the

STP website: Http://www.hrsd.ornl.gov/nrc/rulemaking.htm.

If you have any questions regarding the comments, the compatibility and health categories, or

any of the NRC regulations used in the review, please contact me or John Zabko of my staff at

301-415-2308 or JGZ@NRC.GOV.

Sincerely,

\RA By K.N.Schneider For\

Josephine M. Piccone, Deputy Director

Office of State and Tribal Programs

Enclosure(s):

As stated
May 19, 2004

Mr. Richard A. Ratliff, PE, LMP, Chief

Bureau of Radiation Control

Texas Department of Health

1100 West 49th Street

Austin TX 78756-3189

Dear Mr. Ratliff:

We have reviewed the final changes to the Texas Regulations for Control of Radiation,

25 Texas Administrative Code, §289.260(f)(2), “Licensing of Uranium Recovery and Byproduct

Material Disposal Facilities”, received by our office on April 21, 2004 and with additional

electronic material arriving on April 29, 2004. We also reviewed our February 12, 2002 letter to

you that contained our comments on the proposed version of this rule. These regulations were

reviewed by comparison to the equivalent NRC rules in 10 CFR Part 40. We discussed our

review of the regulations with Ms. Cindy Cardwell, of your staff, on May 10, 2004.

As a result of our review, we have one comment as enclosed. Please provide an amended final

version of your rules showing the location of any changes made, by the State, in response to

our comment. If there are any comments which the State believes are in error, the State should

identify the section of their regulations that meet the designated compatibility category. Please

note that we have limited our review to regulations required for compatibility and/or health and

safety. We have determined that if these regulations are adopted, incorporating our comments

and without significant change, they would meet the compatibility and health and safety

categories established in the Office of State and Tribal Programs (STP) Procedure SA-200.

The SRS Data Sheet summarizes our knowledge of the status of other Texas regulations. 

Please let us know if you note any inaccuracies or have any comments on the information

contained in the SRS Data Sheet. This letter, including the SRS Data Sheet is posted on the

STP website: Http://www.hrsd.ornl.gov/nrc/rulemaking.htm.

If you have any questions regarding the comments, the compatibility and health categories, or

any of the NRC regulations used in the review, please contact me or John Zabko of my staff at

301-415-2308 or JGZ@NRC.GOV.

Sincerely,

\RA By K.N.Schneider For\

Josephine M. Piccone, Deputy Director

Office of State and Tribal Programs

Enclosure(s): As stated

Distribution:

DIR RF (4-108) DCD (SP08) PDR (YES_) VCampbell, RSAO

Busilton PLarkins, ASPO 

Texas File Response to Incoming Document: ML041210250

DOCUMENT NAME: C:\ORPCheckout\FileNET\ML041410551.wpd

To receive a copy of this document, indicate in the box: “C” = Copy w/o attach/encl “E” = Copy w/ attach/encl “N” = No copy

OFFICE STP OGC STP:DD

NAME JZabko STreby KNSchneider for JMPiccone

DATE 5/10/04* 5/19/04* 5/19/04* 

ML041410551 OFFICIAL RECORD COPY
COMMENTS ON PROPOSED TEXAS REGULATIONS

AGAINST COMPATIBILITY AND HEALTH AND SAFETY CATEGORIES

State

Regulation

NRC

Regulation

RATS

ID

Category Subject and Comments

289.260 (f)(2) 40.32(e) None H&S General requirements for

issuance of specific licenses

When the State incorporated the

comment from the February 12,

2002 NRC letter, the State

produced a contradicting paragraph

concerning the requirements for the

commencement of construction of a

uranium mill. In the same

paragraph the State has used both

“shall not commence construction”

and “ major construction is

prohibited” without defining what

“major construction” is or if it differs

from “construction”

The State is urged to use 40.32 (e)

as a template to construct the

wording of this section and to meet

the H&S compatibility designation.

40.32 is shown below with the

optional areas shown in bold.

40.32 (e)

In the case of an application for a license for a uranium enrichment facility, or for a license to

possess and use source and byproduct material for uranium milling, production of uranium

hexafluoride, or for the conduct of any other activity which the Commission determines will

significantly affect the quality of the environment, the Director of Nuclear Material Safety and

Safeguards or his designee, before commencement of construction of the plant or facility in

which the activity will be conducted, on the basis of information filed and evaluations made

pursuant to subpart A of part 51 of this chapter, has concluded, after weighing the

environmental, economic, technical and other benefits against environmental costs and

considering available alternatives, that the action called for is the issuance of the proposed

license, with any appropriate conditions to protect environmental values. Commencement of

construction prior to this conclusion is grounds for denial of a license to possess and use source

and byproduct material in the plant or facility. As used in this paragraph, the term

"commencement of construction" means any clearing of land, excavation, or other substantial

action that would adversely affect the environment of a site. The term does not mean site

exploration, roads necessary for site exploration, borings to determine foundation conditions, or

other preconstruction monitoring or testing to establish background information related to the

suitability of the site or the protection of environmental values.
STATE REGULATION STATUS

State: Texas[No amendment reviewed} Tracking Ticket 

Date: May 19, 2

NRC Chronology Identification FR Notice

(State Due Date)

RATS ID Proposed (P) 

Final (F)1

Rule / ML #5

NRC Review / Y, N2 / Date /

ML #5

Safety Requirements for Radiographic Equipment-Part 34 55 FR 843; (1/10/94) 1991-1 P Y 1/12/99ASNT Certification of Radiographers-Part 34 56 FR 11504; (none) 1991-2 Standards for Protection Against Radiation-Part 20 56 FR 23360; 56 FR 61352;

57 FR 38588; 57 FR 57877;58 FR 67657; 59 FR 41641;60 FR 20183; (1/1/94)

1991-3 F N

11/6/97

Notification of Incidents-Parts 20, 30, 31, 34, 39, 40, 70 56 FR 64980; (10/15/94) 1991-4 P N

11/21/97

Quality Management Program and Misadministrations-Part 35 56 FR 34104; (1/27/95) 1992-1Eliminating the Recordkeeping Requirements for Departures fromManufacturer’s Instructions-Parts 30, 35

57 FR 45566; (none) 1992-2 

Decommissioning Recordkeeping and License Termination: Documentation Additions [Restricted areas and spill sites]-Parts 30, 40 

58 FR 39628; (10/25/96) 1993-1 P N

11/21/97

Licensing and Radiation Safety Requirements for Irradiators-Part 36 58 FR 7715; (7/1/96) 1993-2 P Y

3/13/96

Definition of Land Disposal and Waste Site QA Program-Part 61 58 FR 33886; (7/22/96) 1993-3 Self-Guarantee as an Additional Financial Mechanism-Parts 30, 40, 70 58 FR 68726; 59 FR 1618

(none)

1994-1 P N

11/21/97

Uranium Mill Tailings Regulations: Conforming NRC Requirements to EPAStandards-Part 40

59 FR 28220; (7/1/97) 1994-2 P N

11/21/97

Timeliness in Decommissioning Material Facilities-Parts 30, 40, 70 59 FR 36026; (8/15/97) 1994-3 P N

11/21/97

Preparation, Transfer for Commercial Distribution, and Use of ByproductMaterial for Medical Use-Parts 30, 32, 35

59 FR 61767; 59 FR 6524360 FR 322; (1/1/98)

1995-1 F N

3/17/99

Frequency of Medical Examinations for Use of Respiratory ProtectionEquipment-Part 20 

60 FR 7900; (3/13/98) 1995-2
NRC Chronology Identification FR Notice

(State Due Date)

RATS ID Proposed (P) 

Final (F)1

Rule / ML #5

NRC Review / Y, N2 / Date /

ML #5

Low-Level Waste Shipment Manifest Information and Reporting-Parts 20,61

60 FR 15649; 60 FR 25983(3/1/98)

1995-3 P N

11/8/96

Performance Requirements for Radiography Equipment-Part 34 60 FR 28323; (6/30/98) 1995-4 P Y 1/22/99Radiation Protection Requirements: Amended Definitions and CriteriaParts 19, 20 60 FR 36038; (8/14/98) 1995-5 F N3/17/99

Clarification of Decommissioning Funding Requirements-Parts 30, 40, 70 60 FR 38235; (11/24/98) 1995-6 P N 11/21/97Medical Administration of Radiation and Radioactive Materials-Parts 20, 35 60 FR 48623; (10/20/98) 1995-710 CFR Part 71: Compatibility with the International Atomic EnergyAgency-Part 71

60 FR 50248; 61 FR 28724(4/1/99)

1996-1 P Y 11/21/97

One Time Extension of Certain Byproduct, Source and Special NuclearMaterials Licenses-Parts 30, 40, 70

61 FR 1109; (none) 1996-2 

Termination or Transfer of Licensed Activities: RecordkeepingRequirements-Parts 20, 30, 40, 61, 70

61 FR 24669; (6/17/99) 1996-3 P (Part 30) N 11/8/96 

Resolution of Dual Regulation of Airborne Effluents of RadioactiveMaterials; Clean Air Act-Part 20

61 FR 65120; (1/9/00) 1997-1 F N 7/7/00 

Recognition of Agreement State Licenses in Areas Under ExclusiveFederal Jurisdiction Within an Agreement State-Part 150

62 FR 1662; (2/27/00) 1997-2

Criteria for the Release of Individuals Administered Radioactive MaterialParts 20, 35 62 FR 4120; (5/29/00) 1997-3 F N 7/7/00 Fissile Material Shipments and Exemptions-Part 71 62 FR 5907; (none) 1997-4 Licenses for Industrial Radiography and Radiation Safety Requirements forIndustrial Radiography Operations-Parts 30, 34, 71, 150

62 FR 28947; (6/27/00) 1997-5 F N 7/7/00 

Radiological Criteria for License Termination-Parts 20, 30, 40, 70 62 FR 39057; (8/20/00) 1997-6 F N 7/7/00 Exempt Distribution of a Radioactive Drug Containing One Microcurie ofCarbon-14 Urea-Part 30 

62 FR 63634; (1/02/01) 1997-7

Deliberate Misconduct by Unlicensed Persons-Parts 30, 40, 61, 70, 71,150

63 FR 1890; 63 FR 13773(2/12/01)

1998-1

Self-Guarantee of Decommissioning Funding by Nonprofit and Non-BondIssuing Licensees- Parts 30, 40, 70 63 FR 29535; (none) 1998-2 License Term for Medical Use Licenses-Part 35 63 FR 31604; (none) 1998-3 
NRC Chronology Identification FR Notice

(State Due Date)

RATS ID Proposed (P) 

Final (F)1

Rule / ML #5

NRC Review / Y, N2 / Date /

ML #5

1. Or other generic Legally Binding Requirements.2. (Y/N) Y means “Yes,” there are comments in the review letter that the State needs to address. 

N means “No,” there are no comments in the review letter.

3. Not required means these regulations are not required for purposes of compatibility.4. A State need not adopt a specific regulation if the State has no licensees that would be subject to that regulation. See: “Final Policy Statem

Compatibility of Agreement State Programs,” III.1. Time Frame for Adoption of Compatible State Regulations, p. 6, SECY-95-112, May 3, 

5. ADAMS ML Number

Licenses for Industrial Radiography and Radiation Safety Requirements forIndustrial Radiographic Operations-Part 34

63 FR 37059; (7/9/01) 1998-4 P Y 1/12/99

Minor Corrections, Clarifying Changes, and a Minor PolicyChange-Parts 20, 35, 36

63 FR 39477; 63 FR 45393(10/26/01)

1998-5 F N 7/7/00 

Transfer for Disposal and Manifests: Minor Technical ConformingAmendment-Part 20

63 FR 50127; (11/20/01) 1998-6 F N 7/7/00 

Radiological Criteria for License Termination of Uranium RecoveryFacilities-Part 40

64 FR 17506; (6/11/02) 1999-1

Requirements for Those Who Possess Certain Industrial DevicesContaining Byproduct Material to Provide Requested InformationPart 31

64 FR 42269; (none) 1999-2 

Respiratory Protection and Controls to Restrict Internal Exposure-Part 20 64 FR 54543; 64 FR 55524

(2/2/03)

1999-3

Energy Compensation Sources for Well Logging and Other RegulatoryClarifications-Part 39

65 FR 20337; (5/17/03) 2000-1

PML023040140

Y 1/9/03ML030210400

New Dosimetry Technology-Parts 34, 36, 39 65 FR 63750; (1/8/04) 2000-2 P 

ML023040140

N 1/9/03ML030210400

Requirements for Certain Generally Licensed Industrial DevicesContaining Byproduct Material - Parts 30, 31, 32

65 FR 79162; (2/16/04) 2001-1 P

ML040640989

Y 4/02/04ML040930285

Revision of the Skin Dose Limit -Part 20 67 FR 16298; (4/5/05) 2002-1Medical Use of Byproduct Material-Parts 20, 32, and 35 67 FR 20249; (4/24/05) 2002-2Financial Assurance for Materials Licensees 

– Parts 30, 40, 70 68 FR 57327 12/3/06 2003-1