Mr. Richard B. Bays December 21, 2001

Associate Commissioner

Health Care Quality and Standards

Texas Department of Health

1100 West 49th Street

Austin, TX 78756-3199

Ms. Leigh Ing

Deputy Director

Office of Permitting, Remediation & Registration

Texas Natural Resource Conservation Commission

P.O. Box 13087, Mail Code 122

Austin, TX 78711-3087

Dear Mr. Bays and Ms. Ing:

On December 10, 2001, the Management Review Board (MRB) met to consider the proposed

final Integrated Materials Performance Evaluation Program (IMPEP) report on the Texas

Agreement State Program. The MRB found the Texas program adequate to protect public

health and safety and compatible with the Nuclear Regulatory Commissionís program. 

Section 5.0, page 22, of the enclosed final report presents the IMPEP teamís recommendations

for the State of Texas. We received your November 16, 2001 and November 19, 2001 letters

which described your staffís actions taken in response to the recommendations in the draft

report. We request no additional information.

Based on the results of the current IMPEP review, the next full review will be in approximately

four years.

I appreciate the courtesy and cooperation extended to the IMPEP team during the review and

your support of the Radiation Control Program. I look forward to our agencies continuing to

work cooperatively in the future.

Sincerely,

/RA by Paul Lohaus Acting For/

Carl J. Paperiello

Deputy Executive Director 

 for Materials, Research

 and State Programs

Enclosure:

As stated

cc: Richard Ratliff, TDH

Susan Jablonski, TNRCC

George FitzGerald, TNRCC

Edgar D. Bailey, CA/MRB Liaison 
bcc: Chairman Meserve

Commissioner Dicus

Commissioner Diaz

Commissioner McGaffigan

Commissioner Merrifield

Distribution:

DIR RF DCD (SP01)

SDroggitis PDR (YES)

DWhite, RI

VCampbell, RIV

KHsueh, STP

TJohnson, NMSS

THarris, NMSS

LCox, North Carolina

EJameson, Georgia

KCyr, OGC

MVirgilio, NMSS

KSchneider, STP

LRakovan, STP

JMyers, ASPO

Charles Hackney, RIV

DCool, NMSS

STreby, OGC

JLieberman, OGC

TCombs, OCA (2)

Texas File

DOCUMENT NAME: C:\Program Files\Adobe\Acrobat 4.0\PDF Output\2001 TX Final IMPEP Report ~.wpd

To receive a copy of this document, indicate in the box: "C"=Copy without attachment/enclosure "E"=Copy with attachment/enclosure "N"=No

copy

OFFICE Region I STP:DD STP:D DEDMRS

NAME DWhite:gd FCombs PHLohaus CPaperiello

DATE 12/14/01 12/18/01 12/18/01 12/21/01

PKG #ML013530295 STP-AG-29 
INTEGRATED MATERIALS PERFORMANCE EVALUATION PROGRAM

REVIEW OF TEXAS AGREEMENT STATE PROGRAM

AUGUST 27-31, 2001

 FINAL REPORT

U.S. Nuclear Regulatory Commission
Texas Final Report Page 1

1.0 INTRODUCTION

This report presents the results of the review of the Texas Agreement State program. The

review was conducted during the period August 27-31, 2001, by a review team consisting of

technical staff members from the Nuclear Regulatory Commission (NRC) and the Agreement

States of Georgia and North Carolina. Team members are identified in Appendix A. The

review was conducted in accordance with the "Implementation of the Integrated Materials

Performance Evaluation Program and Rescission of a Final General Statement of Policy,"

published in the Federal Register on October 16, 1997, and the November 5, 1999, NRC

Management Directive 5.6, "Integrated Materials Performance Evaluation Program (IMPEP)." 

Preliminary results of the review, which covered the period of June 29, 1997 to August 31,

2001, were discussed with Texas management on August 31, 2001.

A draft of this report was issued to Texas for factual comment on October 15, 2001. Texas sent

factual comments by letters dated November 16, 2001 from Mr. Richard B. Bays, Associate

Commissioner, Health Care Quality and Standards, Texas Department of Health, and

November 19, 2001 from Ms. Leigh Ing, Deputy Director, Office of Permitting, Remediation, and

Registration, Texas Natural Resource Conservation Commission. The Management Review

Board (MRB) met on December 10, 2001 to consider the proposed final report. The MRB found

the Texas radiation control program was adequate to protect public health and safety and

compatible with NRCís program.

The Texas Agreement State Program is administered by two State agencies, the Texas

Department of Health (the Department) and the Texas Natural Resource Conservation

Commission (the Commission). Organization charts for the Department and the Commission

are included as Appendix B.

The Departmentís Bureau of Radiation Control (the Bureau) regulates approximately 1502

specific licenses authorizing agreement materials. On July 21, 1997, the Department received

regulatory authority for the 11e.(2) uranium recovery program and currently regulates three

conventional uranium mills and six in-situ uranium mines. In addition to the radioactive

materials program, the Department administers a laboratory program for environmental

sciences under the Bureau of Laboratories. 

The Commission has regulatory responsibility for low-level radioactive waste (LLRW) disposal

sites and the decommissioning of former burial sites. The Commission had responsibility for

the uranium recovery program until its transfer to the Department in July 1997.

The review focused on the materials program as it is carried out under the Section 274b. (of the

Atomic Energy Act of 1954, as amended) Agreement between the NRC and the State of Texas.

In preparation for the review, questionnaires addressing the common and non-common

performance indicators were sent to the Department and the Commission on June 8, 2001. 

The Commission provided a response to the questionnaire on July 30, 2001 and the

Department provided a response to the questionnaire on August 9, 2001. Copies of the

complete questionnaire responses from both agencies can be found on NRCís Agencywide

Document Access and Management System (ADAMS) using the Accession Number

ML012770379.
Texas Final Report Page 2

The review team's general approach for conduct of this review consisted of: (1) examination of

Texasí responses to the questionnaire; (2) review of applicable Texas statutes and regulations;

(3) analysis of quantitative information from the Department and the Commissionís licensing

and inspection data base; (4) technical review of selected licensing and inspection actions; (5)

field accompaniments of six Texas inspectors; and (6) interviews with staff and management of

both agencies to answer questions or clarify issues. The team evaluated the information that it

gathered against the IMPEP performance criteria for each common and applicable

non-common performance indicator and made a preliminary assessment of the radiation control

programís performance. 

Section 2 below discusses the Department and the Commissionís actions in response to

recommendations made following the previous IMPEP review. Results of the current review for

the IMPEP common performance indicators are presented in Section 3. Section 4 discusses

results of the applicable non-common performance indicators, and Section 5 summarizes the

review team's findings and recommendations. Recommendations made by the review team are

comments that relate directly to program performance by the State. A response is requested

from the State to all recommendations in the final report. 

2.0 STATUS OF ITEMS IDENTIFIED IN PREVIOUS REVIEWS

During the previous IMPEP review, which concluded on June 27, 1997, eight recommendations

were made and transmitted to Dr. Patti J. Patterson, Commissioner, the Department and Dan

Pearson, Executive Director, the Commission on January 26, 1999. The teamís review of the

current status of these recommendations is as follows:

1. The review team recommends that the State adhere to the policy of annual

supervisory accompaniments of all qualified inspectors. (Section 3.4)

Current Status: During this review, the review team found that annual accompaniments

were still not conducted on an annual basis for all inspectors. Four of the nine regional

inspectors had not been accompanied by a supervisor since 1999. This

recommendation will be incorporated in the review teamís recommendation found in

Section 3.2.

2. The review team recommends that all radiation detection instruments used for

confirmatory surveys (field measurements) be calibrated on all ranges encountered by

inspectors. (Section 3.4)

Current Status: The review team determined that the Department modified their

procedures to incorporate all encountered ranges for instrument calibrations. New

Cesium 137 sources have been purchased and new documentation forms have been

generated. This recommendation is closed.

3. The team recommends that TNRCC vigorously pursue the changes necessary to make

Texas law (statutes and regulations) compatible with those of NRC in the low-level

waste (LLW) area and, if necessary, raise this issue to higher levels in the State

government. (Section 4.1)
Texas Final Report Page 3

Current Status: The definition of low level radioactive waste in Section 401.004 of

the Health and Safety Code was amended by the Texas legislation during their 1999

legislative session to reference the definition of low level radioactive waste in

10 CFR 61.2. The amended definition eliminates the jurisdictional gap that had

created a potential orphan waste category for waste containing between 10 and 100

nanocuries per gram of transuranic radionuclides. This recommendation is closed.

4. The review team recommends that the State perform an evaluation to determine the

safety significance of the issues identified by the review team pertaining to registration

certificate number TX-0246-D-103-S and to identify any other issues that may exist, and

re-evaluate the application, as necessary, to ensure that all pertinent safety and

regulatory issues are adequately addressed. (Section 4.2.1)

Current Status: The Department evaluated the issues identified in the 1997 IMPEP

report and determined that none were of safety significance. During this review, the

team interviewed staff and reviewed the certificate file and concluded that each issue

identified during the 1997 review was appropriately addressed. This recommendation is

closed.

5. The review team recommends that the State evaluate an adequate sample of additional

safety evaluations to ensure that the deficiencies identified in TX-0246-D-103-S are

adequately addressed in the additional cases, and to demonstrate that this was an

isolated occurrence. (Section 4.2.1)

Current Status: The Department reviewed a sample of other device evaluations for

the deficiencies identified in TX-0246-D-103-S and did not identify additional

deficiencies. During this review, the team did not identify the recurrence of any of

the previous deficiencies. This recommendation is closed.

6. The review team recommends that the State review the issue of concurrence reviews

for SS&D safety evaluations and implement procedures that require an independent

technical review for all future evaluations. (Section 4.2.1)

Current Status: The Department modified their procedures for performance of SS&D

safety evaluations to include a concurrence review. The review sheet for SS&D

evaluations now includes a checklist for both reviewers. During this review, the team

determined through the review of casework and interviews with staff that an

independent technical review is being performed and appropriately documented during

the concurrence review. This recommendation is closed.

7. The review team recommends that TNRCC ensure that well documented technical

bases exist for the performance assessment. Sensitivity analyses could be completed

to ensure that key aspects of the performance assessment analysis have been

reviewed. (Section 4.3.3)

Current Status: Currently, the Commission does not have a LLRW disposal application

under review. For a future application, the Commission indicated that they will use the

current NRC recommendations from the Performance Assessment working group

documented in NUREG-1573. This recommendation is closed.
Texas Final Report Page 4

8. The review team recommends that an action plan be developed and implemented by

TDH to overcome the inspection backlog in the uranium recovery program. 

(Section 4.4.1)

Current Status: The Department hired additional personnel, developed new inspection

forms and procedures, and completed an initial round of full inspections within a sixmonth period following acquisition of regulatory authority from the Commission on

September 1, 1997. There are currently no overdue inspections. This recommendation

is closed.

During the 1997 review, ten suggestions were made for the Department and the Commission to

consider. The team determined that the Department and the Commission considered the

suggestions and took appropriate actions. 

3.0 COMMON PERFORMANCE INDICATORS

IMPEP identifies five common performance indicators to be used in reviewing both NRC

Regional and Agreement State programs. These indicators are: (1) Status of Materials

Inspection Program; (2) Technical Quality of Inspections; (3) Technical Staffing and Training;

(4) Technical Quality of Licensing Actions; and (5) Response to Incidents and Allegations. 

3.1 Status of Materials Inspection Program

The team focused on four factors in reviewing the Bureauís portion of this indicator: inspection

frequency, overdue inspections, initial inspections of new licenses, and timely dispatch of

inspection findings to licensees. The review teamís evaluation is based on the Departmentís

questionnaire responses relative to this indicator, data gathered independently from the

Departmentís licensing and inspection data tracking system, the examination of complete

licensing and inspection casework, and interviews with managers and staff.

The team's review of the Departmentís inspection priorities verified that the Departmentís

inspection frequencies for various types or groups of licenses are as frequent, or more

frequent, as similar license types or groups listed in the frequency schedule in NRC Inspection

Manual Chapter (IMC) 2800. The Department requires more frequent inspections for the

following license categories: all type A broad scope licenses are inspected on a one year

frequency compared with the NRC two year frequency for type A broad scope industrial and

academic licensees; type B and C broad scope licenses are also inspected on a one year

frequency compared to the NRC frequencies of three and five years respectively; portable

gauge measuring systems are inspected on a two-year frequency compared to the NRC

frequency of five years and general license distribution type licenses are on a four-year

frequency compared to NRC's five year frequency.

In their response to the questionnaire, the Department indicated that there were a total of 44

inspections of core licensees that were completed overdue during the review period or where

overdue at the time of the review. This information was verified during the inspection casework

reviews and the review of the monthly generated "inspections due" lists provided to the review

team. The review team noted that out of 14 inspection files examined, no other inspections

were overdue other than the ones identified by the Department in the questionnaire for the

current IMPEP review. The 44 overdue inspections represented 1% of the 4,402 core
Texas Final Report Page 5

inspections performed by the Department during the review period. The review team also

examined seven initial inspections and noted that they were all completed within the IMC 2800

guidelines.

The timeliness of the issuance of inspection findings was also evaluated during the inspection

file review. The Department has set a goal of issuing the compliance finding within 31 days of

the inspection. Field office notes are expected to be sent to the Austin office within 14 days

after the inspection. Findings should be issued by the Austin office to the licensee within 17

days of receiving the notes. For the 14 inspection files examined, only two of the inspection

findings sent to the licensees significantly exceeded 31 days, due to the complexity of an

inspection write-up and a lack of clerical assistance during the review period.

The Department had 64 current licensees granted reciprocity, of which, 37 were core licensees

based on IMC 1220. The Department generally met the IMC 1220 inspection frequencies for

Priority 1 licensees but did not inspect Priority 2 licensees nor Priority 3 licensees at the

frequency in IMC 1220. The Department stated that reciprocity is difficult to monitor since each

licensee has their own calendar year based on the day the licensee starts work in the State. 

The Department maintains two separate databases for tracking reciprocity licensees, one for

fees and one for inspections. The review team noted that there were inconsistencies between

the two databases. This issue was discussed with Department management and staff. They

indicated this matter would be resolved and corrected. Due to turnover in staff and unfilled

inspector positions during the review period, Department management chose to prioritize their

resources to focus on the inspection of Department licensees instead of licensees working in

Texas under reciprocity. The review team concluded that this approach is acceptable.

As discussed in Section 3.4, the Commission has regulatory oversight for the burial site for one

active licensee. The Commission completes annual inspections of their single active licensee. 

At the time of the review, the inspections were up to date, and there was no backlog. This

licensee also has a Department license.

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Status of the Materials Inspection Program, be found satisfactory.

3.2 Technical Quality of Inspections

The team evaluated the inspection reports, enforcement documentation, and inspection field

notes and interviewed inspectors for 14 radioactive materials inspections conducted during the

review period. The casework included all of the Departmentís materials inspectors, and

covered inspections of various types as follows: industrial radiography, medical broad scope,

high dose rate after loader (HDR), mobile decommissioning service, laboratory research and

development, nuclear pharmacy, specific medical, and reciprocity. Appendix C lists the

inspection casework files reviewed for completeness and adequacy with case-specific

comments.

Based on the casework file reviews, the review team found that routine inspections covered all

aspects of the licenseeís radiation protection program. The inspection reports were thorough,

complete, consistent, and of high quality, with sufficient documentation to ensure that licenseeís

performance with respect to health and safety was acceptable. The documentation adequately

supported the cited violations. Exit interviews were held with appropriate licensee personnel.
Texas Final Report Page 6

Team inspections were performed when appropriate and for training purposes.

The inspection procedures utilized by the Department were consistent with the inspection

guidance outlined in NRCís IMC 2800. Inspection reports are in a format that covers all

inspection areas for each inspection type.

The review team found that routine inspections adequately cover the licensee's radiation

protection program, included a written summary of the scope of the licensed activities, and

categorize violations into severity levels which can later be used for escalated enforcement if

necessary. The review team noted that the majority of violations cited are record keeping

infractions and discussed the current performance-based, risk-informed inspection philosophy

with the accompanied inspectors. The review team found that the inspectors observed licensed

operations and interviewed personnel whenever possible, although these observations and

interviews were not well documented on the inspection forms. 

Inspection accompaniments are conducted by the Regional Health Physics Reviewers out of

the Austin office. During the 1997 IMPEP review, it was recommended that the Department

adhere to the annual supervisory accompaniment policy. The team found during this review

that annual inspection accompaniments were still not being conducted for all inspectors. Four

of the nine regional inspectors had not been accompanied by a supervisor since 1999. 

Department management was aware of this situation and is currently making arrangements to

perform those missing accompaniments. The review team recommends that the State adhere

to the policy of annual supervisory accompaniments of all qualified inspectors. This is a repeat

recommendation from the 1997 IMPEP review.

Five Department materials inspectors were accompanied by members of the review team

during the period of July 24, 2001 to August 2, 2001. Other inspectors were accompanied

during the 1997 review. Two inspectors were accompanied during the inspections of industrial

radiography offices and field sites, two inspectors were accompanied during inspections of

medical institutions, and one inspector was accompanied during the inspection of a

manufacturing facility. The facilities inspected are identified in Appendix C.

During the accompaniments, each inspector demonstrated appropriate inspection techniques

and knowledge of the regulations, and conducted performance-based inspections. The

inspectors were trained, well prepared for the inspection, and thorough in their audits of the

licenseesí radiation safety programs. Each inspector conducted effective interviews with

appropriate licensee personnel, observed licensed operations, conducted confirmatory

measurements, and utilized good health physics practices. The inspections were adequate to

assess radiological health and safety at the licensed facilities.

The Department has an adequate number and type of survey meters to support the current

inspection program as well as for responding to incidents and emergency conditions. The

Department calibrates their own survey instruments at a six-month frequency. Appropriate,

calibrated survey instruments such as GM meters, scintillation detectors, ion chambers and

micro-R meters were observed. They also have portable multi-channel analyzers that can be

used in the field at inspection sites. Air monitoring equipment is also available. Contamination

wipes are sent to the Stateís laboratory for analysis. This laboratory, which is administrated by

the Bureau of Laboratories, was visited on July 25, 2001 by an IMPEP team member and found

to have adequate staffing, facilities, and instrumentation to complement and support the efforts
Texas Final Report Page 7

of the Department with regards to radioactive material. The Bureau of Laboratories maintains

a mobile laboratory van for use in emergencies and emergency exercises. 

The Commission uses the same procedures and inspectors for their regulatory oversight under

this performance indicator as in the LLW and uranium recovery areas. Because of their limited

activity in this area, the review team found their performance acceptable based on the program

in place as discussed in Sections 4.3 and 4.4. 

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Technical Quality of Inspections, be found satisfactory.

3.3 Technical Staffing and Training

Issues central to the evaluation of this indicator include the Departmentís staffing level and staff

turnover, as well as the technical qualifications and training histories of the staff. To evaluate

these issues, the review team examined the Department's questionnaire responses relative to

this indicator, interviewed Department management and staff, reviewed job description, training

records, and considered any possible workload backlogs.

The Bureau consists of two major Divisions, Division of Licensing, Registration and Standards,

and Division of Compliance and Inspection. The Bureau is staffed with the Bureau Chief, two

Division Directors, eight Deputy Division Directors, technical staff and administrative support

staff. Currently, the Bureau has a total of 147 employees. Among them, 110 employees work

at the main office in Austin and 37 employees work at 11 regional offices. With regard to the

Agreement State program, the Division of Licensing, Registration and Standards has 19

technical staff positions including 11 license reviewer positions. The Division of Compliance

and Inspection has 14 technical staff positions in the main office and 14 inspector positions in

the regional offices. Three new positions were created under the Bureau due to the transfer of

regulatory authority for the 11e.(2) uranium recovery program from the Commission.

At the time of the review, there were three vacancies reported in the materials area including

two inspectors in the Region 6 office and one license reviewer in the main office. For the two

regional inspector vacancies, there have been three individuals hired for these positions in the

recent past, but because of their inability to perform the duties of the positions, these individuals

were terminated prior to completing their probationary period. One of the positions has been

open since May 31, 2000 and the second has been open since October 31, 2000. These two

positions have been posted and interviews have been conducted without finding acceptable

individuals. Due to the two inspector vacancies, the team noted that the program has

experienced some inspection backlogs in the Region 6 office. The Department plans to post

the positions with more flexible salary steps instead of starting at the lowest step in an attempt

to find acceptable candidates. For the license reviewer vacancy, the position was vacated as of

August 1, 2001. The Department will post a vacancy announcement in the near future. 

The Departmentís response to the questionnaire indicated that 16 staff members left the

program and the same number of staff members were hired during the review period. The

qualifications of the staff were determined from the questionnaire, training records, resumes

and interviews of personnel. The team found the staff well qualified from an education and

experience standpoint. All have at least Bachelorís degrees in the sciences, or equivalent
Texas Final Report Page 8

training and experience. The review team noted that a qualification journal is used for each

license reviewer. The journal establishes minimum training requirements for personnel

assigned to perform license reviews for materials facilities. The qualification journal is based

upon the requirements specified in IMC 1246 and the Final Report of the NRC/OAS Training

Working Group Recommendations for Agreement State Training Programs. The technical staff

including license reviewers and inspectors is expected to receive basic training courses (or

equivalent) within the first two years of starting work with the Department. Inspectors are

required to demonstrate competence during accompaniments by the supervisor prior to being

given permission to perform inspections independently. The review team noted that a similar

inspector qualification program is also in the process of being developed for each inspector.

The Department continues to be committed to staff training as needed to allow the staff to carry

out the duties and functions of the radiation control program. In addition to NRC training

courses, training alternatives that are less costly were also used. The review team noted that

12 staff members are attending a 5-week Basic Health Physics course offered by the Texas

A&M University in 2001. 

The Texas Radiation Advisory Board is composed of 18 members appointed by the Governor. 

The members reflect a variety of backgrounds in the use of radiation sources and also include

three representatives of the public. The purpose of the Texas Radiation Advisory Board is to

review and evaluate State radiation policies and programs, make recommendations and furnish

technical advice to the Department, the Commission and other State agencies, review

proposed rules and guidelines relating to regulation of sources of radiation, and recommend

changes. Each member is required to complete a training program including conflict-of-interest

laws before the member can vote, deliberate, or be counted as a member in attendance at a

meeting of the Texas Radiation Advisory Board.

The review team discussed with Department management their concerns about the effect of an

aging workforce and their ability to maintain a highly qualified workforce in the years to come. 

The aging workforce issue was also identified during an internal audit conducted by the State. 

The review team noted that one of the Stateís highest priorities is to effectively deal with

potential loss of a qualified workforce because of retirement of senior staff and managers in the

near future. 

The Commission uses the same staff for their regulatory responsibilities under this performance

indicator as in the LLW and uranium recovery areas. Because of their limited activity in this

area, the review team found their performance acceptable based on the program in place as

discussed in Sections 4.3 and 4.4. 

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Technical Staffing and Training, be found satisfactory.

3.4 Technical Quality of Licensing Actions

This section focuses on licensing activities in the Medical and Academic Licensing Program and

the Industrial Licensing Program for the Department program and licensing activities that

pertain to former burial of radioactive waste under Texas regulations compatible to 10 CFR Part

20 for the Commissionís program.
Texas Final Report Page 9

The review team examined completed licensing casework and interviewed the staff for 26

specific licenses from the Department and the Commission. Licensing actions were evaluated

for completeness, consistency, proper isotopes and quantities used, qualifications of authorized

users, adequate facilities and equipment, and operating and emergency procedures sufficient

to establish the basis for licensing actions. Licenses were evaluated for overall technical quality

including accuracy, appropriateness of the license, its conditions, and tie-down conditions. 

Casework was evaluated for timeliness; adherence to good health physics practices; reference

to appropriate regulations; documentation of safety evaluation reports, product certifications or

other supporting documents; consideration of enforcement history on renewals; pre-licensing

visits, peer or supervisory review as indicated; and proper signature authority. The files were

checked for retention of necessary documents and supporting data. 

The licensing casework was selected to provide a representative sample of licensing actions

that were completed during the review period. The sampling included the following types: well

logging, industrial radiography, medical (institution, private practice, and broad scope),

manufacturing and distribution, gauge (fixed and portable), pool irradiator, nuclear pharmacy,

broad scope research and development, and broad scope academic. Licensing actions

included three new licenses, eight renewals, eleven amendments, and four terminations. A list

of the licenses evaluated with case-specific comments can be found in Appendix D.

Overall, the review team found that the licensing actions were thorough, complete, consistent,

and of acceptable quality with health and safety issues properly addressed. License tie-down

conditions were stated clearly, backed by information contained in the file, and inspectable. 

The licensee's compliance history was taken into account when reviewing renewal applications

and amendments. Reviewers appropriately used the State's licensing guides, license

templates, standard conditions and checklists. No potentially significant health and safety

issues were identified.

Licensing actions in the Department are all tracked via the License Review Sheet. The sheets

are generated by the clerical staff upon receipt of an action and the information entered into the

database. All incoming licensing actions are then reviewed and assigned to a license reviewer

by the Chief of the respective licensing program. Non-complex actions, primarily administrative

amendments, are assigned to a licensing assistant for completion with close supervision by the

Chief. The License Review Sheet follows the status of the licensing action throughout the

process. 

The State maintains original financial assurance instruments with Texasí Comptroller of Public

Accounts and copies of supporting documents in the license files. The team concluded that the

State handles financial assurance appropriately. 

The team found that terminated licensing actions were adequately documented. In general, the

files included the appropriate material transfer records and survey records. There were no

performance issues identified with the handling of termination files by the Department. 

All major licenses are renewed on a seven-year frequency and all other licenses are renewed

on a ten-year frequency. Previously, the Department allowed licensees to renew by letter with a

term of five years for one renewal cycle. The Department intends to phase out the renewal by

letter process and expects to complete the renewal in entirety of all licenses by the end of the

year. The Department has developed a limited review procedure for renewals as a streamlining

initiative. New licenses receive a complete technical review and are handled as a priority. 
Texas Final Report Page 10

The Department requires authorized users and radiation safety officers for medical licenses to

certify that they have familiarized themselves with the conditions of the license application and

agreed to abide by the statements, representations, and procedures as submitted with the

application prior to approving them in their requested role. The Department frequently noted

that authorized users and radiation safety officers have failed to fulfill their role or discharge

their duties properly. Often they have accepted positions in licensed facilities without fully

understanding the responsibility, obligation and commitment that are required. The review

team recommends this as a good practice because it encourages the authorized users and

radiation safety officers to become familiar with the licenseeís radiation safety program prior to

accepting their duties.

The review team noted that the Department required an affidavit statement from a property

owner in cases where licensed activities were to be conducted on leased property. The affidavit

ensures that the property owner knows that the tenant will be storing and using radioactive

material at the site. The review team recommends this as a good practice.

The Commission has regulatory responsibility for the burial of radioactive waste conducted

under Texas regulations compatible to 10 CFR Part 20. Eighteen facilities have been evaluated

for decommissioning by the Commission during the review period; four of these are licensed

facilities and the other fourteen have been reviewed for decommissioning by rule. Of the four

licenses, one has been terminated, two are being reviewed for termination and one is under

review for renewal. This one license is currently in timely renewal, and the revised license

application is being reviewed by staff. Of the remaining 14 facilities, nine have been

decommissioned and five are currently under review for decommissioning. There were no

performance issues identified by the review team during the review of the Commissionís files for

this portion of the Commissionís program.

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Technical Quality of Licensing Actions, be found satisfactory.

3.5 Response to Incidents and Allegations

In evaluating the effectiveness of the Departmentís actions in responding to incidents, the

review team examined the Departmentís response to the questionnaire relative to this indicator,

evaluated selected incidents reported for Texas in the Nuclear Material Events Database

(NMED) against those contained in the Departmentís files, and evaluated the casework and

supporting documentation for 12 material incidents. A list of the incident casework examined

with case-specific comments is included in Appendix E. The team also reviewed the

Departmentís response to 11 allegations involving radioactive materials, including seven

allegations referred to the Department by the NRC during the review period. 

The review team discussed the Departmentís incident and allegation procedures, tracking

system, file documentation, the Stateís Open Record Act, NMED, and notification of incidents to

the NRC Operations Center with Department management and staff.

Responsibility for initial response and follow-up actions to material incidents and allegations

rests with the Incident Investigation Program under the Division of Compliance and Inspection. 

Written procedures exist for handling incidents and allegations which are referred to as

ìcomplaintsî by the Department. The Department procedures require on-site investigation for
Texas Final Report Page 11

each significant incident and a timely response to allegations. All incidents and allegations are

tracked by a numerical identification system. In most cases, the numerical identification

numbers for incidents were cross-referenced on the NMED report.

During the review period, the Department received notification of more than 500 radioactive

material incidents. Since the Department does not differentiate between Agreement material

and non-Agreement material incidents in the tracking system, the review team was unable to

determine how many Agreement materials incidents occurred during the review period or how

many incidents the Department should have reported to NRC per Office of State and Tribal

Programs (STP) Procedure SA-300, Reporting Material Events. 

The 12 incidents selected for review included the following categories: misadministration,

overexposure, equipment failure, lost and stolen gauges, loss of radioactive material, damaged

source and contamination event, and loss of administrative control. The review team found that

the Departmentís response to incidents was generally complete and comprehensive. Initial

responses were prompt and well-coordinated, and the level of effort was commensurate with

the health and safety significance. Inspectors were dispatched for on-site investigations when

appropriate and the Department took suitable enforcement action. 

Department staff began using the NMED system in February 1998. Due to computer software

problems, Department staff did not fully utilize the NMED system until November 1999. Prior to

November 1999, the Department staff provided written notification of incidents to the NRC. 

Since that time, initial and follow-up event information has been forwarded to NRCís contractor.

 Four Department staff members attended a training session on the use of an updated

Microsoft Access 97/2000 version of the NMED software in July 2001. 

The review team identified 178 incidents in NMED involving Agreement material for Texas

during the review period. The review team compiled reporting statistics for 50 incidents

including 32 significant events and 18 routine events as defined in STP Procedure SA-300,

ìReporting Material Events.î The review team noted that only 26% of the significant events

were reported to the NRCís Operations Center within 24 hours after notification of the incident

to the Department. For the routine events, 78% of the events were reported to NMED more

than five months after notification of the incident. It was also noted that routine and follow-up

event information was not reported to NMED on a monthly basis as requested in STP

Procedure SA-300. Agreement State event reporting to NRC is mandatory as detailed in a

Staff Requirements Memorandum dated June 30, 1997. Failure to report event information,

including the required frequency, can serve as a basis alone for a finding of ìnot compatibleî

per STP Procedure SA-200, Appendix B. Although the Departmentís response to incidents was

adequate from a performance and health and safety standpoint, the Departmentís performance

in not reporting in a timely fashion supports a ìsatisfactory with recommendations for

improvementî finding.

The team discussed the issue of reporting incidents with Department management and staff

responsible for NMED data entry. The review team recommends that the Department report all

significant and routine events, as well as follow-up event information, to the NRC in accordance

with STP Procedure SA-300, ìReporting Material Events.î 

The review team noted that under the Texas Medical Practice Act, effective September 1, 1999,

the Department is prohibited from releasing any confidential medical event information to the
Texas Final Report Page 12

public. This had been interpreted by the Departmentís legal staff to include information such as

patient prescribed dose, administrated radionuclide and its activity. The Department has begun

to redact the medical event information contained in the quarterly summary reports on

incidents, allegations and enforcement actions available at the Department web site. Due to

the enactment of this Act, at the time of the onsite review, NRC would also not receive the

medical event information which was needed to complete NMED records from Texas. This

issue was reviewed by NRCís Office of General Counsel prior to the MRB meeting and

discussed with legal staff in the Department. The Department has modified its reporting

practice to contain technical information regarding the medical event, but will keep the patientís

identity confidential. The MRB agreed that this is an acceptable practice to achieve

compatibility in reporting.

During the review period, the Department received 91 allegations involving Atomic Energy Act

(AEA) material. Among them, 14 allegations were referred to the Department by the NRC. 

Due to time limitations on team members, the casework for seven of these allegations was

reviewed. The casework for four additional allegations reported directly to the Department were

also reviewed. The review team noted that for 10 of the allegations reviewed, the Department

promptly responded with appropriate investigations, follow-up, and close out actions. 

Information about an allegation, including the identity of an alleger, is not protected under the

State's Open Record Act once the file is closed. During the initial telephone contact, the alleger

is advised that their anonymity cannot be guaranteed. The review team noted that the incident,

allegation and enforcement actions are posted on the Department web site, as required by

legislative mandate, when the case becomes final.

The eleventh allegation file reviewed was a highly complex case referred to the Department by

the NRC. The team noted that the Department completed its investigation and reached the

conclusion that substantiated portions of the allegerís concerns. Appropriate enforcement

actions were taken. Other portions of the allegation were not substantiated. During a review of

licensee documents contained in the allegation file, the review team identified that several

personnel monitoring badge records, other than the allegerís, appeared to contain errors. The

review team believes that the cause of these errors needs to be examined. The review team

discussed this finding with Department management and staff. During the discussions, the

Department acknowledged that the main focus of their investigation had been on the allegerís

exposure records and it appeared to be an oversight that they did not identify the errors

contained in the records of the allegerís co-workers. The Department stated that they will

request additional clarifying information from the licensee in the near future. The Office of State

and Tribal Programs requested that the Department provide the results of their evaluation of

this information to NRC following completion of this review. NRC will follow its procedures and

complete its review of any additional information received.

The Commission uses the same procedures and inspectors for their regulatory oversight under

this performance indicator as in the LLW and uranium recovery areas. Because of their limited

activity in this area, the review team found their performance acceptable based on the program

in place as discussed in Sections 4.3 and 4.4. 

Based on the IMPEP evaluation criteria and the Stateís November 16, 2001 response, the

review team recommends that Texasí performance with respect to the indicator, Response to

Incidents and Allegations, be found satisfactory. 
Texas Final Report Page 13

4.0 NON-COMMON PERFORMANCE INDICATORS

IMPEP identifies four non-common performance indicators to be used in reviewing Agreement

State Programs: (1) Legislation and Program Elements Required for Compatibility; (2) Sealed

Source and Device Evaluation Program; (3) Low-level Radioactive Waste Disposal Program;

and (4) Uranium Recovery Program. 

4.1 Legislation and Program Elements Required for Compatibility

4.1.1 Legislation

The legal authority for the Department is found in the Texas Radiation Control Act, Health and

Safety Code, Chapter 401. The Department is designated as the State radiation protection

agency with authority to regulate byproduct materials, source materials, and special nuclear

materials in quantities not sufficient to form a critical mass. The Commissionís legal authority

for LLW activities is found in Chapters 401, 402 and 403 of the same Act.

All Texas agencies are subject to sunset review by the Texas Sunset Commission. The

Department was last reviewed in 2000 and the Commission was reviewed in 2001. The next

sunset review will be 12 years from the previous review, or in 2012 and 2013 for the

Department and the Commission, respectively.

New legislation passed in 1999 that affected both the Department and the Commission. 

Specifically, a new provision was added to the Government Code, Chapter 2001.09 which

requires Texas State agencies to assess whether the reasons for adopting each rule continue

to exist and to review each rule to determine whether it is obsolete, whether it reflects the

current legal and policy considerations and whether it reflects current procedures of the agency. 

Each rule is required to be reviewed four years from the last effective date of the rule and a

notice of intent to review the rule must be published in the Texas Register.

In addition, legislation was passed in 2001 that effected the Bureau. This included: (1) a

requirement to evaluate the financial qualification of all licensees; (2) authority to use the

Radiation and Perpetual Care Fund to pay for removal, cleanup or remediation of radioactive

materials; (3) the payment of administrative penalties into the Radiation and Perpetual Care

Fund; and (4) a 5% surcharge on the annual fee for all materials licensee to maintain the

Radiation and Perpetual Care Fund.

In November 1998, the Department and the Commission entered into a Memorandum of

Understanding (MOU) to implement and coordinate responsibilities and define the respective

duties of the two agencies in the regulation of sources of radiation to provide a consistent 

approach to avoid duplication and to delineate areas of separate jurisdiction. The MOU is

incorporated into Section 289.101 of 25 Texas Administrative Code. 

4.1.2 Program Elements Required for Compatibility

The Department regulations for control of radiation are located in Title 25 of the Texas

Administrative Code and apply to ionizing and non-ionizing radiation, whether emitted from

radionuclides or devices. Texas requires a license for possession and use of radioactive

materials, including naturally occurring and accelerator-produced radionuclides. The
Texas Final Report Page 14

Commissionís regulations for control of radiation and disposal of LLRW are located in Title 30

of the Texas Administrative Code.

The review team examined the procedures used in the Department and the Commissionís

regulatory process and found that the public and other interested parties are offered an

opportunity to comment on proposed regulations. The NRC is provided with drafts for

comment. The package of draft regulations prepared by Bureau staff requires review and

recommendation from the Texas Radiation Advisory Board and approval from the Departmentís

associate and deputy commissioner. The Texas Board of Health gives final approval for the

proposed or final regulations before publication in the Texas Register. Department staff

indicated that the entire rule making process typically takes one year. The Commissionís rule

making process also requires review of the proposed rules by the Texas Radiation Advisory

Board with final approval by their Commissioners. The adoption of rules by the Commission

can take up to one year to adopt. 

The team evaluated the Department and the Commissionís responses to the questionnaire,

reviewed the status of regulations required to be adopted by the State under the Commissionís

adequacy and compatibility policy and verified the adoption of regulations with data obtained

from the STP Regulations Assessment Tracking System. Since the last IMPEP review, the

Department adopted 22 regulations in three rule packages that became effective in March

1998, April 1999 and October 2000. The Commission has adopted four regulations since the

last IMPEP review in rule making packages that became effective July 1998 and August 2001.

Current NRC policy requires that Agreement States adopt certain equivalent regulations or

legally binding requirements no later than three years after they are effective. Neither agency

has overdue regulations.

The Commission has adopted all regulations required for compatibility. The Department will

need to address the following four regulations in upcoming rule makings or by adopting

alternate legally binding requirements:

! ìRadiological Criteria for License Termination of Uranium Recovery Facilitiesî 10 CFR

Part 40 amendment (64 FR 17506) that became effective June 11, 1999.

! ìRespiratory Protection and Controls to Restrict Internal Exposures,î 10 CFR Part 20

amendment (64 FR 54543; 64 FR 55524) that became effective February 2, 2000.

! ìEnergy Compensation Sources for Well Logging and Other Regulatory Clarifications,î

10 CFR Part 39 amendment (65 FR 20337) that became effective May 17, 2000.

! ìNew Dosimetry Technology,î 10 CFR Parts 34, 36, and 39 amendments (65 FR 63749)

that became effective January 8, 2001.

The review team noted that the Departmentís ìtwo-personî rule for the conduct of industrial

radiography operations in Title 25, Section 289.255(v)(7)(G) does not require the second

qualified individual to observe the operations and be capable of providing immediate assistance

to prevent unauthorized entry unless the radiographer trainee is operating the equipment. In

this case, the radiographer trainer must maintain direct surveillance of the radiographer trainee

when operating the equipment. NRCís requirement in 10 CFR 34.41(a) states that radiography
Texas Final Report Page 15

cannot be performed if only one qualified individual is present. The review team discussed this

matter with the Department and they indicated that if a radiographer trainee is not present at

the temporary job site, one of the two qualified radiographer and/or radiographer trainer does

not need to observe radiographic operations. 

The compatibility requirement for the ìtwo-personî rule requires that the Stateís regulation be

ìessentially identicalî to the NRCís due to trans-boundary implications (Category B). The

Department stated that the current version of their ìtwo-personî rule has been part of the

Departmentís regulations since 1986 and was adopted at that time along with specific training

requirements. The review team concluded that the Departmentís ìtwo-personî rule is not

compatible with the equivalent NRC regulation. 

The review team submitted the Departmentís ìtwo-personî rule to OGC for their review. OGC

determined that the Texas rule does not meet Compatibility Category B as defined in

Management Directive 5.9 and thus the Texas rule is not compatible with NRCís rule. In their

detailed response to the draft IMPEP report, the Department stated that they disagree with

NRCís prescriptive interpretation of the requirement for a two-person crew and noted that their

requirements more directly address the historical root causes of the large number of industrial

radiography overexposures seen prior to adoption of their regulations in 1986 (see the

Departmentís response to the draft IMPEP report, Attached). The review team noted and the

MRB concurred, that the Department presented sufficient information to warrant

reconsideration of how this rule should be implemented. The review team recommends that

NRC, in coordination with the Agreement States, re-evaluate the two-person rule to assess the

effectiveness of the intended outcomes, including experience from past events, and propose a

strategy and rule interpretation that best achieves the goal of safety.

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Legislation and Program Elements Required for Compatibility, be

found satisfactory.

4.2 Sealed Source and Device (SS&D) Evaluation Program

In conducting this review, three sub-indicators were used to evaluate the Departmentís

performance regarding their SS&D Evaluation Program. These sub-indicators include: 

(1) Technical Quality of the Product Evaluation; (2) Technical Staffing and Training; and

(3) Evaluation of Defects and Incidents Regarding SS&Ds.

In assessing the Department's SS&D evaluation program, the review team examined

information provided by the Department in response to the IMPEP questionnaire on this

indicator. A review of selected new, amended, corrected, inactivated, converted and

transferred SS&D evaluations, deficiency letters and supporting documents covering the review

period was conducted. The review team noted the Departmentís use of guidance documents

and procedures, interviewed the staff, technical support professionals, and management

involved in the SS&D evaluations, and verified the use of regulations and license conditions to

enforce commitments made in the applications. 

4.2.1 Technical Quality of the Product Evaluation Program
Texas Final Report Page 16

The Department completed approximately 50 actions involving more than 25 different

certificates during the review period. Ten case files, representing 18 actions, were selected for

review. The certificates reviewed covered the period since last review and included work

performed by all reviewers. The cross-section sampling included medical and industrial

applications of both sealed sources and devices. The SS&D actions reviewed included new

certificates, amendments, and inactivated certificates. With the retirement of a senior staff

member in April 2001, the team included a number of SS&D evaluations performed by newer

staff and issued since February 2001. The SS&D certificates issued by the Department, and

evaluated by the review team, are listed with case-specific comments in Appendix F.

The selected SS&D registration certificates and case files were reviewed for accuracy,

appropriateness for authorization, tie-down statements, inclusion of appropriate and useful

ìLimitations and Considerations of Useî to be utilized by license reviewers, and overall technical

quality. The casework was evaluated for timeliness, adherence to good radiation safety

practices, acceptable engineering practices, reference to appropriate regulations, evaluation of

safety evaluation reports, manufacturing Quality Assurance/Quality Control, supporting

documents, peer and supervisory review as indicated, and proper signature authority. The files

were checked for retention of necessary documents and other supporting data.

Analysis of the casework and interviews with staff confirmed that the Department generally

follows the recommended guidance from the NRC SS&D training workshops and two Texas

regulatory guides (ìGuide for Applications for Evaluation of Sealed Sources of Radioactive

Materialî and ìGuide for Applications for Evaluation of Devices Containing Radioactive

Materialî) that provide information comparable to NUREG-1556, Volume 3, issued in July 1998. 

The Department has also created template documents for use by the SS&D evaluation staff. 

All applicable and pertinent American National Standards Institute standards, NUREG-1556

Series, NRC or Texas Regulatory Guides, and applicable references were confirmed to be

available and were used appropriately in performing the SS&D reviews. In reviewing emergent

technology related products and new applications, the Department performed evaluations

based on sound conservative assumptions to ensure public health and safety and also sought

the input from other licensing jurisdictions that have experience with similar products. 

Appropriate review checklists were used to assure that all relevant materials were submitted

and reviewed. The checklists are retained in the case files. Registrations clearly summarized

the product evaluation and provided license reviewers with adequate information in the

ìLimitations and Considerations of Useî section on areas requiring additional attention to

license the possession, use, and distribution of the products. The review team identified a few

errors that were present in multiple files, but these were of an editorial nature and did not affect

the technical quality of the evaluation itself. The team determined that product evaluations

were thorough, complete, consistent, of acceptable technical quality, and adequately addressed

the integrity of the products during use and in the event of likely accidents.

The review team discussed a few general issues with Department staff, including the need to

use the appropriate template, and the need to utilize dual units and include a percent error on

maximum activity as indicated in the Departmentís checklist in order to foster national

consistency. The Department agreed with the need to include these issues and will incorporate

them. 
Texas Final Report Page 17

4.2.2 Technical Staffing and Training

SS&D evaluation responsibilities are distributed among the license review staff. The evaluation

staff currently consists of a lead license reviewer (0.4 FTE) and 5 secondary reviewers (0.05

FTE each). At the time of the review, one secondary reviewer position was vacant (date of

vacancy was August 1, 2001). During the review period, the Department lost one senior SS&D

staff member to retirement (effective April 1, 2001), and had one license reviewer complete the

SS&D workshop in CY2001. Additionally, the Department has two license reviewers going

through training for SS&D evaluation; they are scheduled to attend the SS&D workshop in

CY2002. 

New staff members develop SS&D evaluation experience by working with senior members on

evaluations, sometimes signing as a second concurrence signature, then by performing

concurrence reviews by themselves, and finally by performing the initial reviews on SS&D

applications. Assignment of casework is determined by the SS&D supervisor, with most staff

specializing in either industrial or medical.

The review team examined the training and experience documentation of the staff and

management involved in the evaluation program. The review team noted a blend of senior and

junior reviewers and a schedule for training new staff. The educational qualifications for the

current staff were evaluated and were found adequate. 

4.2.3 Evaluation of Defects and Incidents Regarding SS&Ds

No safety significant or generic incidents, issues, or defects related to SS&D issues were

reported concerning the devices registered by the Department during the review period. The

review team also verified that there were no reported incidents through discussions with the

SS&D reviewers and a review of the NMED database. 

No incidents were identified that were related to any malfunctioning devices or products

considered during this review. 

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Sealed Source and Device Evaluation Program, be found

satisfactory.

4.3 Low-level Radioactive Waste (LLRW) Disposal Program

In conducting this review, five sub-indicators were used to evaluate the Programís performance

regarding the LLRW disposal program. These sub-indicators include: (1) Status of LLRW

Disposal Inspection Program; (2) Technical Quality of Inspections; (3) Technical Staffing and

Training; (4) Technical Quality of Licensing Actions; and (5) Response to Incidents and

Allegations. The results of the LLRW disposal program review will be discussed under each of

these sub-indicators.

In 1981, the Texas Legislature created the Texas LLRW Disposal Authority (TLLRWDA) for the

purpose of siting, developing, and operating an LLRW disposal facility. Since 1993, the

Commission has the authority to regulate disposal of radioactive material. Within the

Commission, the LLRW program is administered by the Radioactive Material Licensing Team
Texas Final Report Page 18

within the Industrial & Hazardous Waste Division. In 1992, TLLRWDA submitted a license

application for review. The Commission completed its review on March 26, 1996, and a draft,

proposed license was developed. On July 15, 1998, the State Office of Administrative Hearings

determined that the applicant failed to establish adequacy in the areas of tectonics and

socioeconomic. Subsequently, the Commission issued an Order on October 27, 1998, denying

the license application because the applicant had not demonstrated that the site complied with

30 TAC 336.715 and 336.728(i). In September 1999, the functions of TLLRWDA were

transferred to the Commission.

Currently, the Commission does not have a LLRW disposal application under review. Under

Texas regulations, the State is responsible for siting an LLRW disposal facility, and private

entities do not have the authority to propose a commercial LLRW disposal facility. These

regulations were not changed during the 2001 legislative session.

4.3.1 Status of LLRW Disposal Inspection

At the time of the review, the Commission was in the process of developing inspection

procedures for the proposed Sierra Blanca site. These procedures would be finalized, if an

application is received. Since the Commission does not have an application, this program

sub-indicator was not reviewed. 

4.3.2 Technical Quality of Inspections

Since the Commission does not have an LLRW facility, this program sub-indicator is not

applicable.

4.3.3 Technical Staffing and Training

Since the last IMPEP review, the number of Commission and contractor staff supporting the

LLRW program has decreased because there is no application under review. A few staff

members have retired, and most staff members have transferred to other programs within the

Texas government. There are currently six core technical staff members supporting the LLRW

program in the areas of geology and health physics. All technical staff have bachelors degrees

or above. Commission management indicated that staffing would be increased if an application

was submitted. This could include utilizing staff members that had transferred to other

programs. In addition, the manager indicated that additional support by contractors would be

used. 

4.3.4 Technical Quality of Licensing Actions

The Commission utilizes licensing guides including the following: (1) ìStandard Review Plan for

the Review of a License Application for a LLRW Disposal Facility,î NUREG-1200;

(2) ìEnvironmental Standard Review Plan for the Review of a License Application for a LLRW

Disposal Facility,î NUREG-1300; (3) ìStandard Format and Content of a License Application for

a LLRW Disposal Facility,î NUREG-1199; (4) ìReview Process for a LLRW Disposal License

Application under the LLRW Policy Amendments Act,î NUREG 1274; and (5) ìStandard Format

and Content of Environmental Reports for Near-surface Disposal of Radioactive Waste,î

Regulatory Guide 4.18. The Commission was also aware of a technical report entitled ìA

Performance Assessment Methodology for LLRW Disposal Facilities: Recommendations of
Texas Final Report Page 19

NRCís Performance Assessment Working Group,î NUREG-1573, that was published in

October 2000. This document includes suggestions on performing sensitivity analyses in

reviewing performance assessments. The Commission indicated that they would also use this

document as appropriate in evaluating any future application.

4.3.5 Response to Incidents and Allegations

There were no reported incidents, or allegations of safety concerns with regards to the LLRW

program.

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, LLRW Disposal Program, be found satisfactory.

4.4 Uranium Recovery Program

In conducting this review, five sub-indicators were used to evaluate the Programís performance

regarding the uranium recovery program. These sub-indicators include: (1) Status of Uranium

Recovery Inspection Program; (2) Technical Quality of Inspections; (3) Technical Staffing and

Training; (4) Technical Quality of Licensing Actions; and (5) Response to Incidents and

Allegations. The results of the uranium recovery program review will be discussed under each

of these sub-indicators.

In 1993, jurisdiction over uranium recovery activities was transferred to the Commission from

the Department. In 1997, jurisdiction was transferred back to the Department from the

Commission. Under the MOU (see Section 4.1.1) between the two agencies regarding in-situ

uranium mining, the Department has primary responsibility for the licensing and enforcement

activities for aboveground process plant facilities, including the review of the design,

construction, operation, record keeping, maintenance, and decommissioning, decontamination,

and surface reclamation. The Commission has primary responsibility for the permitting and

enforcement activities for all wells permitted by the underground injection control program,

wellhead assemblies, and groundwater monitoring requirements. Both agencies are

responsible for the review, permitting, licensing, and enforcement activities for fluid holding

ponds. The Department now has the responsibility for the licensing and reclamation of

conventional uranium mill facilities.

At the time of the review, Texas had three conventional mill licenses (three sites currently under

reclamation, but substantially finished with construction activities), six in-situ licenses (five sites

currently in restoration), and one new application under review. Two in-situ licenses have been

terminated in the last four years.

4.4.1 Status of Uranium Recovery Inspection Program

The inspection program for both conventional and in-situ uranium facilities has set inspection

priorities at one year frequency, consistent with IMC 2800 and IMC 2801. Some inspections

are conducted more frequently (e.g., every six months) when escalated enforcement actions

are warranted. Currently, there are no overdue inspections. 

At the time of transfer of program responsibilities on September 1, 1997, an inspection backlog

existed. The Department developed and implemented an action plan to overcome the
Texas Final Report Page 20

inspection backlog which included the hiring of additional personnel, developed new inspection

forms and procedures, and completed an initial complete round of inspections within a sixmonth period.

4.4.2 Technical Quality of Inspections

In reviewing this sub-indicator, the review team examined inspection files, inspection reports,

and enforcement documentation. These reviews indicated that inspections adequately covered

the scope, completeness, and technical accuracy to determine compliance with regulations,

license conditions, and available guidance. Appropriate enforcement actions were taken both

by the Department and the Commission given the scope of the violations noted. The

inspections were thorough and the violations identified were addressed by the licensee. The

team also determined that supervisory inspection accompaniments are performed annually, in

accordance with written procedures. Appendix C lists the inspection casework files reviewed

for completeness and adequacy.

A team member accompanied a Department inspector to the Cogema in-situ facility on

August 21, 2001. During the accompaniment, the inspector demonstrated appropriate

inspection techniques and knowledge of the regulations, and conducted a performance-based

inspection. The inspector was trained, well prepared for the inspection, and thorough in the

audit of the licenseeís radiation safety programs. The inspector conducted effective interviews

with appropriate licensee personnel, observed licensed operations, conducted confirmatory

measurements, and utilized good health physics practices.

4.4.3 Technical Staffing and Training

The Inspection and Compliance Team in the Commission performs inspections at in-situ

facilities consistent with the scope and responsibility outlined in the MOU and consists of a team

leader and a health physicist. The Uranium Inspection Project Team in the Department

performs inspections at in-situ facilities and consists of a project leader and an inspector with

extensive experience as a Radiation Safety Officer at a licensed uranium recovery facility. The

review team examined the education, training, and experience of the inspection staff members

for the Commission and the Department and found that the qualifications of the technical staff

and supervisors are commensurate with the expertise identified as necessary to regulate in-situ

uranium recovery activities.

Licensing activities in the Department for conventional uranium mills are conducted by the

Uranium/NORM Licensing Program, consisting of a program chief and several technical

reviewers trained in various technical disciplines. The review team examined the training and

qualifications of the personnel assigned to review reclamation plans for conventional uranium

recovery facilities and interviewed Department staff. The team believes that the performance of

the Department staff will be enhanced with additional training in the areas of surface water

hydrology, erosion protection design, groundwater modeling, and geotechnical engineering. 

The Department did not have a specific training plan that addressed the necessary training for

the review of reclamation plans at conventional uranium mills. The review team discussed the

desirability for development and implementation of a training plan by the Department to assure

that technical staff are sufficiently trained in specific technical areas related to review of

reclamation plans at conventional uranium mills. 
Texas Final Report Page 21

4.4.4 Technical Quality of Licensing Actions

The team examined both agencies files and documentation related to licensing of a proposed

in-situ facility, license amendment files, and other licensing documentation. Based on these

reviews, the team concluded that licensing actions were appropriate and that license conditions

were clear and well-written. Requirements associated with these conditions were based on a

need to meet regulations and to protect health and safety. Appendix D lists the licensing files

reviewed for completeness and adequacy.

The team attempted to evaluate the Stateís review and documentation of reclamation plans

at three conventional uranium mill sites in South Texas: (1) Conoco-Conquista Project;

(2) Rio Grand Resources-Panna Maria Project; and (3) Exxon-Ray Point Project. There was

apparently no documentation of the Commissionís review of the reclamation plans in the files

when they were transferred to the Department in 1997. The lack of documentation poses a

major issue to the Department since: (1) Section 274(c) of the AEA requires that, before a

license can be terminated at a conventional uranium mill, an Agreement State must determine

that all applicable standards and regulations have been met; and (2) NRC must concur in the

Stateís determination that the standards and requirements have been met, based on a review

of the Stateís bases for making such a determination. The review team recommends that the

Department prepare necessary supporting documentation identifying the bases for the licensing

actions associated with reclamation plans for the three conventional mills.

The Department is participating in the current revision of guidance for license termination, STP

Procedure SA-900, ìTermination of Uranium Milling Licenses in Agreement States,î by an

NRC/Agreement State working group. The review team discussed these revisions and the

Department plans to utilize SA-900 once the revised guidance is finalized by NRC. 

4.4.5 Response to Incidents and Allegations

During the review period, several minor incidents, such as on-site pipe leaks, were reported. 

The Department followed up on these incidents and discussed their findings in inspection

reports. Several allegations were investigated, including involvement of both the Commission

and the Department. Review of the files indicated that the evaluations and the actions taken by

the State were timely and satisfactory.

Based on the IMPEP evaluation criteria, the review team recommends that Texasí performance

with respect to the indicator, Uranium Recovery Program, be found satisfactory.

5.0 SUMMARY

As noted in Sections 3 and 4 above, the review team found Texasí performance to be

satisfactory for all nine performance indicators. Accordingly, the review team recommended

and the MRB concurred in finding the Texas Agreement State program to be adequate and

compatible with NRC's program. Based on the results of the current IMPEP review, the review

team recommends that the next full review should be in approximately four years.

Below are the recommendations, as mentioned earlier in the report, for evaluation and

implementation, as appropriate, by the State.
Texas Final Report Page 22

RECOMMENDATIONS FOR THE STATE:

1. The review team recommends that the Department adhere to the policy of annual

supervisory accompaniments of all qualified inspectors. (Section 3.2)

2. The review team recommends that the Department report all significant and routine

events as well as follow-up event information to the NRC in accordance with the STP

Procedure SA-300, ìReporting Material Events.î (Section 3.5)

3. The review team recommends that the Department prepare necessary supporting

documentation identifying the bases for the licensing actions associated with

reclamation plans for the three conventional mills. (Section 4.4.4)

RECOMMENDATIONS FOR THE NRC:

1. The review team recommends that NRC, in coordination with the Agreement States, reevaluate the two-person rule to assess the effectiveness of the intended outcomes,

including experience from past events, and propose a strategy and rule interpretation

that best achieves the goal of safety. (Section 4.1.2)

GOOD PRACTICES

1. The Department requires authorized users and radiation safety officers for medical

licenses to certify that they have familiarized themselves with the conditions of the

license application and agreed to abide by the statements, representations, and

procedures as submitted with the application prior to approving them in their requested

role. (Section 3.4) 

2. The Department requires an affidavit statement from a property owner in cases where

licensed activities were to be conducted on leased property to ensure that the property

owner know that the tenant will be storing and using radioactive material at the site.

(Section 3.4) 
LIST OF APPENDICES AND ATTACHMENTS

Appendix A IMPEP Review Team Members

Appendix B Texas Organization Charts

Appendix C Inspection Casework Reviews

Appendix D License Casework Reviews

Appendix E Incident Casework Reviews

Appendix F Sealed Source & Device Casework Reviews

Attachments Letter dated November 16, 2001 from Mr. Richard B. Bays,

Associate Commissioner, Health Care Quality and Standards,

Texas Department of Health (ML013250497), and letter dated

November 19, 2001 from Ms. Leigh Ing, Deputy Director, Office of

Permitting, Remediation, and Registration, Texas Natural

Resource Conservation Commission (ML013240321)
APPENDIX A

IMPEP REVIEW TEAM MEMBERS

Name Area of Responsibility

Duncan White, Region I Team Leader

Legislation and Program Elements Required

for Compatibility

Inspection Accompaniments

Vivian Campbell, Region IV Technical Quality of Licensing Actions

Lee Cox, North Carolina Status of Materials Inspection Program

Technical Quality of Inspections

Inspection Accompaniments

Tim Harris, NMSS Technical Quality of Licensing Actions

LLRW Disposal Program

Kevin Hsueh, STP Technical Staffing and Training 

Response to Incidents and Allegations

Eric Jameson, Georgia Sealed Source and Device Evaluation Program

Ted Johnson, NMSS Uranium Recovery Program

Inspection Accompaniment
APPENDIX B

TEXAS

DEPARTMENT OF HEALTH

AND

TEXAS NATURAL RESOURCE

CONSERVATION COMMISSION

ORGANIZATION CHARTS

(ML012770379)