September 26, 2001

Mr. Mike Koranda, Director

Field Operations Division

New Mexico Environment Department

1190 St. Francis Drive

Santa Fe, NM 87502-0100

Dear Mr. Koranda:

On September 18, 2001, the Management Review Board (MRB) met to consider the proposed

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

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

health and safety and compatible with the Nuclear Regulatory Commission’s program. 

Section 5.0, page 12, of the enclosed final report presents the IMPEP team’s single

recommendation for the State of New Mexico. We received your August 17, 2001 letter which

described your staff’s actions taken in response to the recommendation 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/

Carl J. Paperiello

Deputy Executive Director 

 for Materials, Research

 and State Programs

Enclosure: 

As stated

cc: William Floyd, Manager

Radiation Protection Program 

Cecilia Williams, Chief

Community Services Bureau

Pearce O’Kelley, SC

OAS Liaison to the MRB
Mike Koranda September 26, 2001

Distribution:

DIR RF DCool, NMSS DCD (SP01) PDR (YES/)

SDroggitis, STP GDeegan, NMSS

KSchneider, STP LMcLean, RIV bcc: Chairman Meserve

LRakovan, STP MStephens, FL Commissioner Dicus

CMaupin, ASPO TDarden, RI Commissioner McGaffigan

DChamberlain, RIV FCameron, OGC Commissioner Merrifield 

CHackney, RIV STreby, OGC

New Mexico File TCombs, OCA (2 copies)

DOCUMENT NAME: G:\IMPEP\2001 NM Final IMPEP Report and Letter.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 STP STP:DD STP:D EDO

NAME RLBlanton:kk FCCombs

(By DMSollenberger)

PHLohaus CJPaperiello

DATE 09/20/01 09/21/01 09/21/01 09/26/01

 STP-AG-19
INTEGRATED MATERIALS PERFORMANCE EVALUATION PROGRAM

REVIEW OF THE NEW MEXICO AGREEMENT STATE PROGRAM

June 18 - 22, 2001

FINAL REPORT

U.S. Nuclear Regulatory Commission
New Mexico Final Report Page 1

1.0 INTRODUCTION

This report presents the results of the review of the New Mexico radiation control program. The

review was conducted during the period of June 18 - 22, 2001, by a review team comprised of

technical staff members from the Nuclear Regulatory Commission (NRC) and the State of Florida. 

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 25, 1999, NRC Management Directive (MD) 5.6, "Integrated Materials

Performance Evaluation Program (IMPEP)." Preliminary results of the review, which covered the

period July 19, 1997 to June 22, 2001 were discussed with New Mexico management on June 22,

2001.

A draft of this report was issued to New Mexico for factual comment on July 20, 2001. The State

responded in a letter dated August 17, 2001. The Management Review Board (MRB) met on

September 18, 2001 to consider the proposed final report. The MRB found the New Mexico

radiation control program was adequate to protect public health and safety and compatible with

NRC’s program.

The New Mexico Agreement State Program is administered by the Community Services Bureau

(the Bureau) in the Field Operations Division (the Division) of the New Mexico Environment

Department (the Department). The day-to-day operations are carried out by the Radiation

Protection Program (the Program) which reports to the Bureau Chief. The Program is supervised

by a Program Manager. Organization charts for the Department and the Bureau are in Appendix

B. 

At the time of the review, the New Mexico Agreement State Program regulated 216 specific

licenses authorizing Agreement materials. 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 New Mexico. 

During the review conducted July 14 - 18, 1997, the Program was located in the Bureau of

Hazardous & Radioactive Material in the Division of Water and Waste Management. On 

July 1, 2000, the Program was transferred with all staff and resources to the Community Services

Bureau in the Field Operations Division. Shortly after this review, the Program was reorganized

as the Radiation Control Bureau in the Field Operations Division, and moved to larger office

space.

In preparation for the review, a questionnaire addressing the common and non-common

performance indicators was sent to the Program on March 22, 2001. The Program provided a

response to the questionnaire on May 24, 2001. During the review, discussions with the Program

staff resulted in the responses being further developed. A copy of the final questionnaire is

included as Appendix F of the Proposed Final Report and can be found on the NRC’s Agencywide

Documents Access and Management Systems (ADAMS) using Accession Number ML012010225. 

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

the Program's response to the questionnaire; (2) review of applicable New Mexico statutes and

regulations; (3) analysis of quantitative information from the Program licensing and inspection data
New Mexico Final Report Page 2

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

of two Program inspectors; and (6) interviews with staff and management to answer questions or

clarify issues. The team evaluated the information that it gathered against the IMPEP

performance criteria for each common and non-common performance indicator and made a

preliminary assessment of the Program’s performance.

Section 2 below discusses the Program's actions in response to recommendations made following

the previous 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. Recommendations

made by the review team are comments that relate directly to program performance by the

Department. A response is requested from the Department to all recommendations in the final

report. 

2.0 STATUS OF ITEMS IDENTIFIED IN PREVIOUS REVIEWS

During the previous IMPEP review, which concluded on July 18, 1997, 29 recommendations were

made and transmitted to Mr. Mark E. Weidler, Secretary of Environment, on December 30,

1997. A follow-up review, conducted July 6 - 10, 1998 and transmitted to Dr. Ed Kelley, Director,

Division of Water and Management on October 7, 1998, closed all but one of the

recommendations. The team’s review of the current status of this remaining recommendation is

as follows:

(1) The review team recommends that the State expedite promulgation of the compatibilityrelated regulations now overdue and those which are due within the next 12 months. 

1999 Status: The State’s response to the recommendation was reviewed during the

periodic meeting on December 7, 1999. The staff found that, as of the date of the

meeting, the State’s regulations were up to date. Further, the Program was on track to

complete future rule revisions before their due dates. The staff recommended that the

item be closed. 

Current Status: The Program has adopted the regulations needed for adequacy and

compatibility through alternate legally binding requirements. This is further discussed in

Section 4.1. This recommendation is closed.

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 this indicator: inspection frequency, overdue

inspections, initial inspections of new licenses, and timely dispatch of inspection findings to

licensees. The evaluation is based on the Program’s questionnaire responses relative to this
New Mexico Final Report Page 3

indicator, data gathered independently from the Program’s licensing and inspection data tracking

system, the examination of complete licensing and inspection casework, and interviews with

managers and staff.

The review of the Program’s inspection priority policy verified that the New Mexico inspection

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

similar license types or groups listed in NRC Inspection Manual Chapter (IMC) 2800. The

Program requires more frequent inspections in the following license categories: wireline services

are inspected at two-year intervals compared to NRC’s three years; all broad scope licenses are

inspected at two-year intervals compared to NRC’s three and five years for type B and C broad

academic licenses; medical licenses authorized for therapy are inspected at one- year intervals

compared to NRC’s three years; and portable gauges are inspected at two-year intervals

compared to NRC’s five years.

In the questionnaire, the Program indicated that no inspections were overdue by more than 25

percent of the NRC interval. This was verified during the inspection casework reviews, the review

of the monthly "tickler" file, and review of the Program's Registration and Licensing database. The

team notes that out of 17 inspection files examined, only one routine inspection was overdue

when conducted. A memorandum in the file stated that the Program’s Registration and Licensing

database was missing the inspection due date for this license, and that the error was corrected. 

Initial inspections were conducted within 6 months of the date each new license was issued. 

During the inspection casework review, the team also evaluated the timeliness of the dispatch of

inspection findings to the licensees. Inspection reports reviewed were dispatched within 5 to 10

days after the inspection. 

In the questionnaire, the Program reported receiving 177 requests for reciprocity during the review

period, of which 152 were from core licensees. The Program conducted 81, or about 53 percent,

of the core reciprocity licensees, which meets the IMC 1220 goals. The number of reciprocity

inspections performed is commendable. 

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico’s

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 radioactive materials inspections conducted during the review

period on 17 licensees. The casework included all of the Program’s materials inspectors, and

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

academic broad scope, high dose rate afterloader (HDR), irradiator, wireline services, veterinary

medicine, laboratory research and development, nuclear pharmacy, and medical. Appendix C lists

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

comments.

Based on the casework file reviews, the team found that routine inspections cover all aspects of

the licensee’s radiation protection program. The team found that inspection reports are generally
New Mexico Final Report Page 4

thorough, complete, consistent, of high quality, and with one exception as noted below, contain

sufficient documentation to ensure that the licensee’s performance with respect to health and

safety was acceptable. The documentation supports the violations, the recommendations made to

the licensee, and unresolved safety issues. Team inspections were performed when appropriate,

and for training purposes. 

Exit interviews were generally held with licensee personnel although the participation of upper

management was not documented. For example, medical institute inspection reports documented

that the inspectors routinely exited with the Radiation Safety Officer and the head of the

department, but did not document whether inspectors exited with hospital upper management. 

The team discussed the issue with the Program Manager and the staff, who indicated that they

attempt to exit with licensee upper management, but are not always successful. The staff

understands the importance of exiting with licensee’s upper management and is committed to

conducting and documenting these exit meetings.

The inspection procedures utilized by the Program are consistent with the inspection guidance

outlined in NRC’s IMC 2800. Inspection reports are in a format that covers all inspection areas for

each inspection type. Inspectors consistently document their observation of licensed activities

and the results of confirmatory measurements. The Program Manager and senior inspectors

conduct frequent accompaniments of junior inspectors. The Program Manager also accompanies

senior inspectors. 

A review team member accompanied two junior inspectors on inspections during the week of June

11, 2001. The Program’s other inspectors were accompanied during the 1997 review. The

accompaniment included inspections of an industrial radiography licensee and a medical

institution. The facilities are identified in Appendix C. 

During the accompaniments, each inspector demonstrated appropriate inspection techniques and

conducted performance-based inspections. The inspectors were well prepared for the inspection

and thorough in their audits of the licensees’ radiation safety programs. Each inspector

conducted effective interviews with appropriate licensee personnel, observed licensed operations,

conducted confirmatory measurements, and utilized good health physics practices. Their

inspections were adequate to assess radiological health and safety at the licensed facilities.

The Program has an adequate number and types of survey meters to support the current

inspection program as well as for responding to incidents and emergency conditions. G-M meters,

scintillation detectors, ion chambers, micro-R meters, and neutron meters were observed. 

Contamination wipes are sent to an outside laboratory for analysis. 

The Program contracts for instrument calibration from approved calibration companies. However,

the calibration of many of the instruments lapsed for periods of time when the contracts expired. 

For example, during 2000, only one ion chamber was calibrated (other instruments, such as G-M

meters, were calibrated). The Program Manager explained that the contract for ion chamber

calibration expired due to a management oversight and a new contract could not be funded for

2000. A contract was funded for 2001. The Program Manager confirmed that inspectors always

had a calibrated instrument available for routine inspection activities and no performance issues

were identified. The team discussed instrument calibration with the Program Manager, Bureau
New Mexico Final Report Page 5

Chief, and Division Director, who expressed the expectation that implementation of the planned

fee rules would provide funding to assure instrument calibration contracts. 

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico’s

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 Program’s 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 Program’s questionnaire responses relative to this

indicator, interviewed Program management and staff, and considered any possible workload

backlogs. 

All technical staff positions require a bachelor’s degree in one of the sciences. Positions are

classified as either Environmental Specialists, requiring four years experience, or as

Environmental Scientists, requiring two years experience.

The Program staff consists of one manager, five environmental specialists and one secretary. 

The staff is responsible for both the radioactive materials and the x-ray regulatory programs. 

Approximately 67 percent of each environmental specialist’s time is allocated to the radioactive

materials area. One staff member is assigned primarily to licensing and the inspection work load

is split among the others. The Program has two new, relatively inexperienced staff members. 

Four staff members left during the review period, and three of the positions were filled. The

Program has authority to fill the remaining vacancy. At the time of the review, a notice of the open

position was posted on an internet list server, and several inquires were received. The Program

Manager expected the position to be formally posted and filled in the near future. 

The Program hired two staff members in February 1998. With financial help from NRC, the

Program sent them to NRC training courses. One of the individuals subsequently left the

Program. In October 1999 that position was filled, and special funds were obtained from the

legislature for training. The Program remained fully staffed until May 30, 2001, when a senior

inspector retired. At the time of the review, the Program’s training funds were expended, and it

was considering alternative training opportunities, particularly supplemental training in medical

brachytherapy (including HDR) procedures from the State University. The Program Manager

stated that, due to funding, there was limited opportunity for Program staff to attend NRC training

courses. The Program does provide on-the-job training to staff, primarily on internal procedures. 

Most of the minor deficiencies observed by the review team in the other indicators can be

associated with Program stress due in part to staff and training limitations. No performance issues

were identified during the review period as a result of these deficiencies due to the expertise and

commitment of the Program’s management and staff. The review team noted that the Program

with support from the Bureau and the Division, is requesting additional staff as part of its

continuing improvement from the 1997 IMPEP review, and anticipates additional funds for training

when the fee rules are implemented. The review team believes this support will further enhance

the performance of the program.
New Mexico Final Report Page 6

The Program has a documented training and qualification program, “Radioactive Materials

Licensing and Inspection Qualification Procedure, Version 2, June 3, 1999.” This procedure is

comparable to NRC’s IMC 1246, “Formal Qualification Programs in the Nuclear Material Safety

and Safeguards Program Area.” The Program’s procedure provides for special circumstances

where an individual may be granted interim qualification status until core training is completed. 

One of the examples given for special circumstances is budget reduction.

The Program receives advice and direction from two advisory panels, the Radiation Technical

Advisory Council (the Council) and the Environmental Improvement Board (the Board). The

Council members are required to have scientific or medical backgrounds, and they can be

radioactive materials licensees. The Board is the rule promulgating authority for radiation and all

other Department programs. Conflict of interest on the part of the Council or Board members is

not addressed by the New Mexico Radiation Control Act. The team discussed conflict of interest

with the Program Manager. Based on that discussion, the Department’s legal advisor is

reviewing the general statutes concerning conflict of interest to determine if they are applicable to

the Council and Board members.

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico's

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

3.4 Technical Quality of Licensing Actions

The review team examined completed licensing casework and interviewed the staff for 27 specific

licenses. 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, medical private practice and broadscope,

nuclear pharmacy, academic, irradiator, research and development, analytical, stationary and

portable gauge. Licensing actions included three new licenses, 12 amendments to existing

licenses, eleven renewals in their entirety amendments and one termination which included

decommissioning. A list of the licenses evaluated with case-specific comments can be found in

Appendix D.

The Program revised licensing procedures to incorporate NRC licensing procedures of 1997, and

license reviewer’s procedures. Some application forms were revised, and all licensing forms were

revised. Revised documents were entered into the database for accessibility by technical staff. 

Revision of Standard License Conditions is ongoing. Licensing templates were set up for more

efficient writing of new and amended licenses. Regulatory Guides were created for
New Mexico Final Report Page 7

moisture/density gauges, broad-scope licensing, and decommissioning. The human use licensing

guidance was revised using the NUREG 1556, Volume 9: “Program-Specific Guidance About

Medical Use Licenses (Draft Report for Comment)” as the reference. New checklists were

developed using NUREG 1556 as guidance.

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 almost always 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. 

The team observed written correspondence between the reviewer and the licensee to resolve

action request deficiencies. However, in many instances, the deficiencies were resolved by

telephone discussions. While the telephone discussions were dated and noted in the record as

administrative changes, the content of the discussions was not always documented. The team did

not observe any performance issue, and noted that all license reviews were conducted by a single

staff member, and all licenses were signed by the Program Manager. The review team discussed

their concern about incomplete documentation with the Program staff. The staff was aware of the

potential for problems, and had an action plan of Program improvements to address the issue.

The team evaluated financial assurance and decommissioning activities through the review of a

terminated license where financial assurance was required for decommissioning. The actions

were well documented from the initiating action to final surveys, materials disposition and

termination of the license. 

The Program renews licenses every five years. All license actions were responded to in a timely

manner. The review team noted that most license actions were issued within days of the

requested action, and that no license action exceeded 60 days. 

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico’s

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 Program’s actions in responding to incidents, the review

team examined the Program’s response to the questionnaire relative to this indicator, evaluated

selected incidents reported by New Mexico to the Nuclear Materials Events Database (NMED)

against those contained in the Program’s files, and evaluated the casework and supporting

documentation for six materials incidents. A list of the incident casework examined with casespecific comments is included in Appendix E. The team also reviewed the Program’s response to

the one allegation involving radioactive materials during the review period. No allegations were

referred by the NRC to the Program since 1997.
New Mexico Final Report Page 8

The review team discussed incident and allegation procedures, file documentation, the Program’s

event and allegation tracking system, the NMED, and notification of incidents to the NRC

Operations Center with the Program Manager and selected staff.

The team found that responsibility for initial response and follow-up actions to materials events

and allegations rested solely with the Program. The staff members evaluate events and

allegations, then determine the appropriate response through discussion with the Program

Manager. Program staff evaluates all events with potential for affecting public safety.

 

The Program had 23 materials incidents during the review period, 10 of which were reportable

under NRC criteria. Six incidents were selected for review. The incidents included lost gauges,

overexposure, and misadministrations. The review team found that the Program’s response to

incidents was complete and comprehensive. Initial responses were prompt and well-coordinated

and the level of effort was commensurate with the health and safety significance. The Program

dispatched inspectors for on-site investigations when appropriate. Actions were coordinated with

other agencies, as appropriate.

The Program followed written procedures for responding to events. The procedures addressed

the actions to be taken upon the notification of an event, the event tracking system, event

evaluation and investigation, documentation, notification to the NRC Operations Center, and the

reporting of events to the NMED. The team noted minor deficiencies in the casework, as noted in

the casework in Appendix E.

The team noted that the Program has copies of the Handbook to the Office of State and Tribal

Programs (STP) Procedure SA-300, “Reporting Material Events.” The Program sent copies of all

event reports to the NMED contractor. The team noted, however, that the staff member

responsible for entry of incidents into NMED retired in May 2001. The Program Manager

identified a staff member to take over this responsibility who subsequently completed training in

August 2001.

During the review period the Program received one allegation, which was fully investigated. The

casework indicated that the Program took prompt and appropriate action in response to the

concerns raised. The allegation was appropriately closed by letter to the alleger. There were no

performance issues identified from the review of the allegation file and documentation. 

Procedurally, allegations are treated and documented in the same manner as events. The

Program can protect an alleger’s identity. 

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico’s

performance with respect to the indicator, Response to Incidents and Allegations, be found

satisfactory.

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. New Mexico's Agreement does not cover the sealed source and
New Mexico Final Report Page 9

device evaluation program or uranium recovery operations, so only two non-common performance

indicators were applicable to this review.

4.1 Legislation and Program Elements Required for Compatibility

4.1.1 Legislation 

The laws of the State of New Mexico are posted on the Lexlaw Internet web site. The team had

the opportunity to review the statutes applicable to radiation control, along with the Program’s

responses to the questionnaire. 

The team determined that the New Mexico Radiation Protection Act authorizes the Board and the

Department, through the Governor, to enter into the agreement with the NRC. The law

designates the Board as the radiation control agency for the State of New Mexico, with the

Department carrying out the day-to-day responsibilities. This law was previously reviewed and

found consistent with the IMPEP criteria, so the team did not evaluate it further.

Senate Bill 163, as amended, passed in 2000, establishing a radiation protection fund for the

deposit of fees collected. The previous law required fee money collected to be deposited into the

State General Fund. Use of the new dedicated fund is exclusive to the Program. Unused monies

carry over for use in succeeding fiscal years. Money in the fund may be used for any authorized

activity of the Program.

4.1.2 Program Elements Required for Compatibility 

The New Mexico Rules for Radiation Protection apply to all ionizing radiation, whether emitted

from radionuclides or devices. New Mexico requires a license for possession, and use, of all

radioactive material including naturally occurring materials, such as radium, and acceleratorproduced radionuclides. 

The review team interviewed Program staff and examined the procedures used to adopt rules. 

Members of the public and other interested parties are offered an opportunity to comment on

proposed rules. The team found that the process was unchanged during the review period,

however, a new required format for draft rules was implemented. Reformatting previously drafted

rules impacted the resources of the Program. 

The draft rules are first reviewed by the Council. With consent of the Council, the Program

proposes adoption of the draft rules. The Council must approve all rule changes before the

process for rule promulgation can proceed. 

Public notice of proposed new or revised rules is given at least 60 days prior to a public hearing

before the Board. When the Board approves the proposed rules, they are filed with the Secretary

of Sate and become effective in 30 days. The Program sends the proposed rules to NRC when

they are publicly noticed. Final rules are sent to NRC after they are filed with the Secretary of

State. The Program maintains documentation of transmitting the draft and final rules to NRC.

The team evaluated New Mexico’s responses to the questionnaire, reviewed the status of

regulations required to be adopted by the State under the Commission’s adequacy and
New Mexico Final Report Page 10

compatibility policy, and verified regulation status with data obtained from the Office of State and

Tribal Programs’ Regulation Assessment Tracking System. The team found five rules that should

have been, but were not adopted within three years after the equivalent NRC rule became

effective. The team notes that the Program chose to delay adoption of those regulations in part to

apply resources to the development of a fee regulation instead. Discussions with program staff

during this review indicated a good awareness of recently adopted rules. The overdue rules were

drafted prior to the review. They are scheduled to be sent to the Council along with the proposed

fee rule, and expected to be effective in spring of 2002. Current NRC policy requires that

Agreement States adopt certain equivalent rules or legally binding requirements no later than

three years after they are effective.

The overdue rules are:

• “Resolution of Dual Regulation of Airborne Effluents of Radioactive Materials; Clean Air

Act,” 10 CFR Part 20 amendment (61 FR 65119) that became effective January 9, 1997.

The review team noted that this rule when promulgated will apply to all New Mexico

licensees. However the Program determined that there are no licensees that need to

report emissions exceeding 10 mrem per year under the requirements established by this

rule.

• “Recognition of Agreement State Licenses in Areas Under Exclusive Federal Jurisdiction

Within an Agreement State,” 10 CFR Part 150 amendment (62 FR 1662) that became

effective February 27, 1997.

• “Licenses for Industrial Radiography and Radiation Safety - Requirements for Industrial

Radiography Operations,” 10 CFR Parts 30, 34, 71, and 150 amendments (62 FR 28948)

that became effective June 27, 1997.

The Program is using license conditions as legally binding alternatives to rulemaking. The

Program did not submit a copy of the conditions for NRC review following STP Procedure

SA-201 when it began using the conditions. Copies of the conditions were included with

the comments provided by the Department on the draft of this report and are under review.

• "Deliberate Misconduct by Unlicensed Persons," 10 CFR Parts 30, 40, 61, 70, and 150

amendments (63 FR 1890 and 63 FR 13773) that became effective February 12, 1998.

This rule was reviewed by the Department’s legal staff which determined that the Program

has authority to act under statutory provisions.

• “Exempt Distribution of a Radioactive Drug Containing One Microcurie of Carbon-14

Urea,” 10 CFR Part 30 amendment (62 FR 63634) that became effective January 2, 1998.

The Program determined that a license is not required for the indicated use of this

material. The Program further stated that only one inquiry about using the material has

been received, and no known facility or individual in New Mexico is using it. 
New Mexico Final Report Page 11

The review team recommends that the State adopt the regulations, or other legal binding

requirements, which are overdue for adoption.

The following rules are not yet due. The Program is in the process of adopting them, and expects

them to be effective in Spring of 2002. 

• “License for Industrial Radiography and Radiation Safety Requirements for Industrial

Radiographic Operations; Clarifying Amendments and Corrections,” 10 CFR Part 34

amendment (63 FR 37059) that became effective July 9, 1998.

• “Minor Corrections, Clarifying Changes, and a Minor Policy Change,” 10 CFR Parts 20,

32, 35, 36, and 39 amendments (63 FR 393477 and 63 FR 45393) that became effective

October 26, 1998.

• “Transfer for Disposal and Manifest; Minor Technical Conforming Amendments,” 10

CFR Part 20 amendment (63 FR 50127) that became effective November 20, 1998.

The following regulations will become due in the future and are included here to assist the State in

including them in future rulemakings or by adopting alternate generic legally binding requirements:

• "Respiratory Protection and Controls to Restrict Internal Exposures," 10 CFR Part 20

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

• "Energy Compensation Sources for Well Logging and Other Regulatory Clarifications," 10

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

• "New Dosimetry Technology," 10 CFR Parts 34, 36, and 39 amendments (65 FR 63749

and 66 FR 1573) that became effective January 8, 2001.

Based on the IMPEP evaluation criteria, the review team recommends that New Mexico’s

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

During the 1997 IMPEP review, the team noted that the Program rarely performed SS&D

evaluations. On January 1, 1998, the Governor formally returned the authority for the SS&D

evaluation program, and the Program did not perform any evaluation in 1997. Accordingly, the

team did not review this indicator.

4.3 Low-Level Radioactive Waste (LLRW) Disposal Program

In 1981, the NRC amended its Policy Statement, "Criteria for Guidance of States and NRC in

Discontinuance of NRC Authority and Assumption Thereof by States Through Agreement" to allow

a State to seek an amendment for the regulation of LLRW as a separate category. Those States

with existing Agreements prior to 1981 were determined to have continued LLRW disposal

authority without the need of an amendment. Although New Mexico has LLRW disposal authority,
New Mexico Final Report Page 12

NRC has not required States to have a program for licensing a LLRW disposal facility until such

time as the State has been designated as a host State for a LLRW disposal facility. When an

Agreement State has been notified or becomes aware of the need to regulate a LLRW disposal

facility, they are expected to put in place a regulatory program which will meet the criteria for an

adequate and compatible LLRW disposal program. There are no plans for a LLRW disposal

facility in New Mexico. Accordingly, the review team did not review this indicator.

5.0 SUMMARY

As noted in Sections 3 and 4 above, the review team found New Mexico’s performance to be

satisfactory for all six performance indicators reviewed. Accordingly, the review team

recommended and the MRB concurred in finding the New Mexico Agreement State program to be

adequate to protect public health and safety and compatible with NRC's program. Based on the

results of the current IMPEP review, the next full review will be in approximately four years.

Below is the recommendation, as mentioned earlier in the report, for evaluation and

implementation, as appropriate, by the Program. 

RECOMMENDATION:

1. The team recommends that the State adopt the regulations, or other legally binding

requirements, which are overdue for adoption. (Section 4.1.2)
LIST OF APPENDICES AND ATTACHMENTS

Appendix A IMPEP Review Team Members

Appendix B New Mexico Organization Charts

Appendix C Inspection Casework Reviews

Appendix D License Casework Reviews

Appendix E Incident Casework Reviews

Attachment August 17, 2001 Letter from Mike Koranda

New Mexico’s Response to the Draft IMPEP Report
APPENDIX A

IMPEP REVIEW TEAM MEMBERS

Name Area of Responsibility

Richard Blanton, STP Team Leader

Legislation and Program Elements 

 Required for Compatibility

Linda McLean, Region IV Status of Materials Inspection Program

Technical Quality of Inspections

Inspection Accompaniments

Teresa Darden, Region I Technical Quality of Licensing Actions

Michael Stephens, Florida Technical Staffing and Training

Response to Incidents & Allegations
APPENDIX B

New Mexico

Environment Department

ORGANIZATION CHARTS

ML012010190



ATTACHMENT

August 17, 2001 Letter from Mike Koranda

New Mexico’s Response to Draft IMPEP Report

ML012330368
GARY E. JOHNSON 

GOVERNOR 

August 17,2001 

State of New Merico 

EAWRONMENT DEPARTMENT 

Radiation Control Bureau 

Sanra Fe, New Mexico 8 7502-61 IO 

Telephone (SOS) 476-3236 

Fax (SOS) 476-3232 

I190 St. Francis Drive P.O. Box 26110 

Paul H. Lohaw, Director 

Office of State and Tribal Programs 

U.S. Nuclear Regulatory Commission 

Washington, D.C. 20555-0001 

RE: On-Site IMPEP Review-New Mexico, June 18-22,2001, 

State Program Response to Draft Report. 

PETER MAGGIORE 

SECRETARY 

PAUL R. RmMA 

DEPUTYSECR&TARY 

0 

Dear Mr. Lohaus: 

This letter contains the response of the Radiation Control Bureau (RCB) of the 

New Mexico Environment Department (Department) to the WEP team’s 

preliminary findings of program adequacy and compatibility for consideration by 

the Management Review Board. The RCB appreciates NRC’S comments and 

recommendations pertaining to improvements in the New Mexico materials 

program. The implementation of the NRC’s recommendations made pursuant to 

the WEP Review in July 1997 have resulted in improvement to this program. 

Following are the Department’s responses keyed to the review team’s findings 

and recommendations. 

1. The team recommends that the program submit copies of the three rules 

adopted in 1997 but not submitted for review by NRC, and copies of license 

conditions used as legally binding alternatives to rulemaking, for evaluation 

by NRC foliowing STP procedure SA-201. 

1. Response: The RCB has not yet adopted the complete rules pertaining 

to ‘Terformance Requirements for Radiography Equipment,” 10 CFR Part 34 

amendment (60 FR 28323)-that became effective June 30, 1995; the de 

pertaining to ‘Resolution of the Radioactive Materials, Clean Air Act;” 10 

CFR Part 20 amendment (61 FR 65119) that became effective January 9, 

1997; or the rule p-g to “Recognition of Agreement State Licenses in 

Areas Under Exclusive Federal Jurisdiction Within an Agreement State,” 10 

CFR Part 150 amendment (62 FR 1662) that became effective February 27, 

1997. 

ML012330368 
Mr. Lohaus, Director 

August 17,2001 

Page 2 

2. 

On August 1, 2001, the RCB provided the NRC With the Department’s 

proposed rules pertaining to ‘‘Performance Requirements for Radiography 

Equipment.” These proposed rules have been placed on the agenda for 

consideration by the New Mexico Radiation Technical Council (RTAC), at 

their September 14,2001, meeting. These proposed rules will hopellly be 

approved by the RTAC, go before the Environmental Improvement Board 

(EIB) for public hearing, and become effective before the end ofthe calendar 

year. The RCB adopted the equivalent of NRC’s 34.20 (a) in May 1995. In 

the absence of rule adoption for the NRC’s 34.20 (a) 2 and 34.20 (e), the 

RCB has used the following license conditions to address these requirements: 

A. Engineering analyses may be submitted by an applicant or licensee to 

demonstrate the applicability of previously perfonned testing of 

similar individual radiography components. Upon review, the 

Department may find this an acceptable alternative to actual testing of 

the component pursuant to the referenced standard. 

B. Equipment used in industrial radiographic operations need not comply 

with Section 8.9.2 (c) of the Endurance Test in American National 

Standards Institute N432-1980, if the prototype equipment has been 

tested using a torque value representative of the torque that an 

individual using the radiography equipment can realistically exert on 

the lever or crankshaft of the drive mechanism. 

The rule pertaining to the ‘Resolution of Dual Regulation of Airborne 

Emuents of Radioactive Materials; Clean Air Act” will be adopted no later 

than Spring 2002. The RCB cmently regulates no licensee which would fall 

under this rule. 

The RCB will likewise adopt the rule pertaining to “Recognition of 

Agreement State Licenses in Areas Under Exclusive Federal Jurisdiction 

Within an Agreement State” no later than Spring 2002. 

An overdue rule is ‘’Deliberate Misconduct by Unlicensed Persons,” 10 CFR 

Parts 30,40,61,70, and 150 amendments (63 FR 1890 and 63 FR 13773) that 

became effective February 12,1998. 

, 

2. Response: The overdue rule “Deliierate Misconduct by Unlicensed 

Persons,” 10 CFR Part 30,40,61,70, and 150 amendments (63 FR 1890 and 

63 FR 13773) has been detennined by the Deparhnent’s Office of General 

Counsel to be covered by existing statutory provisions. The Department has 
Mr. Lohaus, Director 

August 17,2001 

Page 3 

the authority to bring criminal penalties or civil actions against any person 

violating Department regualtions (see attached statute, Environmental 

Improvement Act). 

3. An overdue rule is “Exempt Distribution of Radioactive Drug Containing One 

Microcurie of Carbon-14 Urea,” 10 CFR Part 30 amendment (62 FR 63634) 

that became effective January 2,1998. 

3. Response: Although one medical licensee made an initial inquiry about 

using one mkrocurie of carbon-14 urea in testing for the active presence of 

Helicobacter pylori, the Department is unaware of any individual or facility 

that has ever utilized this method of detection. This one inquiry was 

addressed by explaining to the individual that no license is required for in vivo 

diagnostic use of this radioisotope. 

The Department and the RCB wish to assure NRC that work has begun on 

bringing state radiation protection regulations into full compatibility with NRC 

requirements, and that full compatibility should be attained by Spring 2002. 

Please contact the RCB should you require fiuther assistance or Sonnation. 

Sincerely, h 

kike Koranda, Director 

Field Operations Division 

New Mexico Environment Department 

Enc. 

C.C. Richard Blanton, Office of State and Tribal Programs, U.S. NRC 

Linda McLean, State Agreements Program, U.S. NRC, Region IV 

Peter Maggiore, Cabinet Secretary, New Mexico Environment Department 
GENERAL PROkTSIONS 74-1-10 

Mexico Environmental Improvcmcnt Boad’see 17 

Nat. Resources J. 521 (1977). 

6U Am. Jur. 2d Pollution Control 0 4. 

39A C.J.S. Hdth and EnvirOnment 55 138, 342. 

who violates any regulation of the board is guilty of a petty misdemeanor. 

oes not apply to any regulation for which a criminal penalty is otherwise 

basis of any information, the secretary determines that a person has 

or threatens to violate any provision of Paragraph (2) or (3) of 

8 or any rule, regulation or permit condition 

ereunder, the secretary may: 

e order stating with reasonable specificity the nature of the 

compliance immediately or within a specified 

any past or current violation, or both; or 

ct court for appropriate relief, including a 

or permanent injunction. 

B of this section may include suspension or 

of any permit! issued by the department. Any penalty assessed in the order, 

residential on-site liquid waste systems, shall not exceed one thousand dollars 

ed in the order for a residential on-site liquid 

dollars ($100) for each violation. A penalty 

ons 20 NMAC 7.1 or permit conditions shall 

one thousand dollars ($1,000) per violation per day. In assessing the penalty, the 

s of the violation and any good-faith efforts 

within the time specified in the compliance 

s avil penalties of not more than one thousand dollars ($1,000) for each 

suspend or revoke any permit issued to the violator pursuant to Paragraph (3) of 

ess, no later than thirty 

a written request to 

duct a hearing. The 

r the hearing. The 

.e 

ce with the order; and 

section, the secretary may issue 

s and the production of relevant 

rules for discovery procedures. 

ations or permit conditions 

regulations 20 NMAC 7.1 

of Section 74-1-8 NMSA 

be deposited in the state treasury to the credit of the water conservation fund. 

11