December 20, 2002

Mr. Robert Leopold, Director

Public Health Assurance Division

Regulation and Licensure

Nebraska Health and Human Services System

301 Centennial Mall South, 3rd Floor

Lincoln, NE 68509

Dear Dr. Leopold:

On December 16, 2002, the Management Review Board (MRB) met to consider the proposed

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

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

health and safety and compatible with the Nuclear Regulatory Commission’s program. No

recommendations were made for the State by the review team.

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. We

appreciate your continued support for the Radiation Control Program and the excellence in

program administration demonstrated by your staff as is reflected in the team’s findings. I look

forward to our agencies continuing to work cooperatively in the future.

Sincerely,

/RA/ Paul Lohaus for

Carl J. Paperiello 

Deputy Executive Director 

 for Materials, Research and State Programs

Enclosure:

As stated

cc: Julia A. Schmitt, Program Manager

X-Ray/Radioactive Materials/Emergency Response

Pearce O’Kelley, SC

OAS Liaison to MRB
December 20, 2002

Mr. Robert Leopold, Director

Public Health Assurance Division

Regulation and Licensure

Nebraska Health and Human Services System

301 Centennial Mall South, 3rd Floor

Lincoln, NE 68509

Dear Dr. Leopold:

On December 16, 2002, the Management Review Board (MRB) met to consider the proposed

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

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

health and safety and compatible with the Nuclear Regulatory Commission’s program. No

recommendations were made for the State by the review team.

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. We

appreciate your continued support for the Radiation Control Program and the excellence in

program administration demonstrated by your staff as is reflected in the team’s findings. I look

forward to our agencies continuing to work cooperatively in the future.

Sincerely,

/RA/Paul Lohaus for

Carl J. Paperiello 

Deputy Executive Director 

 for Materials, Research and State Programs

Enclosure:

As stated

cc: Julia A. Schmitt, Program Manager

X-Ray/Radioactive Materials/Emergency Response

Pearce O’Kelley, SC

OAS Liaison to MRB

Distribution:

DIR RF DCD (SP01) PDR (YES/) bcc: Chairman Meserve

KSchneider, STP MVirgilio, NMSS Commissioner Dicus

LRakovan, STP KCyr, OGC Commissioner Diaz

AMauer, STP FCameron, OGC Commissioner McGaffigan

OSiurano, STP/ASPO TCombs, OCA (2 copies) Commissioner Merrifield

DCool, NMSS/IMNS STreby, OGC

RStruckmeyer, NMSS/IMNS JLieberman, OGC

LMcLean, RIV ISchoenfeld, EDO

JZabko, STP Nebraska File

RGallagher, MA

DOCUMENT NAME: G:\IMPEP\2002 NE Final Report and Letter1.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 RI STP:DD STP:D DEDMRS

NAME DWhite:kk

(LJRakovan for)

JMPiccone PHLohaus PLohaus for

CJPaperiello

DATE 12/17/02 12/17/02 12/18/02 12/20/02

 OFFICIAL RECORD COPY
INTEGRATED MATERIALS PERFORMANCE EVALUATION PROGRAM

REVIEW OF NEBRASKA AGREEMENT STATE PROGRAM

SEPTEMBER 17-20, 2002

 FINAL REPORT

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

1.0 INTRODUCTION

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

review was conducted during the period September 17-20, 2002, by a review team consisting

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

Agreement State of Massachusetts. 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 September 26, 1998 to

September 20, 2002, were discussed with Nebraska management on September 20, 2002.

A draft of this report was issued to Nebraska for factual comment on October 24, 2002. The

State responded by letter dated December 3, 2002. The Management Review Board (MRB)

met on December 16, 2002 to consider the proposed final report. The MRB found the

Nebraska radiation control program was adequate to protect public health and safety and

compatible with NRC’s program.

The Nebraska Agreement State program is administered by the Emergency Response,

Radioactive Materials and X-Ray Program (the Program) in the Department of Health and

Human Services (the Department). The Program Manager reports to the Section Administrator

for Consumer Health Services, who reports to the Division Director for Public Health

Assurance, who in turn reports to the Director of Regulation and Licensure. The Director of

Regulation and Licensure is a member of the Policy Cabinet for the Health and Human

Services System that reports to the Governor. Organization charts for the Department and the

Program are included in Appendix B. At the time of the review, the Nebraska Agreement State

program regulated 141 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 Nebraska. 

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

performance indicators was sent to the Program on June 5, 2002. The Program provided a

response to the questionnaire on August 26, 2002. A copy of the questionnaire response can

be found on NRC’s Agencywide Document Access and Management System using the

Accession Number ML022980351.

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

Nebraska’s responses to the questionnaire; (2) review of applicable Nebraska statutes and

regulations; (3) analysis of quantitative information from the radiation control program licensing

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

(5) field accompaniments of a Program inspector; and (6) interviews with staff and

management to answer questions or clarify issues. The review 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 Nebraska

Agreement State program’s performance.
Nebraska Final Report Page 2

Section 2 below discusses the State’s 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. 

2.0 STATUS OF ITEMS IDENTIFIED IN PREVIOUS REVIEWS

During the previous IMPEP review, which concluded on September 25, 1998, six

recommendations were made and transmitted to Gina Dunning, Director, Regulation and

Licensure, Nebraska Health and Human Services System on December 30, 1998. The team’s

review of the current status of the recommendations is as follows:

1. Because of the importance of the development and implementation of critical

procedures relative to the performance of the staff and the performance indicators, the

team recommends that the State initiate appropriate actions needed to complete the

development and implementation of the previously identified procedures that are critical

to the performance of the program. The State should provide the revised schedule to

NRC and copies of the procedures as they are completed. (Section 2.0)

Current Status: The State revised the schedule and provided copies of the procedures

important to the performance of the program to the NRC for review. All applicable

procedures have been completed and reviewed by the NRC. This recommendation is

closed.

2. The team recommends that staff who conduct independent inspections and/or license

reviews of pool irradiators, teletherapy and brachytherapy complete the irradiator

course and teletherapy and brachytherapy courses. (Section 3.3) 

Current Status: All staff have completed the teletherapy/brachytherapy course and two

inspectors have also successfully completed the irradiator course. This

recommendation is closed.

3. The review team recommends that the State add the inventory license condition to all

applicable licenses, within the next year. (Section 3.4)

Current Status: The license condition has been added to all applicable licenses

reviewed by the team. This recommendation is closed.

4. The review team recommends that the allegation records clearly state the basis for the

findings and outcome of the investigation, and that the alleger be informed of the

outcome of the investigation. (Section 3.5)

Current Status: The allegation procedure has been completed and reviewed by the

NRC. The procedure includes provisions for documenting the basis for findings and

outcome of investigation and informing the alleger of the outcome. The review team

noted that both allegations reviewed followed the Program’s procedure. This

recommendation is closed.
Nebraska Final Report Page 3

5. The review team recommends that the Program management effect rulemaking

activities to ensure that NRC rule changes are adopted within the specified 3 year time

period. (Section 4.1.2)

Current Status: The Department adopted eight NRC amendments by rulemaking that

became effective in December 1998 and May 2000. The only NRC amendment not

adopted within the three-year period has been drafted and is currently undergoing legal

review. Final adoption is expected in 2003. This recommendation is closed.

6. The team recommends that the Nebraska Department of Environmental Quality 

prepare, or adopt by reference, a procedure for managing allegations. (Section 4.3.4)

Current Status: In January 1999, the Governor signed legislation that withdrew the

State from the Central Interstate Low-Level Radioactive Waste Compact. 

Subsequently, the low-level radioactive waste (LLRW) programs in the Department and

the Nebraska Department of Environmental Quality were terminated and the staffs

reassigned. Consequently, the Department of Environmental Quality no longer has a

need for an allegation procedure. This recommendation is closed.

During the 1998 review, two suggestions were made for the Program to consider. The review

team determined that the Program 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 review team focused on four factors in reviewing the status of the materials inspection

program: inspection frequency, overdue inspections, initial inspections of new licensees, and

timely dispatch of inspection findings to the licensees. The review team’s evaluation is based

on the Program’s questionnaire responses relative to this indicator, data gathered from reports

generated from the licensee database, examination of completed licensing and inspection

casework, and interviews with the management and staff. 

The procedure entitled “Radioactive Materials Program Procedure No. 3.01," dated February 19,

1999, establishes the basis for the State’s inspection program. This procedure follows the

guidelines established in the NRC Inspection Manual Chapter (IMC) 2800.

The licensee database contains sufficient information for proper management of the inspection

program. The Program performs approximately 50 inspections per year. The review team

noted that the Program is performing inspections of materials licensees on an unannounced

basis, except for initial inspections. 
Nebraska Final Report Page 4

During the review, the team noted that one core inspection was conducted two months late.

The Program Manager informed the team that the inspection of this industrial radiography

licensee was delayed in order to observe the licensee performing work. The licensee did not

have material or personnel in the State and did not perform work during the winter months. 

The licensee was inspected during their first use of licensed material in the Spring. The team

found this approach acceptable.

During the review, the team noted that eight initial inspections were conducted late during the

first half of the review period, 1998-1999. The Program has since established procedures for

ensuring timely initial inspections. The Program reviews the status of each initial license

biweekly and periodically calls the licensee during the first six months following license issue. 

New licensees are required by license condition to inform the Agency in writing when activities

authorized by the license are initiated. If material is not received during the first six months,

the periodic phone calls continue and an inspection is scheduled during the next six-month

period. There were 23 initial inspections performed from January 2000 to September 2002, all

within the scheduled intervals for new licensees. The Program currently has no overdue initial

inspections. 

The Program does not allow possession of materials in the State under reciprocity without a

written request, the completion of a reciprocity license checklist and the payment of a fee. The

Program maintains a data base of recurring reciprocity licensees as well as one time

reciprocity licensees to aid in the management of these licensees. The Program uses this data

base to maintain a daily list of all of the reciprocity licences operating in the State and to

schedule inspections. During the review, the review team noted that all the inspections of

Priority 1, 2 and 3 licensees granted reciprocity met the goals indicated in June 2002 revision

to IMC 1220. 

Fifteen inspection files were reviewed for timeliness for issuing inspection findings. All

inspection reports are signed by the inspector except for those involving escalated

enforcement which are signed by the Department’s legal council. For the sample of reports

examined by the review team, all inspection reports were signed and transmitted within 30

days.

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

performance with respect to the indicator, Status of 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 20 materials inspections conducted during the review

period. The casework reviewed included inspections performed by six different materials

license inspectors. Inspection casework reviewed covered inspections of various types

including: industrial radiography; nuclear medicine, high dose rate remote afterloading (HDR)

therapy; fixed and portable gauges; mobile nuclear medicine; broad scope academic and

medical; educational, instruction only; irradiator, self-shielded less than 10,000 curies;

panoramic pool irradiator; and reciprocity (service, industrial radiography, and well logging). 
Nebraska Final Report Page 5

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 a licensee’s radiation protection program. Inspection reports were thorough,

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

performance with respect to health and safety by the licensee. The documentation adequately

supported the cited violations, recommendations made to licensees, unresolved safety issues,

and discussions held with the licensee during exit meetings. Team inspections were

performed when appropriate.

During the review period, the Program Manager accompanied all individuals who performed

materials inspections. The accompaniment reports contained sufficient details to document

the areas covered. The accompanied inspector is provided a copy of the accompaniment

report in his personnel file and receives an oral report of his performance. 

The review team accompanied one materials inspector on June 26 and 27, 2002. The

accompaniment included inspections of facilities licensed for portable gauges and nuclear

medicine and HDR. The facilities inspected are identified in Appendix C. During the

accompaniments, the inspector demonstrated appropriate performance based inspection

techniques and knowledge of the regulations. The inspector was well prepared and thorough

in his reviews of the licensees' radiation safety programs. The inspections were adequate to

assess radiological health and safety at the licensed facilities.

The Program maintains a sufficient number and variety of survey instruments to perform

radiological surveys of materials licensees as well as for responding to incidents and

emergency conditions. The review team examined the Program’s instrumentation and

observed that the survey instruments were calibrated and operable. Inspectors obtain

calibrated instruments from the office for each inspection. The Program contracts several

licensed calibration service companies to perform the calibration of survey instruments on an

annual basis.

The Program receives support from local university radiation safety offices, which can perform

sample counting and assay services. In addition, the Program has contracted with

Environmental, Inc. Midwest Laboratory, Northbrook, Illinois, for analyses of radiological

samples. Discussions with Program staff established that the support is timely and

dependable.

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

performance with respect to the indicator, Technical Quality of Inspection, 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
Nebraska Final Report Page 6

indicator, interviewed Program management and staff, reviewed job descriptions and training

records, and considered any possible workload backlogs. 

Program staffing was relatively stable over the review period. Two staff members left and one

staff member transferred to the x-ray program. The staff consists of experienced personnel. 

All of the technical staff have bachelor degrees. The materials program has four technical

positions, including the Program Manager, as noted in Appendix B. Currently, the Program

has no vacant positions. 

In addition to the four materials staff members, the Program has two x-ray inspectors, one

health physics assistant, and one clerical position. The Program Manager reports to the

Consumer Health Services Section Administrator. The Section Administrator spends about

20% of her time in radioactive materials licensing and inspection activities. The review team

noted that the Program has experienced stable funding during the review period. Licensee

fees support the program. 

Training and qualification requirements for the radioactive materials staff are established in a

procedure dated February 2, 1999. The procedure sets forth essentially the same training and

qualification recommendations developed by the IMC 1246. Inspector requirements include

NRC, or equivalent, core training courses when available. Inspectors are also required to be

accompanied by a senior staff member on an inspection prior to authorizing the inspector to

perform an independent inspection. 

All technical staff members have taken the NRC courses deemed appropriate for their tasks. 

In addition, the review team noted that the Program Manager has attended several NRC

training courses. The training records demonstrate that program management is committed to

training for the staff. The review team concluded that the Program has a well balanced staff,

and a sufficient number of trained personnel to carry out regulatory duties. 

The Nebraska Board of Health reviews proposed rules and regulations for the use of

radioactive material as part of their duties. Under the State’s law, members are required to

declare in writing any matter requiring action or decision that may cause a potential conflict. A

member may abstain from activities in which the potential conflict exists. 

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

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

satisfactory.

3.4 Technical Quality of Licensing Actions

The review team interviewed license reviewers, evaluated the licensing process, and examined

licensing casework for 15 specific licenses. Licensing actions were reviewed for

completeness, consistency, proper radioisotopes and quantities, qualifications of authorized

users, adequate facilities and equipment, adherence to good health physics practices, financial

assurance, operating and emergency procedures, appropriateness of the license conditions,

and overall technical quality. The casework files were also reviewed for timeliness, use of

appropriate deficiency letters and cover letters, reference to appropriate regulations, product

certifications, supporting documentation, consideration of enforcement history, pre-licensing
Nebraska Final Report Page 7

visits, supervisory review as indicated, and proper signatures. 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

which were completed during the review period. The cross-section sampling focused on the 

new licenses, amendments, renewals, and licenses terminated during the review period. The

sampling included the following types: wet storage panoramic irradiator, self-shielded

irradiator, stereotactic surgery (gamma knife), academic broad scope, research and

development, manufacturing, industrial radiography, portable gauge, nuclear medicine,

brachytherapy, mobile nuclear medicine, nuclear pharmacy, and teletherapy. Licensing

actions reviewed included three new, five renewals, five amendments and two termination

files. A listing of the casework 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 high 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. The exemptions noted in the questionnaire responses were determined to

be appropriate and well documented by license conditions.

Licensing actions are assigned to one of the license reviewers along with a priority based on

the type of action. Once the reviewer completes the action, a second review is performed by

one of the other license reviewers. Each licensing action is documented on a “License Action

Review Record” which includes detailed preparer and reviewer notes, a description of the

action, correspondence included in the licensing action, and administrative information. The

Program generates licenses utilizing an internally developed database with standardized

conditions and format. All licenses are signed by either the Program Director or the Section

Administrator. The State issues licenses for a five-year period under a timely renewal system,

utilizes internally developed licensing guides (supplemented by NRC licensing guides) and

policies as appropriate, uses standard licensing conditions, and issues a complete license for

each licensing action.

A review of termination actions taken over the review period showed that nearly all of the

terminations were for licensees possessing only sealed sources or for uses of

radiopharmaceuticals with short half lives. The review team found that terminated licensing

actions were well documented, showing appropriate transfer records or appropriate disposal

methods and records, confirmatory surveys, and survey records. In discussions with the

Program Manager, the review team noted that there were no major decommissioning efforts

underway with regard to Agreement material in Nebraska.

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

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

satisfactory.
Nebraska Final Report Page 8

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 responses to the questionnaire relative to this indicator,

reviewed the incident reports for Nebraska in the Nuclear Materials Event Database (NMED)

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

documentation for 12 incidents. A list of the incident casework examined with case-specific

comments is included in Appendix E. The review team also reviewed the Program’s response

to two allegations involving radioactive material. One allegation was referred to the Program

by the NRC during the review period. 

The incidents selected for review included the following event categories: loss of control (lost,

abandoned, or stolen radioactive material), radiation overexposure, transportation, equipment

problems, and medical events. The review team found that the Program’s response to

incidents was complete and comprehensive. Initial responses were prompt and wellcoordinated, and the level of effort was commensurate with the health and safety significance. 

The Program dispatched inspectors for onsite investigations when appropriate, and took

suitable enforcement and follow-up actions.

The responsibility for initial response and follow-up actions to materials incidents may be

assigned to any member of the materials program. Upon receipt, staff reviews the report,

decides on the appropriate response, and gives the report a unique tracking number. 

Documentation related to an incident is placed in the appropriate license file. 

The review team identified 12 incidents in NMED for Nebraska during the review period. The

Program’s incident procedure adopted the NRC’s “Handbook on Nuclear Material Event

Reporting in the Agreement States” reporting requirements for incidents. The review team

noted that all events (requiring 24-hour notification) and routine and/or event updates

(requiring 30-day notification) were reported to the NRC Operations Center or to NMED. 

It was noted that the Program received and was using the latest NMED software by all staff

members who had completed the new NMED software training. The Program uses the NMED

software to track all radioactive material incidents, including non-Agreement material events. 

However, the review team found that 10 Agreement material events and four non-Agreement

material events reported to the NMED contractor during the review period were not in the

database. Nine of the Agreement material events not entered were lost exit signs, and one

was a lost gauge. Three non-Agreement material events were lost generally licensed radium

sources and one was a stolen x-ray fluorescence device containing cobalt-57. All events are

required to be entered into NMED by the contractor if provided by the State in accordance with

Commission policy. In addition, it was noted that there were many errors in the information

entered into the database by NRC’s contractor (e.g., wrong event dates, wrong site of event,

and missing information, etc.). The review team recommends that NRC’s Office of Nuclear

Material Safety and Safeguards review the contractor’s procedure for inputting NMED data and

review the database information for accuracy and completeness. 

In evaluating the effectiveness of Nebraska's actions responding to allegations, the review

team examined the Program’s questionnaire responses relative to this indicator, and the

Program’s Procedure No. 4.01, “Management of Allegations.” The casework for two
Nebraska Final Report Page 9

allegations was reviewed, one was referred to the State by the NRC and one was reported

directly to the State. The Program evaluates each allegation and determines the proper level

of response. The review of the casework and the files indicated that the Program took prompt

and appropriate action in response to the concerns raised. Each of the allegations reviewed

were appropriately closed, and the alleger was informed of the results. There were no

performance issues identified from the review of the casework documentation. 

The review team noted that Nebraska’s Public Records Law requires that all public documents

be made available for inspection and copying unless specifically exempted from disclosure. 

The State makes every effort to protect an alleger’s identity, but it cannot be guaranteed. The

State has a “Nondisclosure Statement” that is provided to the alleger when possible, otherwise

the alleger is informed by phone or letter of the degree to which his/her identity can and will be

protected. 

Based on the IMPEP evaluation criteria, the review team recommends that Nebraska'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. Nebraska’s Agreement does not authorize regulation of

uranium recovery activities, so only the first three non-common performance indicators were

applicable to this review.

4.1 Legislation and Program Elements Required for Compatibility

4.1.1 Legislation 

In addition to their response to the questionnaire, the State provided the review team with the

opportunity to review copies of legislation that affect the radiation control program. The

currently effective statutory authority for the Department is contained in Nebraska Radiation

Control Act 71-3501 to 71-3519. The Department of Health and Human Services, Regulation

and Licensure, is the State's radiation control agency. The review team noted that two pieces

of legislation affecting the radiation control program were passed during the review period,

LB-93 and LB-1021.

4.1.2 Program Elements Required for Compatibility 

The Nebraska Regulations for Control of Radiation, Title 180, Nebraska Administrative Code,

applies to all ionizing radiation. Nebraska requires a license for possession and use of all

radioactive material including naturally occurring materials, such as radium, and acceleratorproduced radionuclides. Nebraska also requires registration of all equipment designed to

produce x-rays or other ionizing radiation. A copy of the effective Nebraska regulations,

including the last amendments which became effective as of July 22, 2001 was given to the

review team. 
Nebraska Final Report Page 10

The review team examined the State’s administrative rulemaking process and found that the

process takes approximately 12 months from the development stage to the final filing with the

Secretary of State, after which the rules become effective in five days. The process includes

the development stage, public hearing stage, approval stage, and the filing stage. All rules

and regulations for adoption must be adopted in accordance with the Administrative

Procedures Act, Section 84-901- 84-920 et seq. of the Nebraska Revised Statutes, signed by

the Governor, then filed with the Secretary of State. The public, the NRC, other agencies, and

all potentially impacted licensees and registrants are offered an opportunity to comment during

the process. Comments are considered and incorporated as appropriate before the regulations

are finalized. The State cannot adopt other agency regulations by reference; however, the

State can adopt other requirements such as Title 10 of the Code of Federal Regulations by

attaching the specific regulation, with the effective date to the State’s proposed regulations

during the adoption process. The State has the authority to issue legally binding requirements

(e.g., license conditions) in lieu of regulations until compatible regulations become effective.

The review team evaluated the Program’s responses to the questionnaire, reviewed the status

of regulations required to be adopted by the State under the Commission’s adequacy and

compatibility policy and verified the adoption of regulations with data obtained from the Office

of State and Tribal Program’s (STP) State Regulation Status Data Sheet. Since the previous

IMPEP review, the Department adopted eight amendments in one rule package that became

effective in May 2000. The review team found one amendment, “Deliberate Misconduct by

Unlicensed Persons, (63 FR 1890; 63 FR 13773),” was not adopted within the three-year time

frame established in STP’s Management Directive 5.8. The adoption of this NRC amendment

required changes to the State’s statute and legislative approval. Legislative approval was

delayed a year. The State has drafted regulations to meet the amendment requirements and

the rule is currently under review by the State’s legal counsel. The State plans to send a draft

copy of the rules to STP for review during the public comment period. The review team

reviewed the draft rule and it appears to meet the adequacy and compatibility requirements as

established in STP Procedure SA-200. 

During the review, the team noted that the Program had not submitted five of their adopted

final regulations to NRC for review. The review team reviewed the final rules and they appear

to meet the adequacy and compatibility requirements as established in STP Procedure SA201. Program management agreed to submit these amendments for a review in a timely

manner. In their response to the draft report, the Program noted that the five adopted final

regulations had been sent to the NRC for review.

The Program will need to address the following six regulations in upcoming rulemakings or by

adopting alternate legally binding requirements:

! “Respiratory Protection and Controls to Restrict Internal Exposures,” 10 CFR Part 20

amendment (64 FR 54543; 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.
Nebraska Final Report Page 11

! “New Dosimetry Technology,” 10 CFR Parts 34, 36, and 39 amendments (65 FR

63749) that became effective January 8, 2001.

! “Requirements for Certain Generally Licensed Industrial Devices Containing Byproduct

Material,” 10 CFR Parts 30, 31, and 32 amendments (65 FR 79162) that became

effective February 16, 2001.

! “Revision of the Skin Dose Limit,” 10 CFR Part 20 amendment (67 FR 16298) that

became effective April 5, 2002.

! “Medical Use of Byproduct Material,” 10 CFR 20, 32, and 35 amendments (67 FR

20249) that became effective October 24, 2002.

Based on IMPEP evaluation criteria, the review team recommends that Nebraska’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 review period, no SS&D certificates were issued by the Program and there are

currently no manufacturers of sealed sources or devices in the State. The review team did not

evaluate this indicator further.

4.3 Low-Level Radioactive Waste (LLRW) Disposal Program

At the time of the last IMPEP review, Nebraska was the designated host State in the Central

Interstate Low-Level Radioactive Waste Compact (the Compact) for the LLRW disposal

facility. In December 1998, the State formally denied the application for the disposal facility

based on the hydrological condition of the site and the weak financial condition of the site

operator (U.S. Ecology). In January 1999, the Nebraska legislature passed and the Governor

signed legislation withdrawing Nebraska from the Compact. One of the conditions for

withdrawal from the Compact is to provide other member States five-year notice. 

Subsequently, a total of six lawsuits are currently pending regarding Nebraska’s denial of the

application and withdrawal from the Compact. The first of the lawsuits went to trial in June

2002 with the other members of the Compact suing the State of Nebraska. On September 30,

2002, the judge awarded the plaintiffs 151 million dollars. The State is appealing the judge’s

decision.

After the State’s withdrawal from the Compact, technical staff in the Department and the

Department of Environmental Quality LLRW programs were reassigned to other positions. 

The only action taken by the State during the review period was the formal denial of the

application. The preliminary denial of the application and the technical basis for the denial was

reviewed during the last IMPEP in September 1998. The State identified that there was no

change in conclusions between the draft and final package. Consequently, the review team

did not review this indicator.
Nebraska Final Report Page 12

5.0 SUMMARY

As noted in Sections 3 and 4 above, Nebraska’s performance was found to be satisfactory for

all six performance indicators. Accordingly, the review team recommended and the MRB

concurred in finding the Nebraska Agreement State program adequate to protect public health

and safety and compatible with NRC's program. Based on the results of the current IMPEP

review, the review team recommended and the MRB concurred that the next full review should

be in approximately four years.

RECOMMENDATION:

1. The review team recommends that NRC’s Office of Nuclear Material Safety and

Safeguards review the contractor’s procedure for inputting NMED data and review the

database information for accuracy and completeness. (Section 3.5) 
LIST OF APPENDICES AND ATTACHMENTS

Appendix A IMPEP Review Team Members

Appendix B Nebraska Organization Charts

Appendix C Inspection Casework Reviews

Appendix D License Casework Reviews

Appendix E Incident Casework Reviews

Attachment December 3, 2002 Letter from Robert Leopold

Nebraska’s Response to Draft IMPEP Report
APPENDIX A

IMPEP REVIEW TEAM MEMBERS

Name Area of Responsibility

Duncan White, Region I Team Leader

Technical Quality of Licensing Actions

Robert Gallaghar, Massachusetts Technical Quality of Inspections

Linda McLean, Region IV Technical Staffing and Training

Response to Incidents and Allegations

Inspection Accompaniments

John Zabko, STP Status of Materials Inspection Program

Legislation and Program Elements Required for 

Compatibility
APPENDIX B

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES

ORGANIZATION CHARTS

ML022950306





ATTACHMENT

December 3, 2002 Letter from Robert Leopold

Nebraska’s Response to Draft IMPEP Report

ML023400525