April 4, 2005

Mr. Richard A. Ratliff, P.E., L.M.P.

Radiation Program Officer 

Division of Regulatory Services 

Texas Department of State Health Services 

1100 West 49th St. 

Austin, Texas 78756 

Dear Mr. Ratliff:

An additional periodic meeting with Texas Department of State Health Services (DSHS) was

held on March 15, 2005, as directed by the NRC’s Management Review Board (MRB) on

July 27, 2004. The purpose of this meeting was to review and discuss the status of Texas’

Agreement State Program specific to the activities administered by DSHS including the status

of staffing, vacancies and the reorganization. I have completed and enclosed a general

meeting summary, including any specific actions resulting from the discussions.

If you feel that our conclusions do not accurately summarize the meeting discussion, or have

any additional remarks about the meeting in general, please contact me at (817) 860-8143 or

e-mail VHC@NRC.GOV to discuss your concerns.

Sincerely,

/RA/ Linda McLean for

Vivian H. Campbell

Regional State Agreements Officer

Enclosure:

As stated

cc w/encl

Paul Lohaus, Director, STP
Texas Department

 of State Health Services - 2-

bcc: (via ADAMS e-mail distribution):

PHolahan

CCain

LMcLean

KSchneider, STP

AMcCraw, STP

JZabko, STP

OSiurano, STP

DSollenberger, STP

ADAMS: :Yes 9No Initials: __lm____for vhc__ 

:Publicly Available 9Non-Publicly Available 9Sensitive :Non-Sensitive

DOCUMENT NAME: draft: E:\Filenet\ML050950108.wpd 

 Final: ltrs-memos\ 

RIV:RSAO

VHCampbell

/RA/ LMcLean for 

04/04/2005

OFFICIAL RECORD COPY T=Telephone E=E-mail F=Fax
AGREEMENT STATE PERIODIC MEETING SUMMARY FOR TEXAS

DATE OF MEETING: March 15, 2005

ATTENDEES:

State

Richard Ratliff, Radiation Program Officer

Margaret Henderson

Susan Tennyson, Director, Environmental and Consumer Safety Section

Alice Rogers, Inspection Unit

Tommy Cardwell, Radiation Branch

Ruben Cortez

Bill Silva, Radioactive Materials Group

Bob Free, Environmental Monitoring Group

Cindy Cardwell, Radiation Group, Policy, Standards & Quality Assurance

Ruth McBurney, Radiation Safety Licensing Branch, Regulatory Licensing Unit, 

 Health Care Quality Section

Pete Myers, Radioactive Material Licensing Group

Gary Smith, Technical Assessment Group

Amy Harper, Enforcement Unit

Carol Vetter, Consumer Safety Group

NRC

Vivian Campbell, Regional State Agreements Officer, Region IV

Dennis Sollenberger, Office of State and Tribal Programs

Aaron McCraw, Agreement State Project Officer, Office of State and Tribal Programs 

 (by telephone)

DISCUSSION: 

The 78th Texas Legislative Session passed House Bill 2292 that consolidated four legacy

agencies including the Texas Department of Health into a single department. On September 1,

2004, the Texas Department of State Health Services (DSHS) was created and designated as

the State’s radiation control agency. DSHS consist of four programs including the Division of

Regulatory Services which retains the function of the State’s radiation control program. DSHS is

organized into functional groups rather than in program groups. Under the reorganization, the

Texas Bureau of Radiation Control ceased to exist. The Radiation Program Officer is

designated as the radiation control program director. 

The following is a summary of the meeting held in Austin, Texas, on March 15, 2005, between

representatives of the NRC and DSHS. During the meeting, the topics suggested in a letter

dated January 12, 2005, from Ms. Campbell to Mr. Ratliff were discussed. The discussion

pertaining to each topic is summarized below.
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1. Status of State’s actions to address all open previous IMPEP review findings and/or open

recommendations.

The previous Integrated Materials Performance Evaluation Program (IMPEP) review was

conducted during the period August 27 - 31, 2001. The status of the recommendations

outlined in Section 5.0 of the final IMPEP report was discussed at the periodic meetings

conducted December 2, 2002 and June 8, 2004. The current status of the

recommendations is summarized below.

a. Recommendation: The review team recommends that the Department adhere to

the policy of annual supervisory accompaniments of all qualified inspectors. 

(Section 3.2)

Current Status: Management stated that all annual supervisory

accompaniments were completed at the time of the periodic meeting. The

accompaniments are now being coordinated between the Radioactive Materials

Inspection Manager and the Radiation Policy, Standards and Quality Assurance

Manager. The accompaniments are being split between these groups. The

accompaniments are then rotated the next year so that the entire program is

audited by each group over a 2-year period. It is recommended that this item be

reviewed at the next IMPEP review.

b. Recommendation: The review team recommends that the Department (DSHS)

report all significant and routine events as well as follow-up event information to

the NRC in accordance with the STP Procedure SA-300, “Reporting Material

Events.” (Section 3.5) 

Current Status: As part of the preparation for the periodic meeting, the NRC

staff reviewed all the reportable events that were reported to NMED by DSHS

since the previous IMPEP review. The staff identified 160 events reported by the

State. Of the 160 events, 37 events appear to have been reported late. Twentytwo events were identified as needing additional basic information defined in

Section 3 of SA-300. It should be noted that the NRC staff did not perform a

technical quality completeness review of the events reported. This subject is

discussed in further detail in Item 5 of this document. It is recommended that this

item be reviewed at the next IMPEP review.

c. Recommendation: 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)

Current Status: The three conventional mills have significant groundwater

issues and closure will be a long-term project. However, DSHS staff is continuing

to make progress on development of supporting documentation for these

closures. It is recommended that this item be reviewed at the next IMPEP review.
-3-

The status of the recommendation for NRC is summarized below.

Recommendation: 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. (Section 4.1.2)

Current Status: The NRC convened a working group composed of staff from

NRC and Agreement States to re-evaluate the two-person rule. The working

group completed its work and presented a report to the MRB that contained

several options. On August 16, 2004, the MRB decided to defer any decisions of

Agreement State compatibility pertaining specifically to this regulation in

abeyance until NRC issues a determination on a petition for rulemaking. On

March 8, 2005, the OAS/CRCPD Executive Boards decided that Texas would

prepare a draft petition for rulemaking on the two-person rule to be completed

within 6 months.

2. Strengths and/or weaknesses of the State program as identified by the State or

NRC including identification of actions that could diminish weaknesses. 

a. Program Strengths: DSHS continues to have well trained, experienced, and

dedicated staff members who are often called on as resources by both federal

and other state agencies. DSHS continues to have well-trained staff

specifically dedicated to rulemaking activities, as well as an active and

experienced Radiation Advisory Board. 

b. Program Weaknesses: Staff recruitment and retention remain a significant

challenge for DSHS. At the time of the periodic meeting, DSHS had seven

vacancies in the radiation control program. However, from 2000 to 2004, the

turnover rate for Environmental Specialists in radiation control was 56.1

percent. Positions were vacant on average for 112 days, but some were

vacant for more than 1 year. In 2004, DSHS was able to provide technical

staff a 6.8 percent increase as a retention incentive. DSHS has developed a

recruitment/retention plan that would create a new health physics

classification category at a higher pay scale for technical staff. Management

stated that they expect even more turnover if the new classification is not

approved by the Legislature. As discussed during the 2002 periodic meeting,

DSHS still has the legislative mandated full time equivalent (FTE) cap which

affects their ability to hire staff in a time of increasing workload. 

3. Feedback on NRC’s program as identified by the State and including identification

of any action that should be considered by NRC: 

DSHS management generally expressed concern regarding the perception that

NRC does not listen to the State’s issues. DSHS again discussed issues with

NRC’s interaction with States during emergency preparedness (EP) exercises at
-4-

nuclear power plants. DSHS management acknowledged the need to keep NRC

appraised of current information during an event at a power plant and

understands NRC’s need to communicate with the media in a timely fashion. 

Management outlined two issues to be addressed: 1) should States provide a

dedicated contact person, with no other responsibilities, to answer specific

questions and collect current information, and 2) how can information provided

by NRC to the media be coordinated with the State’s local information center. 

Management indicated that they have discussed these issues with NRC

management at the last CRCPD meeting, but have received no followup.

4. Status of State Program including:

a. Staffing and Training: 

i) Number of staff in the program and status of their training and

qualifications: The radioactive materials (RAM) program is staffed with 56

technical FTE. There are 10 management staff who also perform some

technical functions in addition to their management duties. The

Radioactive Materials Inspection Manager is currently coordinating training

of three new inspectors. Technical staff continue to receive training

through the core NRC courses or their equivalent. DSHS has an out-ofstate travel cap so sending staff out of state to attend training courses is a

challenge. DSHS has arranged to host the Inspection Procedures course

in Austin this fiscal year and is planning to host the Transportation course.

ii) Program vacancies: The RAM program currently has seven vacancies. 

Two are engineering positions in the Technical Assessments Group. 

(DSHS has managed to fill both positions after vacancy periods of

2.5 years for one position and 7 months for the other.) Three are

inspectors in the Radiation Inspection Group. Two are incident

investigators in the Environmental Monitoring Group.

iii) Staff turnover: Since the June 2004 periodic meeting, the program has

had eight turnovers of staff. In the Environmental Monitoring Group, one

technical position was filled and two were vacated. In the Radioactive

Materials Inspection Group, one inspector retired and two new inspectors

were hired. In the Radioactive Material Licensing Group, one technical

position was filled and one was vacated and filled.

iv) Adequacy of FTE for the materials program: DSHS management stated

that if fully staffed and trained, the number of staff is adequate to keep up

with the current workload. However, with the implementation of HB 2292

on September 1, 2004, licenses are required to have an administrative

renewal every 2 years and a full technical renewal every 10 years. This

legislation will affect the inspection and QA programs as well as the

licensing program. DSHS staff stated that HB 2292's requirement for

administrative renewals every 2 years may stretch the adequacy of the

FTEs in the materials licensing program to a critical point. 

b. Materials Inspection Program: 

i) Discuss the status of the inspection program including if an inspection

backlog exists and the steps being taken to work off the backlog. The
-5-

RAM inspection program consists of 15 inspectors located in Austin and

9 field offices. The program has approximately 1700 radioactive material

licenses. DSHS management reported that there are currently 

375 radioactive material inspections in Priorities 1-3 that are more than

25 percent overdue. This number includes field office inspections that are

overdue. 

The RAM Inspection Group Manager provided the NRC staff an inspection

priority schedule that will be used by the inspectors to help them set

inspection priorities. The schedule is intended to provide a mechanism to

catch up on the overdue inspections without falling behind on additional

inspections based on the State criteria for inspection. The State’s criteria

are the same for subsites as the interval for the main site. NRC’s criteria

only includes 20 percent of the subsites. NRC’s criteria only include initial

inspections of newly licensed main sites. The State program considers all

new main and subsites as initial inspections. Therefore, the number of

overdue Priority 1-3 inspections, based on NRC’s criteria, will be less than

the reported 375. 

The inspection program has had significant challenges since the June

2004 periodic meeting. One inspector retired and two inspectors had

performance issues. In addition, three inspectors were being trained most

of the year. 

c. Regulations and Legislative Changes: 

i) Discuss status of State’s regulations and actions to keep regulations up to

date, including the use of legally binding requirements: The NRC staff again

reviewed the status of the Texas regulations with DSHS management. Based

on the Texas state regulation status sheet maintained by NRC, there appears

to be a number of amendments that are overdue. The overdue amendments

are the Recognition of Agreement State Licenses in Areas Under Exclusive

Federal Jurisdiction Within an Agreement State (RATS ID 1997-2), Exempt

Distribution of a Radioactive Drug Containing One Microcurie of Carbon-14

Urea (RATS ID 1997-7), Deliberate Misconduct by Unlicensed Persons (RATS

ID 1998-1), Radiological Criteria for License Termination of Uranium Recovery

Facilities (RATS ID 1999-1), and Revision of the Skin Dose Limit (RATS

ID 2002-1). 

In addition, as discussed in the June 2004 periodic meeting, there are a

number of amendments that appear to have been submitted and reviewed as

proposed regulations, but never resubmitted for review in final. DSHS

indicated that they had previously provided updated information on the status

of regulation to the 2000 IMPEP team that had not been incorporated into the

STP State Regulation Status (SRS) sheet. DSHS provided a copy of their

regulation status and agreed to review their records to search for documents

indicating NRC’s review of the outstanding regulations. The NRC staff agreed

to facilitate a meeting with the appropriate NRC staff to discuss the resolution

of these outstanding amendments. The State and the NRC need to find
-6-

evidence of NRC’s prior review or these regulations need to be resubmitted to

NRC for a formal regulation review for compatibility.

DSHS has submitted their proposed rules for the Requirements for Certain

Generally Licensed Industrial Devices Containing Byproduct Material (RATS

ID 2001-1). NRC reviewed the proposed rules and provided their comments

in a letter dated April 2, 2004. DSHS indicated that they had finalized the GL

rule. They have not submitted them to NRC for review, but agreed to do so

within the month. 

The NRC staff also discussed the upcoming due date for the Medical Use of

Byproduct Material amendment (RATS-ID 2002-2). DSHS indicated that they

had adopted the majority of the medical compatibility rules in 2000, with the

exception of the training and experience requirements and had submitted

them to NRC as draft. The DSHS’ submittal was prior to NRC’s final medical

rule which became effective October 24, 2002. Therefore, the draft was not

reviewed and no compatibility finding has been made for this rule. 

d. Program Reorganizations: 

i) Discuss any changes in program organization including program/staff

relocations and new appointments: As a result of HB 2292 on

September 1, 2004, the Texas Department of State Health Services

(DSHS) was created and designated as the State’s radiation control

agency. The new Division of Regulatory Services contains two sections

and eight units. DSHS is organized into functional groups rather than in

program groups. The radiation control program is now located in three

different units. Under the reorganization, the Texas Bureau of Radiation

Control ceased to exist. 

The Radiation Program Officer is designated as the radiation control

program director. The Radiation Program Officer reports directly to the

Assistant Commissioner, Division of Regulatory Services and is the

subject matter expert for radiation control issues. The intended role of the

Radiation Program Officer is to facilitate a cohesive radiation control

program across the three units.

e. Changes in Program Budget/Funding: 

The 2003 Legislature appropriated the former Bureau of Radiation Control’s

operating budget to DSHS. However, with the reorganization, the budget is

divided among four different organizational units.

5. Event Reporting, including follow-up and closure information in NMED: 

Prior to the periodic meeting, NRC staff queried the NMED database to identify

the events reported by DSHS since the last IMPEP. There were 160 events

identified as reportable. Of the 160 events, 37 were identified as not being

reported timely and 22 needed additional followup information. In addition, the

DSHS reviewed the NMED database for events reported since the June 2004
-7-

periodic meeting. DSHS identified six events that were reportable to NRC, but

had not been reported. Staff reported these events to NRC’s Operations Center

even though they were late.

DSHS management indicated that the reason for the late reporting and

incomplete data was the lack of staff to complete incident reviews. Texas had

three FTE budgeted for incident investigation until September 2003 when they

lost one FTE due to the State’s policy on retirement loss of funds. The position

had been vacant since December 2002. Currently, the incident investigation

program is budgeted for two FTE. The program has had one vacancy since June

2004. The second staff member left the program on February 14, 2005. 

To compensate for this loss in staff, Texas has shifted staff from other program

areas to assist in the incident investigation review process. This staff is reviewing

current investigations performed by field staff for adequacy, participating in the

followup of one of the State’s significant events, and reviewing old event logs to

identify any events not reported. As a result of this review, DSHS has identified

areas in their incident investigation program that needs improvement. 

Management is working to identify solutions to the communication challenges

between the groups created by the reorganization so that their investigation

program functions in a cohesive manner.

In the meantime, DSHS has posted the two vacancies, but has not scheduled

interviews. Management indicated that they expect to conduct the interviews,

make the selections, and be fully staffed in incident investigation program by the

end of April 2005.

6. Response to Incidents and Allegations: 

No allegations have been referred since the 2004 periodic meeting. 

7. Status of the following Program areas:

a. Sealed Source & Device Program:

There have been no changes to the SSD program since the last periodic

meeting, except the responsibility for the program shifted to the Technical

Assessment Group as a part of the reorganization.

b. Uranium Mills Program: The DSHS mill program has remained basically

unchanged since the June 2004 periodic meeting, except the Vasquez site is

now in production and production at the Alta Mesa site is expected by

September 2005. The three tailings impoundments are under reclamation but

continue to have groundwater issues. Waste Control Specialists has

submitted an application for disposal of 11(e)2 material and is currently under

technical review. DSHS informed the NRC staff of the potential transfer of

this program back to Texas Commission on Environmental Quality (TCEQ). 

DSHS expects to learn the decision at the end of the Legislative session.
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c. Low-Level Waste Program: Currently, DSHS is responsible for regulating

radioactive waste storage and processing. An amendment was issued on

February 23, 2005 expanding the storage area for the existing radioactive

waste processing and storage facility of Waste Control Specialists.

8. Information exchange and discussion: 

a. Current State Initiatives: 

DSHS has developed a recruitment/retention plan that would create a new

health physics classification category at a higher pay scale for technical staff. 

This proposal was submitted to the Legislature as an exceptional item and is

currently going through the legislative process.

b. Emerging Technologies: 

None since the June 2004 periodic meeting.

c. Large, Complicated or Unusual Authorization for Use of Radioactive

Materials:

DSHS has not received any applications for irradiators or any other unusual

authorizations since the last periodic meeting.

d. State’s Mechanisms to Evaluate Performance: 

DSHS continuously audits performance by performing peer reviews of

licensing actions and SSD reviews. In addition, all inspection reports are

reviewed by QA Specialists. Licensing actions and QA reviews of inspection

reports are electronically tracked. Status of inspections and inspection

reports are also electronically tracked. Inspector accompaniments are

conducted annually and coordinated between the Radiation Inspection Group

and the Radiation Policy, Standards and Quality Assurance Group. The

radiation control program management attend a monthly meeting which is

facilitated by the Radiation Program Officer to discuss pertinent issues in

order to maintain a cohesive program. 

e. NRC Current Initiatives: 

The NRC staff discussed the current status of the portable gauge rule,

sensitive information screening of documents in ADAMS, Security Measures,

and Part 35 - Training and Experience rulemaking. 

9. Schedule for the next IMPEP review: 

The next IMPEP is tentatively scheduled for mid September 2005.