MRB 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

WASHINGTON, D.C. 20555-0001 

April 29, 2016 

Matthew T. Wallen 

Chief of Staff 

Department of Health and Human Services 

301 Centennial Mall South 

Lincoln, NE 68509-5026 

Dear Mr. Wallen: 

On April 12, 2016, 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 U.S. Nuclear Regulatory Commission’s program. 

Section 5.0, page 11, of the enclosed final report contains a summary of the IMPEP team’s 

findings. Based on the results of the current IMPEP review, the next full review of the Nebraska 

Agreement State Program will take place in approximately 4 years, with a periodic meeting 

tentatively scheduled for January 2018. 

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

I also wish to acknowledge your continued support for the Agreement State program. I look 

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

Sincerely, 

 /RA/ 

Joel T. Munday, Acting Deputy Director 

Office of Nuclear Material Safety 

 and Safeguards 

Enclosure: 

Nebraska IMPEP Final Report 

cc: See next page 
cc w/encl: Julia Schmitt, Manager 

 Radiological Program 

 Mary Sue Semerena, Unit Administrator 

 NE Health & Human Services 

 Karen Beckley, NV 

 Organization of Agreement States 

 Liaison to the MRB 

 
Matthew T. Wallen 

Chief of Staff 

Department of Health and Human Services 

301 Centennial Mall South 

Lincoln, NE 68509-5026 

Dear Mr. Wallen: 

On April 12, 2016, 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 U.S. Nuclear Regulatory Commission’s program. 

Section 5.0, page 11, of the enclosed final report contains a summary of the IMPEP team’s 

findings. Based on the results of the current IMPEP review, the next full review of the Nebraska 

Agreement State Program will take place in approximately 4 years, with a periodic meeting 

tentatively scheduled for January 2018. 

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

I also wish to acknowledge your continued support for the Agreement State program. I look 

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

Sincerely, 

 /RA/ 

Joel T. Munday, Acting Deputy Director 

Office of Nuclear Material Safety 

 and Safeguards 

Enclosure: 

Nebraska IMPEP Final Report 

cc: See next page 

DISTRIBUTION: (SP08) 

See next page 

ML16105A230 

OFC MSTR/ASPB MSTR/ASPB RIII:TL NMSS/MSTR Tech Ed NMSS/MSTR NMSS:DD 

NAME LDimmick 

w/edits 

PMichalak JLynch 

via e-mail 

w/edits

DCollins WMoore PHenderson JMunday 

DATE 04/14/16 04/24/16 04/14/16 04/21/16 04/22/16 04/27/16 04/29/16 

OFFICIAL RECORD COPY 
Letter to M. Wallen from J. Munday dated: April 29, 2016 

SUBJECT: NEBRASKA FY2016 FINAL IMPEP REPORT 

DISTRIBUTION: (SP08) 

RidsEdoMailCenter 

RidsOgcMailCenter 

MSampson, OEDO 

RidsRgn4MailCenter 

MShaffer, RIV 

CLipa, RIV 

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RidsSecyCorrespondenceMailCenter 

RErickson, RIV 

RElliott, RI 

BGoretzki, AZ 

LRoldan-Otero, NMSS 

OAS Board 

JWeil, OCA
Enclosure 

INTEGRATED MATERIALS PERFORMANCE EVALUATION PROGRAM 

REVIEW OF THE NEBRASKA AGREEMENT STATE PROGRAM 

January 11—15, 2016 

FINAL REPORT
EXECUTIVE SUMMARY 

This report presents the results of the Integrated Materials Performance Evaluation Program 

(IMPEP) review of the Nebraska Agreement State Program. The review was conducted during 

the period of January 11—15, 2016, by a review team composed of technical staff members 

from the U.S. Nuclear Regulatory Commission (NRC) and the State of Arizona.

Based on the results of this review, Nebraska’s performance was found satisfactory for five out 

of six indicators: Technical Staffing and Training, Status of Materials Inspection Program, 

Technical Quality of Inspections, Technical Quality of Licensing Actions, and Technical Quality 

of Incident and Allegation Activities. The indicator Compatibility Requirements was found 

satisfactory, but needs improvement. 

Accordingly, the review team recommended, and the Management Review Board (MRB) 

agreed, that the Nebraska Agreement State Program is adequate to protect public health and 

safety and is compatible with the NRC's program. The review team recommended, and the 

MRB agreed, that the next IMPEP review take place in approximately 4 years and that a 

periodic meeting be held in 2 years, as regularly scheduled, in order to review progress in the 

State’s regulation promulgation process. 
Nebraska Final IMPEP Report Page 1 

1.0 INTRODUCTION 

This report presents the results of the review of the Nebraska Agreement State Program 

radioactive materials safety program. The review was conducted during the period of 

January 11—15, 2016, by a review team composed of technical staff members from the 

U.S. Nuclear Regulatory Commission (NRC) and the State of Arizona. The Review 

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 Final General Statement of Policy,” published in the Federal Register

on October 16, 1997, and NRC Management Directive 5.6 (MD 5.6), “Integrated 

Materials Performance Evaluation Program (IMPEP),” dated February 26, 2004. 

Preliminary results of the review, which covered the period of October 8, 2010, to 

January 15, 2016, were discussed with State managers on the last day of the review. 

In preparation for the review, a questionnaire addressing the common and applicable 

non-common performance indicators was sent to the State on July 13, 2015. The State 

provided its response to the questionnaire on December 3, 2015. A copy of the 

questionnaire response may be found in the NRC’s Agencywide Documents Access and 

Management System (ADAMS) using the Accession Number ML16026A614. 

A draft of this report was issued to Nebraska on February 4, 2016, for factual comment. 

Nebraska responded to the findings and conclusions of the review by letter dated 

March 4, 2016. A copy of Nebraska’s response can be found in ADAMS using the 

Accession Number ML16068A106. The Management Review Board (MRB) met on 

April 12, 2016, to consider the proposed final report. The MRB found the Nebraska 

Agreement State Program adequate to protect public health and safety, and compatible 

with the NRC’s program. 

The Nebraska Agreement State Program is administered by the Radiological Health 

Program (the Program) which is located within the Department of Health and Human 

Services (the Department). The Program Director reports to the Administrator of 

Environmental Health. Organization charts for the State may be found in ADAMS using 

the Accession Number ML16033A260. 

At the time of the review, the Nebraska Agreement State Program regulated 143 specific 

licenses authorizing possession and use of radioactive materials. The review focused 

on the radioactive 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. 

The review team evaluated the information gathered against the established criteria for 

each common and the applicable non-common performance indicator and made a 

preliminary assessment of the Nebraska Agreement State Program’s performance. 

2.0 PREVIOUS IMPEP REVIEW AND STATUS OF RECOMMENDATIONS 

The previous IMPEP review concluded on October 7, 2010. The final report is available 

in ADAMS (Accession Number ML110110042). The results of the previous review and 

the status of recommendations are as follows: 

Technical Staffing and Training: Satisfactory 

Recommendations: None

 
Nebraska Final IMPEP Report Page 2 

Status of Materials Inspection Program: Satisfactory 

Recommendations: None 

Technical Quality of Inspections: Satisfactory 

Recommendations: None 

Technical Quality of Licensing Actions: Satisfactory 

Recommendations: None 

Technical Quality of Incident and Allegation Activities: Satisfactory 

Recommendations: None 

Compatibility Requirements: Satisfactory 

Recommendations: None 

Overall finding: Adequate to protect public health and safety and compatible with the 

NRC’s program. 

3.0 COMMON PERFORMANCE INDICATORS 

Five common performance indicators are used to review the NRC regional and 

Agreement State radioactive materials programs. These indicators are (1) Technical 

Staffing and Training, (2) Status of Materials Inspection Program, (3) Technical Quality 

of Inspections, (4) Technical Quality of Licensing Actions, and (5) Technical Quality of 

Incident and Allegation Activities. 

3.1 Technical Staffing and Training 

The ability to conduct effective licensing and inspection programs is largely dependent 

on having a sufficient number of experienced, knowledgeable, well-trained technical 

personnel. Under certain conditions, staff turnover could have an adverse effect on the 

implementation of these programs, and thus could affect public health and safety. 

Apparent trends in staffing must be explored. Review of staffing also requires a 

consideration and evaluation of the levels of training and qualification. The evaluation 

standard measures the overall quality of training available to, and taken by, materials 

program personnel. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-103, “Reviewing 

the Common Performance Indicator: Technical Staffing and Training,” and evaluated 

the State’s performance with respect to the following performance indicator objectives: 

• A well-conceived and balanced staffing strategy has been implemented throughout 

the review period. 

• Agreement State training and qualification program is equivalent to NRC Inspection 

Manual Chapter (IMC) 1248, “Formal Qualifications Program for Federal and State 

Material and Environmental Management Programs.” 

• Qualification criteria for new technical staff are established and are being followed or 

that qualification criteria will be established if new staff members are hired. 

• Any vacancies, especially senior-level positions, are filled in a timely manner. 

• There is a balance in staffing of the licensing and inspection programs. 

• Management is committed to training and staff qualification. 
Nebraska Final IMPEP Report Page 3 

• Individuals performing materials licensing and inspection activities are adequately 

qualified and trained to perform their duties. 

• License reviewers and inspectors are trained and qualified in a reasonable period of 

time. 

b. Discussion 

The Nebraska Agreement State Program is composed of the Administrator of 

Environmental Health, the Radiological Program Manager, and three Health Physicist 

technical staff members which equals 3.8 full time equivalents for the radioactive 

materials program. Currently, there are no vacancies. During the review period, one 

Health Physicist retired and was replaced within 1 month by a staff member from the xray program. That individual is currently going through the qualification process. 

Nebraska has a training and qualification manual compatible with the NRC’s IMC 1248. 

c. Evaluation 

Staffing in the Nebraska Program has been very stable for many years. The review 

team evaluated the State’s training procedure, which was revised in December 2015, 

and determined that it was compatible with IMC 1248. 

The review team determined that, during the review period, the Nebraska program met 

the performance indicator objectives listed in Section 3.1.a. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, Technical 

Staffing and Training, be found satisfactory. 

3.2 Status of the Materials Inspection Program 

Periodic inspections of licensed operations are essential to ensure that activities are 

being conducted in compliance with regulatory requirements and consistent with good 

safety practices. The frequency of inspections is specified in the NRC’s IMC 2800, 

“Materials Inspection Program,” and is dependent on the amount and kind of material, 

the type of operation licensed, and the results of previous inspections. There must be a 

capability for maintaining and retrieving statistical data on the status of the inspection 

program. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-101, “Reviewing 

the Common Performance Indicator: Status of the Materials Inspection Program,” and 

evaluated the State’s performance with respect to the following performance indicator 

objectives: 

• Initial inspections and inspections of Priority 1, 2, and 3, licensees are performed at 

the frequency prescribed in NRC IMC 2800. 

• Candidate licensees working under reciprocity are inspected in accordance with the 

criteria prescribed in IMC 1220, “Processing of NRC Form 241, Report of Proposed 

Activities in Non-Agreement States, Areas of Exclusive Federal Jurisdiction, and 
Nebraska Final IMPEP Report Page 4 

Offshore Waters, and Inspection of Agreement State Licensees Operating Under 

10 CFR 150.20.” 

• Deviations from inspection schedules are normally coordinated between technical 

staff and management. 

• There is a plan to perform any overdue inspections and reschedule any missed or 

deferred inspections; or a basis has been established for not performing any overdue 

inspections or rescheduling any missed or deferred inspections. 

• Inspection findings are communicated to licensees in a timely manner (30 calendar 

days, or 45 days for a review team inspection, as specified in IMC 0610, “Nuclear 

Material Safety and Safeguards Inspection Reports”). 

b. Discussion 

Nebraska’s inspection frequency is equivalent to similar license types found in IMC 

2800. The Program performed a total of 156 Priority 1, 2, 3 and initial inspections over 

the review period, none of which were conducted overdue. Initial inspections of new 

licenses were performed within 12 months of license issuance. An evaluation of 27 

inspection reports indicated that none of the inspection findings were communicated to 

the licensees beyond Nebraska’s goal of 30 days following the inspection exit. The 

Program inspected the following percentages of candidate licensees working under 

reciprocity during the review period: 19 percent in 2010, 14 percent in 2011, 18 percent 

in 2012, 20 percent in 2013, 25 percent in 2014, and 21 percent in 2015. 

c. Evaluation 

The Program tracked reciprocity percentages and identified that it was not meeting the 

20 percent goal early in the review period. Greater emphasis was placed on the goal 

and the percentage trended upward, reaching the goal for the past 3 years. 

The team determined that, during the review period, Nebraska met the performance 

indicator objectives listed in Section 3.2.a. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, Status of 

Materials Inspection Program, be found satisfactory. 

3.3 Technical Quality of Inspections 

Inspections, both routine and reactive, provide assurance that licensee activities are 

carried out in a safe and secure manner. Accompaniments of inspectors performing 

inspections, and the critical evaluation of inspection records are used to assess the 

technical quality of a program’s inspection capability. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-102, “Reviewing 

the Common Performance Indicator: Technical Quality of Inspections,” and evaluated 

the State’s performance with respect to the following performance indicator objectives: 

• Inspections of licensed activities focus on health, safety, and security. 

• Inspection findings are well-founded and properly documented in reports. 
Nebraska Final IMPEP Report Page 5 

• Management promptly reviews inspection results. 

• Procedures are in place and used to help identify root causes and poor licensee 

performance. 

• Inspections address previously identified open items and violations. 

• Inspection findings lead to appropriate and prompt regulatory action. 

• Supervisors conduct annual accompaniments of each inspector to assess 

performance and assure consistent application of inspection policies. 

• For programs with separate licensing and inspection staffs, to verify that procedures 

are established and followed to provide feedback information to license reviewers. 

• For Agreement States, to determine if inspection guides are consistent with NRC 

guidance. 

• An adequate supply of calibrated survey instruments is available to support the 

inspection program. 

b. Discussion 

The review team interviewed inspectors and evaluated a sampling of inspection reports 

and enforcement documentation for 27 of the 156 Priority 1, 2, 3 and initial inspections 

conducted during the review period. The casework reviewed included inspections 

conducted by all of Nebraska’s three inspectors and covered medical, industrial, 

commercial, academic, research, and service provider licenses. 

Accompaniments of two inspectors were conducted by one review team member in 

September 2015. The inspectors were found to be well-prepared, thorough, and 

conducted performance-based inspections. The inspections were adequate to assess 

radiological health, safety and security. The third inspector was not qualified to perform 

independent inspections at the time of this review. 

The Program has a policy of performing annual supervisory accompaniments for each of 

the materials inspectors. This accompaniment is performed either by the supervisor or a 

peer. The review team found that over the review period, a total of 18 inspector 

accompaniments had been performed. The review team noted that no accompaniments 

were performed in 2011, however, each inspector had been accompanied during the 

preceding and following years. 

c. Evaluation 

The Program Manager stated that the reason why the accompaniments were not 

performed in 2011 was due to an increase in emergency response exercises during that 

time, along with the fact that no team inspections were due during that timeframe. 

The team determined that, during the review period, Nebraska met the performance 

indicator objectives listed in Section 3.3.a. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, Technical 

Quality of Inspections, be found satisfactory. 

 
Nebraska Final IMPEP Report Page 6 

3.4 Technical Quality of Licensing Actions 

The quality, thoroughness, and timeliness of licensing actions can have a direct bearing 

on public health and safety, and security. An assessment of licensing procedures, 

actual implementation of these procedures, and documentation of communications and 

associated actions between the State licensing staff and the regulated community will be 

a significant indicator of the overall quality of the program. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-104, “Reviewing 

the Common Performance Indicator: Technical Quality of Licensing Actions,” and 

evaluated the State’s performance with respect to the following performance indicator 

objectives: 

• Licensing action reviews are thorough, complete, consistent, and of acceptable 

technical quality with health, safety, and security issues properly addressed. 

• Essential elements of license applications have been submitted and elements meet 

current regulatory guidance (e.g., financial assurance, increased controls [IC], prelicensing guidance). 

• License reviewers, if applicable, have the proper signature authority for the cases 

they review independently. 

• License conditions are stated clearly and are inspectable. 

• Deficiency letters clearly state regulatory positions and are used at the proper time. 

• Reviews of renewal applications demonstrate a thorough analysis of a licensee’s 

inspection and enforcement history. 

• Applicable guidance documents are available to reviewers and are followed (e.g., 

NUREG-1556 series, pre-licensing guidance, regulatory guides, etc.). 

• Licensing practices for risk significant radioactive materials are appropriately 

implemented including ICs and fingerprinting orders (or Part 37 equivalent). 

• Documents containing sensitive security information are properly marked, handled, 

controlled and secured. 

b. Discussion 

During the review period, the State of Nebraska performed 919 radioactive materials 

licensing actions. The review team evaluated 23 of these licensing actions which 

included casework for 5 current and former license reviewers. The licensing actions 

selected for review included eight new applications, six amendments, four renewals, and 

five terminations. The review team evaluated casework which included the following 

license types and actions: broad scope, medical diagnostic and therapy, commercial 

manufacturing and distribution, industrial radiography, research and development, 

academic, nuclear pharmacy, gauges, panoramic irradiators, decommissioning actions, 

and financial assurance. 

The Program has three Health Physicists and the Program Manager that are qualified 

license reviewers. Once completed, all licensing actions are peer reviewed and 

approved by another qualified license reviewer before submittal to the Program Manager 

for final review and signature. 

The review team assessed new applications for the Program’s implementation of the 

pre-licensing requirements. The Program implements the “Checklist to Provide a Basis 

for Confidence That Radioactive Material Will Be Used as Specified on a License” and 
Nebraska Final IMPEP Report Page 7 

the “Checklist for Risk-Significant Radioactive Material.” The team found that the 

Program was conducting pre-licensing visits on 100 percent of the applicants regardless 

of whether or not they are known entities. Licensees that require increased controls 

receive an onsite security review prior to issuance of the license. 

c. Evaluation 

The team determined that, during the review period, Nebraska met the performance 

indicator objectives listed in Section 3.4.a. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, Technical 

Quality of Licensing Actions, be found satisfactory. 

3.5 Technical Quality of Incident and Allegation Activities 

The quality, thoroughness, and timeliness of response to incidents and allegations of 

safety concerns can have a direct bearing on public health and safety. An assessment 

of incident response and allegation investigation procedures, actual implementation of 

these procedures, internal and external coordination, and investigative and follow-up 

procedures and actions will be a significant indicator of the overall quality of the 

program. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-105, “Reviewing 

the Common Performance Indicator: Technical Quality of Incident and Allegation 

Activities,” and evaluated the State’s performance with respect to the following 

performance indicator objectives: 

• Incident response, investigation, and allegation procedures are in place and 

followed. 

• Response actions are appropriate, well-coordinated, and timely. 

• On-site responses are performed when incidents have potential health, safety or 

security significance. 

• Appropriate follow-up actions are taken to ensure prompt compliance by licensees. 

• Follow-up inspections are scheduled and completed, as necessary. 

• Notifications are made to the NRC Headquarters Operations Center for incidents 

requiring a 24-hour or immediate notification to the Agreement State or the NRC. 

• Incidents are reported to the Nuclear Material Events Database (NMED). 

• Allegations are investigated in a prompt, appropriate manner. 

• Concerned individuals are notified of investigation conclusions. 

• Concerned individuals’ identities are protected, as allowed by law. 

b. Discussion 

During the review period, the Program reported 25 incidents to the NMED database. 

Eleven of the reports involved lost tritium exit signs. The remaining 14 incidents were 

evaluated by the review team and involved reports of lost or stolen radioactive material, 

damaged equipment, medical events and equipment failures. When notified of an 

incident, management and staff meet to discuss the incident and determine what the 
Nebraska Final IMPEP Report Page 8 

appropriate level of response should be. This can range anywhere from an immediate 

response up to reviewing the event during the next inspection interval. Those 

determinations are made based on both the circumstances and the health and safety 

significance of the incident. The review team found that Nebraska’s evaluation of 

incidents notifications and its response to those incidents was well balanced, complete 

and comprehensive. 

During the review period, one allegation was directly received by the Program. No 

allegations were referred by the NRC during the review period. The review team 

evaluated the completed casework and found that the Program took prompt and 

appropriate action in response to the concern raised. The concerned individual was 

notified of the findings. The team found that the Program adequately protected the 

concerned individual’s identity. 

c. Evaluation 

The team determined that, during the review period, Nebraska met the performance 

indicator objectives listed in Section 3.5.a. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, Technical 

Quality of Incident and Allegation Activities, be found satisfactory. 

4.0 NON-COMMON PERFORMANCE INDICATORS 

Four non-common performance indicators are used to review Agreement State 

programs: (1) Compatibility Requirements, (2) Sealed Source and Device (SS&D) 

Evaluation Program, (3) Low-Level Radioactive Waste (LLRW) Disposal Program, and 

(4) Uranium Recovery Program. The NRC’s Agreement with Nebraska does not 

relinquish regulatory authority for a uranium recovery program. In addition, with regard 

to the non-common performance indicators for SS&D and LLRW, although Nebraska 

has authority to conduct SS&D evaluations and regulate LLRW disposal, the State did 

not perform any activities related to these indicators during the review period. Therefore, 

only the first non-common performance indicator, Compatibility Requirements, applied to 

this review. 

4.1 Compatibility Requirements 

State statutes should authorize the State to establish a program for the regulation of 

agreement material and provide authority for the assumption of regulatory responsibility 

under the agreement. The statutes must authorize the State to promulgate regulatory 

requirements necessary to provide reasonable assurance of protection of public health, 

safety, and security. The State must be authorized through its legal authority to license, 

inspect, and enforce legally binding requirements, such as regulations and licenses. 

The NRC regulations that should be adopted by an Agreement State for purposes of 

compatibility or health and safety should be adopted in a time frame so that the effective 

date of the State requirement is not later than 3 years after the effective date of the 

NRC's final rule. Other program elements, as defined in Appendix A of State 

Agreements procedure SA-200, “Compatibility Categories and Health and Safety 

Identification for NRC Regulations and Other Program Elements,” that have been 

designated as necessary for maintenance of an adequate and compatible program 
Nebraska Final IMPEP Report Page 9 

should be adopted and implemented by an Agreement State within 6 months following 

the NRC designation. 

a. Scope 

The review team used the guidance in State Agreements procedure SA-107, “Reviewing 

the Non-Common Performance Indicator: Compatibility Requirements,” and evaluated 

the State’s performance with respect to the following performance indicator objectives. 

• The Agreement State program does not create conflicts, duplications, gaps, or other 

conditions that jeopardize an orderly pattern in the regulation of radioactive materials 

under the Atomic Energy Act, as amended. 

• Regulations adopted by the Agreement State for purposes of compatibility or health 

and safety were adopted no later than 3 years after the effective date of the NRC 

regulation. 

• Other program elements, as defined in SA-200 that have been designated as 

necessary for maintenance of an adequate and compatible program have been 

adopted and implemented within 6 months of NRC designation. 

• The State statutes authorize the State to establish a program for the regulation of 

agreement material and provide authority for the assumption of regulatory 

responsibility under the agreement. 

• The State is authorized through its legal authority to license, inspect, and enforce 

legally binding requirements such as regulations and licenses. 

• Impact of sunset requirements, if any, on the State’s regulations. 

b. Discussion 

Nebraska became an Agreement State on October 1, 1966. The Nebraska Agreement 

State Program’s statutory authority is located in Title 180 of the Nebraska Administrative 

Code. The Department is designated as the State’s radiation control agency. There 

were eight legislative amendments passed during the review period that affected the 

radiation control program: 

• Radiation Control Act 

• Transportation of High-level Radioactive Waste and Transuranic Waste 

• Certified Registered Nurse Anesthetist Practice Act 

• Advanced Practice Registered Nurse Practice Act 

• Nebraska Emergency Management Act 

• Emergency, Governor, Civil Defense Assumption of Control of State 

Communication System 

• Administrative Procedures Act 

• Low-Level Radioactive Waste Act 

Of those, the Administrative Procedures Act, adopted in 2011, which provided a directive 

for the creation, adoption, and revision of regulations, appears to have affected the 

Program the most. As described by the Program Manager, the law requires that all 

State rules that are legislatively mandated must be adopted within 12 months and that 

those rules have priority and are processed before rules that are not legislatively 

mandated. Other rules, such as rules required by the NRC as a matter of compatibility, 

must wait in the queue for the legislatively mandated rules to be processed first. If 

during the waiting period another legislatively mandated rule is passed, it too will be 

processed before other non-legislatively mandated rules currently waiting in the queue. 

In conjunction with this new process, the Program is now only allowed to submit one rule 
Nebraska Final IMPEP Report Page 10 

package annually, so as amendments are developed by the Program, they are set aside 

and collected until they are given permission to submit their rule packages. 

This new law was previously described to the NRC during the 2012 periodic meeting 

where the Program Manager expressed her concerns about the Program’s future ability 

to remain compatible with NRC requirements for timely rule adoption. Prior to the 

passing of this Act, the Program’s process for rulemaking took approximately 12 months 

from when it received an amendment from the NRC to when those regulations became 

final. At the time of the 2012 periodic meeting, the Program was tracking its first rule 

package containing five NRC amendments under this new legislatively mandated 

process. At the time of the meeting the rule package had already been in the process 

for nearly 900 days. Of those 900 days, the rule package had taken 85 days for the 

Program to develop, 67 days for the public hearing process, and the rest of that time the 

package had been waiting in queue for a legal review. That rule package was 

subsequently adopted late as described later in this section. 

During the review period, 12 amendments were issued by the NRC. Nebraska adopted 

two of the amendments timely. Of the 10 additional amendments, 5 were adopted late 

as described earlier in this section and 5 additional amendments are still outstanding 

and are currently late. A complete list of NRC’s regulation amendments can be found on 

the NRC website at the following address: https://scp.nrc.gov/rss_regamendents.html.

At the time of this review, the following five amendments were overdue: 

• “Decommissioning Planning,” Title 10 of the Code of Federal Regulations (10 CFR) 

Parts 20, 30, 40, and 70 amendments (76 FR 35512), that were due for Agreement 

State adoption by December 17, 2015. 

• “Licenses, Certifications, and Approvals for Materials Licensees,” 10 CFR Parts 

30, 36, 39, 40, 70, and 150 amendments (76 FR 56951), that were due for 

Agreement State adoption by November 14, 2014. 

• “Advance Notification to Native American Tribes of Transportation of Certain Types 

of Nuclear Waste,” 10 CFR Part 71 amendment (77 FR 34194), that was due for 

Agreement State adoption by August 10, 2015. 

• “Technical Corrections,” 10 CFR Parts 30, 34, 40 and 71 amendments (77 FR 

39899), that were due for Agreement State adoption by August 6, 2015. 

• “Requirements for Distribution of Byproduct Material,” 10 CFR Parts 30, 31, 32, 40 

and 70 amendments (77 FR 43666), that were due for Agreement State adoption 

by October 23, 2015. 

Because a majority of the delay in the process appears to occur within the legal 

department, the review team met with Department attorneys to discuss the problem and 

to see if other options were available to the Program. The attorneys acknowledged that 

while the new process has negatively affected the Radiation Control Program, it has had 

an equally negative impact on every Program within the Department. They noted that a 

significant part of the delay is a result of a reduction in legal department staffing. 

Previously, four individuals were assigned to regulation reviews, now only one is 

assigned. There is also no established prioritization scheme other than placing them in 

chronological receipt order behind the legislatively mandated regulations. The attorneys 

indicated that under a new administration, they may now be able to use alternate 
Nebraska Final IMPEP Report Page 11 

methods to enforce regulatory changes such as incorporation by reference, the use of 

which was previously unavailable to them. 

c. Evaluation 

The review team reviewed the content of the late or open amendments and noted that 

most of them contained a significant number of Compatibility A and B designations, 

which by not adopting them in a timely manner, creates regulatory gaps that have the 

potential to jeopardize an orderly pattern in the regulation of radioactive materials under 

the Atomic Energy Act, as amended. The review team further noted that of the 12 

amendments required for adoption by the State during the review period, 10 were either 

adopted late or are currently late. All of the late amendments occurred following the 

passage of the Administrative Procedures Act of 2011. 

The delays in the State’s regulation development process resulted in the failure to timely 

adopt approximately 83 percent of all amendments required to be adopted over the 

review period. The review team recommended that the State evaluate its regulation 

development program and implement appropriate measures to ensure that rules or 

generic legally binding requirements are adopted in a timely manner to meet 

compatibility requirements. In its March 4, 2016, response to the draft report, Nebraska 

management stated the actions the Department has taken since the onsite IMPEP 

review to address the overdue regulations. The Department has given the pending 

regulations, which are overdue, high priority. The pending regulations have been 

approved for public hearing, and will be prioritized upon completion of the hearing. In 

addition, the Department formed a quality improvement team to work on streamlining the 

regulation development and review process. The MRB considered Nebraska’s response 

to the draft report and commitments made between the Program and the Department’s 

legal services and determined the Program met the intent of the team’s 

recommendation. Therefore, the MRB decided that a formal recommendation in this 

regard was no longer needed and requested that the recommendation be removed from 

this report. 

d. Results 

Based on the IMPEP evaluation criteria in MD 5.6, the review team recommended, and 

the MRB agreed, that Nebraska’s performance with respect to the indicator, 

Compatibility Requirements, be found satisfactory, but needs improvement. 

5.0 SUMMARY 

As noted in Sections 3.0 and 4.0 above, Nebraska’s performance was found satisfactory 

for five out of six performance indicators reviewed, and satisfactory, but needs 

improvement, for the indicator Compatibility Requirements. 

Accordingly, the review team recommended, and the MRB agreed, that the Nebraska 

Agreement State Program be found adequate to protect public health and safety and 

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

the review team recommended, and the MRB agreed, that the next full IMPEP review 

take place in approximately 4 years, and that a periodic meeting be held, as normally 

scheduled, in 2 years in order to review progress in the State’s rule development 

program. 
LIST OF APPENDICES 

Appendix A IMPEP Review Team Members 

Appendix B Inspection Accompaniments 
APPENDIX A 

IMPEP REVIEW TEAM MEMBERS 

Name Area of Responsibility

Jim Lynch, Region III Team Leader 

 Technical Staffing and Training 

Randy Erickson, Region IV Technical Quality of Incident and Allegation Activities 

 Compatibility Requirements 

 Inspector Accompaniments 

Robin Elliott, Region I Technical Quality of Licensing Actions 

Brian Goretzki, Arizona Status of Materials Inspection Program 

 Technical Quality of Inspections 

 
APPENDIX B 

INSPECTION ACCOMPANIMENTS 

The following inspection accompaniments were performed prior to the on-site IMPEP review: 

Accompaniment No.: 1 License No.: 01-04-01 

License Type: Large Medical & HDR Priority: 2 

Inspection Date: 9/21/15 Inspector: HS 

Accompaniment No.: 2 License No.: 10-08-01 

License Type: Panoramic Irradiator Priority: 2 

Inspection Date: 9/22/15 Inspector: BM