ML20059N453

Forwards Proposed Policy Statement on fitness-for-duty of NRC Licensees Other than Nuclear Power Plant Licensees,For Commission Consideration & Concurrence

ML20059N453
Person / Time
Issue date:	12/05/1989
From:	Beckjord E NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES)
To:	Bernero R, Harold Denton, Murley T NRC OFFICE OF GOVERNMENTAL & PUBLIC AFFAIRS (GPA), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation
Shared Package
ML19332J216	List: ML20059N451 ML20059N452 ML20059N453
References
FRN-55FR14288, RULE-PR-55 AD55-1-03, AD55-1-3, NUDOCS 9010150312
Download: ML20059N453 (18)

Text

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~,h NUCLE AR REGULATORY COMMISSION

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DEC5 19e9 j

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MEMORANDUM FOR:

homas E. Murley, Director, Office of Nucitar Reactor Regulation Robert M. Bernero, Director, Office of Nuclear Material

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Safety and Safeguards l

Harold R. Denton, Director, Office of Governmental and Public 1

Affairs William C. Parler, General Counsel Patricia G. Norry, Director, Office of Administration

'" FA0M:

Eric S. Beckjord, Director, Office of Nuclear Regulatory Research i

SUBJECT:

PROPOSED POLICY STATEMENT ON FITNESS FOR DUTY OF NRC LICENSEES i

OTHER THAN NUCLEAR POWER PLANT LICENSEES o

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I Enclosed is a Commission paper to be submitted for Commission considera-l.

tion regarding the subject proposed policy statement. h Commission paper has been modified in accordance with cossents provided by your office. Because L

the Commission ~due date for this paper is December 29, 1989, we would like to i

have telephone concurrence by December 15,1989. Please contact Stanity P.

Turel. I23739, if you have any questions.

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Eric S. Beckjord, Director Office of Nuclear Regulatory Research

Enclosure:

1.

Cognizant individuals

2.. Commission paper goig3a 900921 55 55FR14288 PDR S

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I gnizant Individuals:

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George McCorkle SGTR

- Willard Brown

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. Carl $ag er

$GTR Bob 0'Connell INNS

. Jack Metzger IMDB Phil Ting

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Don Kason 5GTR Peter Loysen IMNS i

John Hickey

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9 Gene McPeek MIS Loren Bush M!$

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Fort, The Commissioners From:

James N. Taylor. Executive Director for Operations Sub.iect:

PROPOSED POLICY STATDIENT ON FITNESS FOR DU1Y AT NRC-LICENSED FACILITIES OTHER TNAM NUCLEAR POWER PLANT.:

Purpose:

To obtain Commission approval of a proposed Policy Statement and a decision on the need for rwlemaking for Category I facilities and shipments.

Background:

InSECY-87-12(June 14,1987). Fitness for Duty at NRC-Licensed Facilities Other Than Nuclear Power Plants the staffdiscussedthepossibilitythatpublicandemployee health and safety could be adversely affected by personnel who (dre ) perform activities at such facilities.while chemically mich ispaired. The staff stated its belief that the Cosa ssion should formally establish its position on the need for a fitness-for-duty program for key personnel involved in licensed activities other than power reactors.

Such a L

msition would couplement the Commission's Policy Statement on ritness for Duty of Nuclear Power Plant Personnel (51 27921) and the final Fitness-for-Duty Rule that was published in June 1989(54FR24468).

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When the Fitness-for fNty pule for. Nuclear Power Reactor Personnel was published'as a proposed-rule, the Commission specifically invited public comments on the extent to which NRC regulations on fitness for duty should addreds other re9ulated activities not currently within the scope of this proposed rule. Regulated activities considered for rulesekin;, e or a policy statementgegg ction reope in clear

Contact:

Stanley Turel, RES 49-23739 i-E

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1 Operation of nonpower reactors.

E Fuel cycle facilities.

Utilization of nuclear materials by other material licensees.

Several cassents were received from universities and others involved with research reactors er other nonpower reactors.

The commenters stated that there is no need to' extend coverage i

of the rule to these facilities because no drug-related problem has been demonstrated to exist and that a relatively

-minor threat is posed by these f acilities to the public health and safety. ~ Unbearable costs and.iapracticality were also 1

cited as arguments against' inclusion of' these licensees in the a

rule. A few comments received from individuals involved with:

handling.special nuclear material made the same' general points.-

There were no coseents supportive of expanding coverage of the' L-rule to facilities other than nu a

r reactors, h

In SECY-89-030 (January 31 89), the' staff concluded that L

there was~no reason at th time to extend coverage of the rule to other facilities but that extending the coverage of the rule could be consi red at a future time. The Commission reopened-the issue and directed the' staff, through the SRM of

. February 16, 1989, to: advise the Commission on tie need to

. expand the Fitness-for-Duty Rule to cover fuel facilities and'.

other material licensees. The Coemission also dilrected the' *

staff (meno fnm Chilk to Stello, March 22,1989) to study the s

need to amend Part 26 to-include material licensees and fuel

- cycle facilities and'how drugs and alcohol abuse affect their 1

_ safety, especially the security of Category I facilities.

Discussionr Under NRC or Agreement State licenses, nuclear materials are

-used in a wide variety of commercial, academic, and: medical-

'l applications. The;1icensees that could be affected by expanding the coverage of the Fitness-for-Outy Rule include licensees of-nonpower reactors,'those that haffdle radioactive sources,. and thosesinvolved in fuel cycle, transportation, and waste i

L management activities. About 8,600 licensees under NRC authority would be affected, Ip l

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The diversity of the licensees is shown by the followt..g list of equipment or activities:

4 Nuclear Material Licensees Radioactive Sources Nuclear medicine diagnosis and therapy, manufacturing and distribution, research and development, instrument calibration.-industrial radiography, gauging devices and' gas chromatography, pool and dry irradiators, and well-logging.

Fuel Cycle. Transportation. Waste Storage, and Disposal

.Comercial low-level waste disposal, spent fuel storage, fuel fabrication, transportation, and disposing of or-storing their own radioactive wastes.

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Nonpower Reactors.

3, Research and test.

Nov. 18,'1988, enacted Congress, as Hirt of Public Law 100-690,1988, which requires

- Subtitle D - 1 rug-Free Workplace Act of that certain Federal contractors.and grantees provide a.

I drug-free workplace. Obviously, any licensee who is a Federal l.

contractor or grantee euld be required by Subtitle D to provide a drug-free workplace; Unfortunately, without a direct pell of licensees,'there is no sure way of knowing how many are under the juttsdiction of Subtitle D.~ Any; direct effort to obtain this information by a poll of licensees could be delayed or impeded by the Paperwork Reduction Act..The staff estimates - however, that an ovembelming majority. (up to 955) of the licensees are not covere<j by the Act.

It-N would be possible, if the Commission sa requests, to poll the j

L licensees via this Federai esciata= wtice (Enclosure 1) to a

l5 ascertain whether or not the Act affects'them. This poll, L

because of its voluntary nature, would provide only a crude estimate.-

By its policy statement and the final rule creating 10 CFR i

part 26, " Fitness-for-Duty Program," the Cosmiission has made a strong statement about the use of drugs and alcohol by L

personnel working in nuclear power plants. The staff is b

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l-convinced that there is a need to explicitly convey a-Comission position on drugs to the approximately 8,600 other h

licensees. However, after a careful review of the pros and J

and. fuel cycle licensees (Enclosure 2)y Rule tt cover material cons for extending the Fitness-for-Dut ls

, the staff reconnends -

L that rulemaking be initiated only for NRC-regulated Category 1-facilities and Category I shipments. The other material licensees should be covered by a policy statement.

Rulemaking is recossended for licensees involved in Category I l

i facilities and Category I shipments because employees of such licensees have access to strategic special nuclear.

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- material, provide physical security for such material, or transport such material.

Furthermore, the proposed rule is needed to maintain comparability with the Department of 4

- Energy, facilities.. Further discussion of the. inclusion or

- exclusion rationale in this rulemaking'(e.g., shipments of; spent fuel, catetory II and !!! facilities and shipments, and

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protection of workers from consequences' of malevolent acts)

L is found in inclosure 2.

The staff is proposing a policy statoment on fitness for duty for all 11cer sees not involved with' nuclear power plants.

This is based on the qualitative judgment of the amount and strategic value of the material possessed by the licensee and the overall risk to the public.

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nuu6 of-licensees ma se ow r k caus are 11 er/

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TheenclosedFederalRegisternotice(Enclosure 1)contains-a

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proposed nolicy statement on fitness for duty at material' 11censees and non mwer reactor facilities that is generally consistent w th t te previously punitsneo Commission policy "j

statement on fitness for duty for nuclear' power reactor personne_1.t A 75-day comment period for response to the reposed policy

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MD statement is recommended. After review of blic-comments I

and consideration of experience with the Fitness-for-Duty.

Rule for power reactors, the Commission may revise' the policy /

or other *n - '*actar licenseesJJ Upon commissmn approval o" sne staTT's rect

- naation.

proposed rule i

r fitness for duty for Category I facili ies and shipme s.wf4+

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J Coordination:

The Offices of Nuclear Reactor Regulation and Nuclear Material Srfety and Safeguards concur in the proposed policy statement.

The Office of the General Counsel has no legal objection.

Recomendation: That the Comission:

1.

Approve the proposed policy statement as set-forth in for publication in the Federal Register with t

a 75-day coment ptriod.

2.

Approve development of a proposed rule on fitness for duty for Category I facilities and shipments.

3.

Note:

a.

The Office of Public Affairs plans to issue the proposed policy statement to a list of newspaper editors via a note to editors at the same time it is published in the Federal Register.

E b.

Congressional committees will be informed of this.

proposed policy stateur a closure 3).

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l James M. Taylor

. Executive Director for Operations

Enclosures:

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Federal Relister notice f

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Memo from 0/NM55 3.

Draft Congressional letters I,

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b NUCLEAR REGULATORY COMMIS$10tl f

-10 CFR CHAPTER 1 g(-

1 Fitness for Duty at-NRC-Licensed Facilities Other Than Nuclear Power Plants; Policy Statement

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AGENCY: Muclear Regulatory Commission.

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ACTION: Proposed policy statement.

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SUMMARY

The Nuclear Regulatory Commission (HRC) is publishi a proposed policy statement.with respect to fitness for duty of NRC licensee' personnel clear power plant.

(other than individuals licensed under 10 CFR Part 55 an personnel who are subject to the fitness-for-duty. program established pursuant.

to10CFRpart26). The proposed policy statement describes the measures that the NRC will use-to execute its responsibilities to ensure the health and safety of the public. The proposed policy statement does, not limit NRC authority and.

tesponsibility to follow up on operational events, material or equipment misuse, 4

or handling events or NRC's enforcement authority when regulatory requirements The Commission invites interested members of the pubile to provide

-are not met.

comments on the proposed policy statement.

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DATESf The comment period expires [75 days af ter publication). Comments received after this date will be considered if it is practical to do so, but e

assurance of consideration cannot be given except as to comments received L

before this date.

1 ADDRESSES: Conments should be sent to the Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC,20555, ATTN:. Docketing and

. Service Branch. Hand deliver cossents to One l'hite Flint North,11555 Rockville 2

Pike, Rockville, Maryland, between 7:45 a.m. and 4:15 p.m on Federal workdays.

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'FOR FURTHER INFORMATION CONTACT: Stanley Turel, Division of Regulatory.

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Applications, Office of Nuclear Regulatory Research, U.S. Nuclear Regulato,ry Commission, Washington, DC 20555, telephone (301) 492-3739.

SUPPLEMENTARY INFORMATION:

Introduction The Nuclear Regulatory Commission-(NRC) recognizes drug and alcohol abuse

.to 'be a social medical..and safety problem affecting every segment of ~our-

-society. Given.the. pervasiveness of the problem, 'it must be recognized to exist-to some extent in the nuclear industry. Therefore, the Commission believes it prudent to consider measures to provide m asonable assurance that a person who is under the influence of alcohol or any other substance, legal or illegal, that.affects that person's ability to adequately perfom duties e

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-associated with the safe use of nuclear materials will not-be allowed access to (1)- hazardous material. (2) safety systems at a nuclear fuel facility, or (3)equipmentthatcontains.radioactivematerialofanature,that,ifmisused, cight be harmful to that person, the co-workers, or the. public health and safety.

Background

N issue of drug and alcohol abuse has been examined extensively in the context of fitness for duty in the nuclear utility industry. For example, a Task Force on. Drug Abuse Problems,' Policies, and Programs, established in 1982-bytheEdisonElectricInstitute's'(EEI)IndustrialRelationsDivision. Executive-Advisory Committee, published guidelines in 1983 to' help the nuclear utility

-industry establish comprehensive fitness-for-duty programs.

N' guidelines were revised in 1985 as-the 'EE! Guide to Effective Drug and Alcohol / Fitness for Duty: Policy Development

• and were provided to all nuclear power plants.

N se programs include the training of managers, supervisors,-and others in methods for identifying and dealing with personnel potentially unfit-for duty.

The EEI guidelines include:

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Issuance of a written policy to include forma' tion of a substance abuse committee, a system of records and analyses, and periodic audits of the program.-

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Involvement of top management in the program.

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Communication of the policy to all levels of participants.

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' 4... Behavioral observation training for supervisors.

s 50 Policy implementation training for supervisors.

16.: lUnicaparticipation.

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Requirements for contractors, vendors, and suppliers to abide by the

-l company rules on drugs and alcohol.

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Law enforcement liaison.

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Chemical testing of body fluids, including the breath analyzer test for t

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. alcohol.

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Employee assistance programs.

11. A policy: implementation checklist.

.12.- Sources of additional information.

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The NRC published a final rule for nuclear. power plant licensees7 (10CFRParts2and26). entitled" Fitness-for-DutyPrograms*[Junel989 j

l(54FR24468).

Congress, as part of Public Law 100-690, Nov.18,1988, enacted Subtitle D -

' Drug-Free Workplace Act of 1989, which requires that persons other than individuals,who have beea awarded a contract for procurement of $25~,000 or more-

' l provie:e.a _ drug-free workplace. Specifically, the Act states in part:

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'SEC. 5152 DRUG-FREE WORKPLACE REQUIREMENTS FOR FEDERAL CONTRACTORS-1s (a) Drug-Free Workplace Requirement.

(1)-Requirementsforpersonsotherthanindividuals. No person, 1^

other than an individual shall be considered a responsible source, l*

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definedinsection4(8)ofthe

.under the meaning of such term as

' Office of Federal Procurement Policy Act (41 U.S.C. 403(8)), for-the purposes of being awarded a contract for the procurement of any property or services of a value of $25,000 or miore from any Federal i

agency unless= such person has certified to the contracting agency that it will provide a drug-free workplar.e by -

(A) publishing a statement notifying employees that the unlawful mansfacture, distribution, dispensation, possession, or use of a f

h controlled substance is prohibited in the person's workplace and

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specifying the actions that will be taken against employees for.

violations of such prohibition; (B)establishingadrug-freeawarenessprogramtoinform.

employees about -

(i)thedangersofdrugabuseintheworkplace;-

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(ii) the person's policy of maintaining a drug-free l'

workplace; (iii) any available drug counseling, rehabilitation, and employees assistance programs; and b

(iv) the penalties that may be imposed upor employees for drug abuse violations; (C) making it a requirement that elch esployee to be engaged in the performance of such contract be given a copy of the statement required by subparagraph (A);

r (D) notifying the employee in the statement required tty-subparagraph (A), that as a condition of employment on such contract, N employee will -

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(i) abide by the terms of the statement; and o

(ii) notify the employer of any criminal drog statute conviction for a. violation occurring in the workplace L

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no later than 5 days after such conviction; 4,

(E) notify the contractingiagency within 20 des'after receiving notien under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of such conviction; I

(F) imposing a sanction on, or requiring the satisfactory participation in:a drug abuse assistance or rehabilitation program by any employee who is.so convicted, as required by

-section 5154; and

'(G)makingagood-faithefforttocontinuetomaintaina drug-free workplace through implementation of subparagraphs (A),

(8).(C),(D),(E),and(F)."

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i Identical provisions applicable to Federal Grant recipients are contained in Section'5.53 of that Act.- All NRC licensees that fall'within the scope of a

Subtitle D aust, as a minimum, cost.iy with the drug-free workplace requirements

' for Federal contractors-and grant re:fpients.

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Discussion

-l The Commission has concluded that, although the EEI guidelines utilized in -

the power reactor industry are not appropriate for all categories offc

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, they provide a reasonable framework for the development of l

fitness-for-duty programs for some NRC licensees.

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. Licensees affected by this proposed policy statement include licensees of nonpower reactors (research and test), those'that handle sealed and unlealed sources, and those involved in fuel cycle, transportation, and waste management lactivities..-Theselicenseesaresub,jecttooneormore_oftheNR regulations-72.?

in 10 CFR Parts 30 through 35, 39, 40, 50, 60, 61, 70, 71, 72 or to ariy g

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' equivalent regulations in Agreement States. The policy statement affects about -

q 8,600 material licensees under NRC authority. The licensees are characterized by the fo11owing equipment or activities:

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'kadioactive Sources:

a Nuclear medicine diagnosis and therapy.

s Manufacturing and distribution.

.i Research and development.

Instrument calibration-Industrial radiography.

i Gauging devices and gas chttnetography.

Pool and dry irradiators.

Well-logging.-

Fuel Cycle. Transportation, Waste Storage, and Disiposal: '

Commercial Iow-level waste disposal.

Spent fuel storage.

Fuel fabrication.

Transportation.

Disposing.of or storing their own radioactive wastes.

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Nonpower Reactors:

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N The Commission believes that personnel ly involved in the abovs g7 activities who, by virtue of chemical irment, are not fit to properly

carry out their assigned duties could adversely affect public and employee j

health and safety. Staff analysis of emergency preparedness requirements for-fuel ecle and materials licensees and research or test reactors (for example, #[

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,.NUREG-1140,."A. Regulatory Analysis of Emergency Preparedness for Fuel Cycle and Other Radioactive Materials Licensees," June 1985) indicates that maximum credible accidents (perhaps caused by human factors)-at some. facilities ca t

result in hazardous radiological releases that may be-hiruful to the health and i

1 safety of' workers and the public. o Mistakes associated with operation of

radiography equipment or irradiators, with medical. administration of radioisotopes, or with storage or transportation of nuclear waste could also L'

9 result in~ serious consequences. The Commission believes that the potential consequences of accidents at fuel ecle and other radioactive material licsnsees, regardless of cause, pose a smaller risk to the public when compared to those.

1. postulated for nuclear power

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-hellhood opccidents. /t is;in t$e use and alcohol abuse' increase the q

interest'of public lth and safety to provide reasonable assurance a e

W p Li this risk.

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_ y[Q Policy Statement h

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- This statement sets forth Comunission policy on fitness' for duty for NRC-9

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.h licensed activities other than those associated with the operation or construction t

s of a nuclear power plant. The Comunission expects that all involved in the use d

or' possession of nuclear material licensed by the NRC or involved in the operation

- of nonpower reactors will not be under the influence of any substance, either legal or illegal, that could adversely affect their ability to adequately perform duties in any way related to safety. The use of illegal drugs, theJalawfe+M l

,gof over-the-counter drugs and prescription drugs, and the abuse of alcohol by those involved in NRC-licensed activitiep i unacceptable. The Cossuission "7

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expects that all licensees will establishgprograms (prpfWebly doked) appropriate to their operations to provide reasonable assurance that all involved

-in NRC-licensed activities are fit for duty and that the licensees will comply

-fully with fitness-for-duty requirements imposed on them under other legal authority (e.g., the Drug-Free Workplace Act of 1988 or Department of j

TransportationRegulations). The NRC fully supports these programs and considers

- this policy complementary to them. The NRC may from time to time ask individual licensees or groups of licensees to provide such information as the Comunission -

M may need to assess program adequacy.

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C Enforcement This Policy Statement does not limit the authority of the NRC to conduct necessary inspections or to take appropriate enforcement

-action when regulatory requirements are not met.

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/v Violations of any applicable reporting requirement or instances of a f,

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s person being unfit for duty that could potentially affect public health and i.J f[/*j*

safety will be subject to the enforcement process. Orders may be issued where.

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-necessary to achieve corrective actions on matters affecting the safety of j

Ifeensed activities.

As explained in the Commission's Enforcement Policy, Appendix C to 10 CFR Part 2, the Commission may take enforcement action where the conduct of the individual places in question the NRC's reasonable assurance that licensed activitieswillbe'properjyconducted. The Commission may take enforcement

-action for reasons that would warrant refusal to issue a license on an original application.

Accordingly, enforcement action may be taken regarding matters that raise s

issues of integrity, competence, fitness for duty, or other matters that may not necessarily be a violation of specific Commission. requirements.

Ir.

taking the enforcement action, the Commission say exercise independent

. discretion as to the standard of fitness for duty to be applied, depending on ti:e circumstances of the case and the significance of the issue to maintaining reasonable assurance of the protection of the public health and safety in the use and possession of nuclear materials. For example, the Commission _cou_1d _j e

- take action to modify, revoke, or suspend the license of an individual 1L licensed person seen as not fit for duty on standards more strict than provided M

In Part 26 if necessary to protect the health and safety of the public or other workers. Similarly, the Cosmission could take appropriate action cregarding a materials licensee where an employee was seen as endangering health

.and safety because he or she was not fit for duty.

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. Individuals who are not reliable and trustworthy, are under the ' influence j

!of. any substance, or are mentally or physically impaired in'any way that adversely I

'affects their ability to safely and competently perform their duties may not

{be licensed or. permitted to-perform responsible health and safety functions, q

. After review of comments on'the above policy statement, experience with t

existing drug-use prevention programs, and' experience with fitness-for-duty u-. programs for power ' reactor personnel, the Commission may revise its policy for-nonpower _ reactor;11censeestand material.1(censees or may enter into rulemaking -

for, either,7 oth, or all types of licensees.

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. Dated at Rockville, Maryland, this day of~

, 1989.

. For-the Nuclear Regulatory Commission.

Samuel J. Chilk, Secretary of _the Commission.

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