ML20151Y389
| ML20151Y389 | |
| Person / Time | |
|---|---|
| Issue date: | 04/28/1988 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Sharp P HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML20151Y393 | List: |
| References | |
| CCS, NUDOCS 8805040439 | |
| Download: ML20151Y389 (26) | |
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% UNITED STATES NUCLEAR REGULATORY COMMISSION
{ ,i WASHINGTON, D. C. 20565
( %, . . . . . p$ April 28,1988 CHAIRMAN l
The Honorable Philip R. Sharp Chairman, Subcommittee on Energy I and Power l Committee.on Energy and Commerce l U.S. House of Representatives i Washington, D.C. 20515
Dear Mr. Chairman:
I am responding to your letter of March 22, 1988, concerning the Commission's activities in the area of. fitness for duty standards. ,
Specifically, you expressed interest in our assessment of the J impact of our 1986 decision to issue a Commission Policy State-ment, rather than a rule, to ensure that employees at nuclear l power plants meet the highest standards for fitness for duty. i Since 1982, the Commission has been seriously concerned about the adverse effects that drugs and alcohol can have upon safe nuclear power plant operations. It was at that time that the NRC staff first reported an increasing frequency of drug-related incidents
, in the nuclear industry. We believe that in the past few years, as a result of the Commission's Policy Statement and the coopera-tion and initiative demonstrated by the industry, significant progress has been made in the development and implementation of utility programs designed to provide for their employees an environment that is free from the adverse effects of substance abuse.
The Commission's decision in August 1986 to defer rulemaking on fitness for duty in favor of a policy statement was made in recognition of an initiative by the nuclear industry to develop and implement a program more comprehensi~a than that envisioned in the staff's proposed rule. In December 1987, in accordance with plans developed at the time our policy statement was issued, the Commission was briefed by the Nuclear Utility Management and Resource; Council (NUMARC) and the NRC staff on their evaluation of the effectiveness of the industry initiative. The staff acported that, although continued improvements are needed in some areas, the industry had satisfactorily met its commitment to the Commission. The Commission believes that the progress made on fitness for duty programs has been significant and that the programs in place today are at least as effective and compre-hensive as those that would have been established under the staff's proposed rule.
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. 1 Nevertheless, the Commission has decided to proceed with rulemaking on the important issue of drug testing. Accordingly, the NRC staff is developing a notice of proposed rulemaking which should be forwarded for our review and decision within the next few weeks.
1 I have enclosed the Commission's responses to your specific questions and comments. I hope the information we have provided J l
will be of assistance to your Subcommittee in its review of this important area of mutual cor,cern.
Sincerely, I
W. M A I ando W. Ze 1, Jr 1 j
Enclosures:
- 1. Questions and Answers l
- 2. Proposed Rulemaking (47 FR 33980) i
- 3. Policy Statement (51 FR 27921) i
- 4. NRC Drug Testing Policy Statement ;
- 5. NRC Drug Testing Plan j cc: Rep. Carlos J. Moorhead
Questions and Answers QUESTION _1. Please provide a brief chronology of NRC actions with respect to the Fitness for Duty proposed rulemaking and policy statement. !
ANSWER.
March 1982 NRC staff reported increasing frequency of drug-related incidents in the nuclear industry.
June 1982 NRC staff reported results of a survey identifying elements and attributes common to better fitness-for-duty programs.
August 1982 NRC staff published (for comment) a proposed rule on i fitness for duty.
4 August 1983 NRC staff proposed a final rule (broad, nonprescriptive)
I aimed at prr.viding reasonable assurt.1ce that personnel at existing nuclear power reactors a e not under the influence of alcohol or drugs, or are otherwise unfit for duty.
July 1984 Commission approved publication of a rule.
Sharp /NRR 4/1/88
QUESTION 1. (Continued) i August 1984 Indust y agreed to develop fitness for duty criteria, provided NRC did not promulgate rule.
October 1984 Comission directed staff to write policy statement.
1 January 1985 Staff submitted a proposed policy statement on fitness for I duty. ,
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August 1985 Edison Electric Institute (EEI) published guide on developing effective policies on substance abuse / fitness for duty.
January 1986 Comission revised policy statement to reflect industry comitmen ts .
March 1986 Staff met with the Institute of Nuclear Power Operations (INPO) and the Nuclear Utility Management and Resources Council (NUMARC) to discuss policy statement.
May 1986 NUMARC endorsed fitness-for-duty policy statement.
June 1986 Comission approved fitness-for-duty policy statement.
August 1986 Comission published policy statement in the Federal Register.
Sharp /NRR 4/1/88
QUESTION 1. (Continued) '
December 1987 NUMARC and NRC staff briefed Connission on experience gained and status of implementation.
December 19E Connission directed staff to prepare a proposed rule.
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Sharp /NRR 4/1/88
QUESTION 2. Please provide a copy of the proposed rulemaking and the statement of policy.
ANSWER.
Copies of the proposed rulemaking (47 3 33980, August 5, 1982) and the policy' statement (51 B 27921, August 4, 1986) are enclosed.
Enclosures:
Proposed Rulemaking (47 8 33980)
Policy Statement (51 B 27921) l l
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l QUESTION 3. Please describe the nature of information that is reported to the Commission with respect to utility programs. For example, j l
do utilities report whether they use drug testing, counseling, etc.?
AflSWER.
Licensees are not required to report to the Commission the specific features of their fitness-for-duty orograms. Each licensee has comitted to implementing l I
fitness-for-duty programs that meet the Edison Electric Institute's "EEI )
Guide to Effective Drug and Alcohol / Fitness for Duty Policy Development."
Each licensee further committed to conduct pre-employment and for-cause drug ;
testing. In accordance with the EEI guidelines, each nuclear utility's fitness-for-duty program includes the following elements: l 1
Written policy I
Top management support Policy awareness training for employees Behavioral observation training for supervisors Policy implementation training for supervisors Sharp /NRR 4/1/88
QUESTION 3 (Continued) *
- Union briefing on the program Contractor notification Law enforcement liaison Chemical testing of body fluids Employee assistance programs Sharp /NRR 4/1/88
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l QUESTION 4. To the extent such information is available to the Commission, please inform the Subcomittee how many utilities do, or do not, include the following in their fitness for duty programs:
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(a) random drug screening; I l
(b) limited drug screening (e.g., pre-employment, for-cause);
(c) drug and alcohol abuse counseling.
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ANSWER. l l
l On the basis of the results of a survey conducted by the Institute of Nuclear Power Operations (INPO) and completed in late 1987, the Comission understands j that: ,
(a) Twenty-two of the 54 nuclear utilities use random chemical testing.
- One utility is awaiting the completion of litigation before random testing can begin.
- Two utilities reported that their State law prohibits random drug testing.
Sharp /NRR 4/1/88
i QUESTION 40 (Continued) .
- Thirty-two utilities reported that grievances or arbitrations have been I l
or are being litigated regarding fitness for duty issues; although not I specified, it is believed some of these relate to random testing.
(b) All 54 utilities reported pre-employment screening of employees. Fifty utilities utilized chemical testing for pre-employment screening of both j employees and contractor personnel. The remaining four utilities require pre-employment testing of company but not of contractor personnel. Of these four, two are in the process of revising their programs to include pre-employment testing of contractors, and one is planning to implement contractor testing in the future. The fourth utility relies on contractor programs for screening contractor personnel. l l
In the area of for-cause testing, 52 utilities currently use chemical testing. One utility is revising its fitness for duty program to include contractors and transferees into the for-cause program, and the other is awaiting completion of union negotiations before starting its for-cause testing program.
(c) All utilities have an Employee Assistance Program in place and in operation. These are programs that offer assessment, short-term l counseling, referral services, and treatment monitoring to employees (and usually family members) with a broad range of problems that could lead to mental or physical impairment, such as psychological stress and substance abuse.
Sharp /NRR 4/1/88
QUESTION 5. A study by the former Subcommittee on Energy Conservation and Power revealed that there were several hundred incident reports at the Seabrook nuclear power plant relating to drugs or alcohol in the workplace. One incident involved the discovery-of over $10,000 worth of cocaine in a controlled access area.
Apparently, the NRC was never notified of any of the incidents.
(A) Was the Commission informed of the cocaine discovery in 1986? I l
i ANSWER I l
l The cocaine discovery in 1986 was verbally communicated by the Public Service Corgany of New Hampshire to the NRC staff in July 1987. l l
Sharp /NRR 4/1/88
QUESTION 5. (Continued) '
(B) What is the NRC policy with respect to reporting incidents of drug or alcohol use in the workplace?
ANSWER.
On June 9, 1987, the Commission issued a final rule (10 CFR 73.71) revising requirements for reporting safeguards events. The rule became effective on October 8, 1987. The rule requires reporting of actual or attempted introduction of contraband into protected areas, material access areas, vital areas, or transport. Implementing guidance 'vith the rule (Regulatory Guide 5.62, Rev. 1, "Reporting of Safeguards Events") specifies that holders of operating licenses are expected to report within one hour (and follow with a written report) the illegal sale, use, possession, or introduction of a controlled substance on site; offsite sale of drugs by any employee; and offsite use of drugs by a person in a safety sensitive position; e.g., reactor operator. The guidance further specifies that all other drug events are to be recorded in a log that is submitted quarterly to the NRC. Our experience is that power reactor licensees are generally following the reporting guidance.
Neither the rule nor the guidance extends to plants under construction.
Sharp /NRR 4/1/88
@ESTION5.(Continued) '
(C) In the view of the Commission, were the large number of incidents of alcohol and drug abuse described in the report of the Energy Conservation and Power Subcomittee abnormal, or reflective of other utilities?
ANSWER.
NRC has no comprehensive historical data on the amount and severity of drug and alcohol use at nuclear construction sites.
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QUESTION 5.(Continued) .
(D) What is the policy of the Commission with respect to the i maintenance of records by utilities relating to drug and alcohol abuse?
l ANSWER.
l With the publication of revised requirements for the reporting of safeguards events (10 CFR 73.71), holders of operating licenses, effective October 8,1987, are required to (a) maintain a copy of the written report of a safeguards event for a period of three years from the date of the report, and (b) retain the log of events as a record for three years after the last entry is made in i
each log. As described in (B) above, holders of operating licenses are I i
expected, but not required by r%ui Ation, to include drug events in these '
reports. These requirements do not apply to plants under construction.
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Sharp /NRR 4/1/88
Please provide a copy of NRC regulations relating to fitness QUESTION 6.
for duty for NRC inspectors.
ANSWER.
NRC's drug testing program for its employees will be in accordance with Section 3 of the September 15, 1986 Executive Order of the President of the Uniteu States and the guidelines in Federal Personnel Manual Letter 792-16, issued November 28, 1986. The enclosed Drug Testing Policy Statement, dated July 9,1987, describes the drug policy that the Commission has approved.
The Policy Statement will be implemented in acccrdance with the enclosed NRC Drug Testing Plan, which has been approved by the Department of Justice (as required by Executive Order 12564) but is still pending certification by Department of Health and Human Services (as is reouired by Public Law 100-71).
Implementation for designated nonbargaining unit employees will begin shortly after HHS certifies the plan. Implementation for designated bargaining unit employees will not begin until implementation aspects are negotiated with the National Treasury Employees Union (NTEU).
Enclosures:
NRC Drug Testing Policy Statement NRC Drug Testing Plan Sharp /NRR 4/1/88
QUESTION 7. Does the Commission believe that fitness for duty regulations for NRC employees should be more stringent, less stringent, or the same as, regulations for reactor operators and other utility employees with sensitive roles? Please explain.
ANSWER.
The Commission believes that, to the extent possible, fitness for duty regulations for NRC employees should be consistent with those for reactor operators and other utility employees who play sensitive roles.
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Sharp /NRR i
4/1/88
QUESTION 8. Does the Coinmission have any information with respect to personnel actions (such as terminations and suspensions) taken by utilities against employees as a result of violations of fitness for duty regulations? If so, please provide such information with respect to the past three calendar years, in summary form.
ANSWER.
The NRC staff has not systematically maintained information on the nature of specific personnel actions taken against utility employees as a result of fitness for duty programs.
The staff's review of known cases of drug involvt.ocnt at nuclear power plants indicates that utility personnel actions are generally in accordance with industry guidelines developed by the Edison Electric Institute (EEI) and endorsed by the Commission's Policy Statement. In this regard, the EEI guidelines provide that:
"The illegal use, sale or possession of narcotics, drugs or controlled substances while on the job or on company property will result in discharge. The illegal sale of narcotics, drugs, or controlled i
substances off duty and off company premises will also result in !
1 discharge.
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Sharp /NRR l 4/1/88 1
QUESTION 80 (Continued) l "Illegal use of drugs off duty and off company premites is not acceptable because it can affect on-the-job perfonnance and the confidence of the public and the government in the company's ability to meet its responsibilities; such use may result in discharge.
"Employees in designated positions who are involved with illegal drugs off duty and off company premises will be imediately removed from their job assignment and tested for the presence of illegal !
drugs. The employee may be returned to the designated position only when the company receives satisfactory professional assurances that the employee's presence on the job does not present a hazard to safety or adversely impact the company in any other way.
Retention in the designated position will be contingent on the l employee successfully passing tests which verify abstention from l
illegal drug use during a reasonable probationary period."
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l Sharp /NRR 4/1/88
QUESTION 9. What is the current status of rulemaking in the area of fitness for duty? Are there any plans for proposing a rule again? If so, what is the timetable?
ANSWER.
The staff is currently developing a notice of proposed rulemaking on fitness for duty. It is anticipated that the proposed rule will be submitted to the Comission for its consideration in early May 1988.
Sharp /NRR 4/1/88
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QUESTION 10. What is the Comission's view with respect to drug screening programs? I would appreciate the individual views of the Commissioners on this question. ,
ANSWER.
The Commission believes that drug-screening programs represent one important element of a comprehensive program needed to deter drug use and to detect drug users in the work place. Screening programs can be used to provide reasonable assurance that workers are not under the influence of drugs and are fit to perform their duties. A program that includes screening to both deter and detect drug abuse is considered to be especially important at operating nuclear power plants, where unmonitored actions by individuals could potentially impact the public health and safety, i
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Views of Chairman Zech on Random Drug Testing Programs:
My position has consistently beer. that there should be no tolerance of drug use in either the nuclear industry or in the NRC. To this end, I have encouraged and supported rigorous drug programs which include random drug testing.
When the NRC issued its drug policy over a year ago, rigorous drug programs were a new idea for industry in general. Given the unsettled questions concerning potential legal challenges to industry programs and the various situations of individual utilities (i.e. , some utilities are Government entities subject to constitutional restrictions), it was appropriate, in my judgment, to give the industry broad guidance which encouraged tough drug programs, without the NRC trying to dictate by rule exactly how individual drug programs should be designed.
Today, many of the legal questions surrounding drug testing have been the subject of judicial scrutiny, and both the industry and the country have more experience with drug testing. The NRC staff, at the Commission's request, is in the process of developing for Commission consideration a :
fitness-for-duty rule which will provide requirements for i l
programs aimed at substance abuse. Just as I have supported i random drug testing by the NRC for at broad a group of NRC l employees as the law will allow, I expect to support NRC regulations which would require effective random drug testing at NRC licensees.
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Views of Conmissioner Roberts on drug screening programs:
I strongly oppose the use of illegal drugs. I support a policy of "zero tolerance" for the abuse of drugs and alcohol in the workpl6ce. However, I have misgivings about mandating measures that may be found to be unconstitutional. Therefore, while i have voted for the "Fitness for Duty"policystatement(whichaffectsnuclearpowerplantworkers)andthe "Drug Screening" policy statement (covering our own NRC employees), I have emphasized both the need for credible tests and constitutional right of
- appeal.
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l Comments of Commissioner Bernthal on drug screening programs:
My views with regard to druo screening programs for nuclear power i plants are well established. In memoranda of 31 October 1905 (CONFR l 85-16),2.5 June 1986, and 14 September 1987 (COMFB 87-6) I spoke I vigorour .o the need for prompt action by the Commission to provide clear dn action to the Industry to implement such procrams. In an attempt to expedite the process, I personally drafted an alternative policy statement (CONFB 85-16) for Commission consideraticn.
Simply put. I continue to support what is now record Commission policy
...that the sale, use, or possession of alcoholic beverages or illegal drugs within the protected area at nuclear power plants is unacceptable", and that licensees be required to establish drug l screening programs that provide reasonable assurance that all nuclear power plant personnel with access to vital areas are fit for duty.
As noted in rcsponse to your other questions, the Commission will soon be considering a proposed rule that should address the elements of a fitness for duty program considered necessary to meet the Commission's i policy objectives. l As for NRC employees, it is my view that, to the ext ,t practicable, I fitness-for-duty regulations for NRC personnel should be consistent l with those for utility employees in comparably sensit.ve positions of l public and safety responsibility. Specifically, I suppnrt the recent l Commission plan to institute random druo testing of certain classes of '
NRC empicyees in such sensitive positions.
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Comnissioner Carr's Views on Drug Screening Programs:
I support implementation of drug screening or "fitness for duty" arograms for our licensees as well as for our own employees. Our policy s1ould be zero tolerance; our objective should be a drug-free workplace which in turn will enhance our confidence in the safe operation and maintenance of the plants we license. Fitness for duty pro testing, random testing, aad "for cause"grams should include (or reasonable pre-employment suspicion) testing as essential elements.
NRC and the industry have made substantial progress in implementing fitness for duty programs. The NRC's 1986 policy statement adopts in essence a zero toicrance policy and endorses guidelines, developed by the Edison Electric Institute (EEI) for effective fitness for duty programs. At this stage, according to a December 1987 report of the Institute for Nuclear Power Operations, all 54 nuclear utilities have fitness for duty policies that address on and off site drug use. Fifty utilities use chemical testing for pre-emplopnent screening and 52 utilities use testing "for cause". As might be expected from the controversy over random testing efforts in both the public and private sector, only 22 utilities had random testing programs.
The Commission has instructed its staff to draft a proposed rule that would add to our regulations a requirement for utilities to implement a fitness for duty program. While the industry is to be credited for its initiatives to date under our policy statement and the EEI guidelines. I believe that the addition of a requirement for fitness for duty programs to our regulations would provide greater impetus toward achieving our goals in this area and strengthening weak spots, such as in random testing, ur. der our current policy. I note that the Senate Comittee on Environment and Public Works reported the NRC's authorization bill the other uay with an amendment that would require rulemaking on fitness for duty. While I have not fully studied that proposal, it appears to me that the contents of a rule under that amendment are generally consistent with n views on the appropriate scope of a rule.
To provide leadership to the industry we regulate, I believe it is also impor+ ant that we implement a fitness for duty program for our own employees. We have adopted and issued our basic policy to our employees, consistent with the President's program and recent legislation. WRC programs have been submitted to the Department of Justice, the Department of Health and Human Services, and the Office of Management and Budget for {
review in a:.cordance with Public Law 100-71. We have received approval of our program from the Department of Justice as of March 10, 1988. I hope we can begin implementation of our program within a few months.
I recognize that scoe are concerned over the efficacy of testing and its potential tbuse. However, the accursey of screening tests is very high and rigorous testing methodology and procedures can be adopted to minimize the chance of error. In this regard, I comend to you the guidelines published by the Department of Health and Human Services for Federal programs which 1
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I set stringent quality assurance procedures for screening programs and laboratory analysis. See 53 Fed. Reg. 11970 (April 11, 1988). Despite ,
uncertair. ties in the legal arena ever some aspects of testing programs, !
I believe that the Comission should move forwerd and adopt fitness for !
duty regulations that will enhance our efforts to assure protection of l the public health and safety.
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Views of Connissioner Rogers on drug screening programs:
I hold very stro9 gly the view that a nuclear facility, (power plant, processing plant, waste disposal facility, or applications of nuclear materials facility) is no place for the presence of individuals impaired by the influence of illegal drugs or alcohol. Policies and practices of licensees and the agency (NRC) itself must be as strong and vigorous as possible to exclude such individuals from nuclear facility work places.
In my view, a screening program is a vital part of any practice developed to ensure fitness for duty in the work place.
A screening program rnust contain a testing element to be credible. How this screening program is to be organized and carried out on a regular basis needs to be carefully planned. I would be willing to accept several different ways of constructing such a program.
Certain elements must be present, but precisely how they must be combined I e not prepared to define. The essential elements in my view are:
o Daily frequency of screening activities on site o Random selection of individuals #
o Applicability to all employees and contractors on site o Chen,1 cal analysis o Other screening techniques t . _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - -