ML20245C745

Fitness for Duty in the Nuclear Power Industry:Responses to Public Comments

ML20245C745
Person / Time
Issue date:	05/31/1989
From:	Bush L, Grimes B Office of Nuclear Reactor Regulation
To:
References
FRN-54FR24468, RULE-PR-2, RULE-PR-26 AC81-2-079, AC81-2-79, NUREG-1354, NUDOCS 8906260271
Download: ML20245C745 (265)

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r NUREG-1354. I L

i Fitness for Duty in the q

. Nuclear Power Industry: i

Responses to Public Comments i

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U.S. Nuclear Regulatory Commission

Office of Nuclear Reactor Regulation

. Loren L. Bush, Brian K. Grimes p?" ""*%

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e906260271 890531 P UREG PDR qg

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I NUREG-1354 Fitness for Duty in the Nuclear Power Industry:

Responses to Public Comm.ents 1

1 Manuscript Completed: April 1989 Date Published: May 1989 -

Loren L Bush, Ilrian K. Grimes l

Division of Reactor Inspection and Safeguards Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Wasliington, DC 20555 4

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ABSTRACT The NuclearRegulatory Commission published for public comment a proposed rule concerning the fitness for duty of commercial nuclear power plant workers (53 FR 36795).

The proposed rule focused on methods for controlling the use of substances that may affect the trustworthiness and performance of workers. It provides for chemical testing, behavioral observation, employee awamness and education, and empl,oyee assistance programs as meansf_ or assuring fitness for duty. This report iummanzes the comments received on the proposed rule and provides the staff resolutions of the issues raised by the comments.-

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TABLE OF CONTENTS 1.0 INTR O DU CI'I ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 - 1 1.1 Backgtound....................................................................1-1 1.2 The Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 - 1 1.3 Organization of the Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 - 1 2.0 METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2- 1 2.1 Loggin g of Letters and Comments............................................ 2- 1 2.2 Comment Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2- 1 2.3 Comment S summarization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 2.4- Comment Respon se s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 3.0 GENERAL PERFORMANCE OBJEC71VES AND NEED FOR RULE ........ 3-1 3.1 Need for Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 - 1 3.2 Accomplishing General Performance Objectives............................ 3-3 3.3 Impairment vs. Trustworthiness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6 3.4 Uniform Program S tandards versu s Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3- 12 3.5 O ther Is sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3- 15 4.0 S COP E OF RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4- 1 4.1 Non-Power Reactors and Other Licensees................................... 4-1 4.2 Co nstru cti on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 -2 4.3 Types of Workers Covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-2 4.4 Co n t ra c t ors a n d Ve n d ors. .. .. .. . . . .. . . .. . . . ... .... . . . .. . . . . . . . . .. . . . .. . . . .. . . . 4-4 4.5 TS C and EOF S t aff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7 4.6 NRC S taff and NRC Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-8 4.7 - O the r I s s u e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 - 9 5.0 IMPLEMENTATION S CHEDULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5- 1 5.1 Implementation Schedule Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-1 6.0 OTHER CAUSES OF IMPAIRME NT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6- 1 6.1 Alcohol..........................................................................6-1 6.2 Lega1 Drugs.....................................................................64 6.3 Additional Sources of Impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6- 10 6.4 O ther Is sues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6- 14 7.0 RAND OM TESTI NG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 - 1 7.1 Opposition to Random Testing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7- 1 7.2 Support for Random Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3 7.3 Altematives to Random Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-4 v

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7.4 Te stin g Rat es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9 7.5 O ther Is s ues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7- 14 8.0 FOR-CA U S E TESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 - 1 8.1 Suitability of For-Cau se Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8- 1 8.2 Initia tio n o f Fo r-Ca n se Tes tin g.. .... ... ... . .... .... .. .. .. .. .. .. . .. . ... . .. ... . . 8-2 8.3 Post- Accident Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-6 8.4 O ther Is sues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-7 )

9.0 RELIABILITY OF TEST RES ULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9- 1 9.1 Standardized Procedures Required to Minimize Errors ....... ............. 9-1 9.2 Other Sources of Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-5 9.3 Altematives to Urina1ysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-6 10.0 G UIDELINES FOR DRUG TESTING PROG RAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10- 1 10.1 Applicability of HHS Guidelines to the Nuclear Power Industry.........10-1 10.2 Limitations in the Panel of Drugs for Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-3 10.3 Cutoff Levels Defined for Screening and Confirmatory Tests ............10-6 10.4 On-Site Testing Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10- 10 l

l 10.5 HHS -Certified Laboratories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10- 13 10.6 Requirements for Review of Test Results b Officer. . . . . . . . . . . . . . . . . . . . . . . ...................................10-16

. . . . . . . . . . . . .. . . . . y a Medical Review 10.7 Split tin g Specimen S amples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10- 19 10.8 O ther Is sues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10- 19 11.0 TRAINING..............................................................................11-1  !

i 11.1 S cope of Traini n g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 - 1 11.2 Policy Communications and Awareness Training ..........................11-1 11.3 S upervisory and Escort Trainin g..... .... ................... .............. ....11-2 11.4 Behavioral Observation Techniques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 -4 11.5 Refresher Trainin g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 -5 11.6 O ther Is s ues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 -6 l 12.0 S ANCTIONS AND OTHER MANAGEMENT ACTIONS........................12-1 12.1 Determination of the Type and Severity of Sanctions ......................12-1 12.2 Access D e n i a 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 - 3 12.3 Referral to an Employee Assistance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-9 l 12.4 Re habilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12- 10 l 12.5 Access R ein s t a t eme n t. . . ... ... .. .. .. . . .. . ..................................12-12 i

12.6 Follow-up Testin g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12- 14 12.7 O ther Is sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12- 16 vi

r 13.0 EMPLOYEE ASSISTANCE PROG RAM S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13- 1 13.1 Scope of "' " '~ ices.........................................................13-1 13.2 EAP Confidewa.ny .x.. Access Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-2

-13.3 EAP Certification Standards and Personnel Qualifications ................13-5 13 .4 Other Is su es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-5 14.0 INDIVIDUAL RIG HTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1 14.1 Confiden tiality of Records and Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14- 1 14.2 Appeals and Grievance Proced ures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14- 6 14.3 Acces s to Personal Record s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-9 14.4 Use of Specimen Samples for Other Purposes..............................14-10 14.5 O t her Is sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 - 1 1 15.0 RELATIONSHIP TO ACCESS AUTHOR 1ZATION...............................15-1 15.1 General Performance Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 15- 1 15.2 What is an Appmpriate "S uitable Inquiry?" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-2 15.3 Pre- A cce s s Che mic al Te s tin g.. .. .. . . .. .. .. .. .. .. . .. .. . . . . .. .. .. .... .. . . . .. . . 15-5 15.4 Ot her Is s ue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15- 6 16.0 INS PECTIONS, RECORDS A ND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16- 1 I l

16.1 Fitness-for-Duty Program Performance Data Form ........................16-1 16.2 Reportin g Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-3 16.3 NRC I n s p e c t i o n s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-7 16.4 Reeord. R e t e n t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-9 16.5 Other Is sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16- 10 17.0 AUDITS OF FITNESS-FOR-D UTY PROG RA M S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17- 1 17.1 Type s o f A u di ts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 - 1 17.2 A u d i t s o f Co n tra c t o rs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17- 1 17.3 Auditor Qu alifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-2 17.4 Freque ncy of Audit s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-3 17.5 Other I s sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17- 3 18.0 LEGAL ISSUES.......................................................................18-1 18.1 Constitutionality issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18- 1 18.2 Fed e ral R e h a bilit a tio n A c t.. .. ... . .. . ....... .. .. .. .. . . . ... . .... . .. .. . .18-3 18.3 Preemption of State and Local Law.... ....................... .. ... .. ....18-3 18.4 Public Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......18-5 18.5 Collectiye Bargaining..... .... ... ................................18-5 18.6 Employee Assistance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-6 18.7 Administrative Procedures for Alcohol.. . . . .. . ... ... . ... . . ...I8-6 vu

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l 18.8 Ot her I s s ues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 -7 19.0 COSTS /B ENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19- 1 1 19.1 Costs to Administer the Testing and Training Programs...................19-1  ;

19.2 Costs of Employee Assistance Programs (EAPs)...........................19-4 19.3 Costs of Legal Challen ges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-4 )

19.4 Indirect Costs to Workers from False Positives.............................19-4 19.5 O ther I s sue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-5 RE FE RE N CE S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R 1 APPENDIX A: Numerical List for Public Comment Letters........................ .....A-1 APPENDIX B: Alphabetical List for Public Comment Letters ...........................B-1 APPENDIX C: Numerical Lis: for Public Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .C- 1 APPENDIX D: Alphabetical List for Public Meetin g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .D- 1

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i ACKNOWLEDGMENTS -

The NRC would like to acknowledge the valuable assistance provided by the Pacific Northwest Laboratory (PNL) and Battelle's Human Affain Research Centers (HARC) in the analysis of the comments and the xeparation of the manuscript. Mr. Walter Scott and Mr. James Christensen of PNL provic ed project management oversight and technical' expertise. In particular, the NRC acknowledges the contributions of Dr. Valerie Bames and Dr. Jon Olson, who served as HARC principal investigators, as well as Tom Grant,

Dr. Patricia Bolton, Susan Stmam, Terri Koval, Gail Baker, Kate Baker, Joe Hauth, Jan Hendrickson, Barbara Kono, Chris Moore, Matt Rowley, Doug Wieringa, and Ron

- Wih on of HARC, and Paul Hendrickson and Dan Moon of PNL. Their timless effort was

- a major factor in the completion of this document.

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ix V

1.0 INTRODUCTION

This document presents the public comments mceived in msponse to the U.S. Nuclear Regulatory Commission's (NRC) proposed new Part 26 to 10 CFR, entitled " Fitness-for-Duty Program," and the staffs resolution of those comments.

1.1 Background

On August 5,1982, the Commission published for comment a proposed rule to req, tire licensees to develop and implement written procedures concerning fitness for duty (47 FR 33980). Subsequently,in recognition ofinitiatives and commitments inade by the industry to develop and self-manage fitness-for-duty programs, the Commission decided to defer implementation of the rule, to issue a policy statement to further encourage such self-improvement, and to reconsider the need for rulemaking after evaluating the experience gamed under the industry prcgram. The Commission's Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel was published in the Federal Register on August 4, 1986 (51 FR 27921). On December 1,1987, the Commission was briefed by the Nuclear Utility Management and Resources Council (NUMARC) and the NRC staff on the experience gained to date and on the status ofimplementation of the Commission's fitness-for-duty policy statement. Based upon the information obtained during this briefing, the ,

Commission directed the staff to prepare and publish a proposed fitness-for-duty rule. q 1.2 The Commenu The proposed Fitness-for-Duty Program was published for public comment in the Federal Register on September 22,1988 (53 FR 36795). The comment period closed on i November 21,1988. Thee hundred seventy-eight comment letters were received. On ,

October 17,1988, a public meeting was held in Rockville, Maiyland at which Dr. J.

Michael Walsh and Commander John Irving from the National Institute on Drug Abuse, l members of the NRC staff and their contractor answered questions and received additional I I

cornments on the proposed rule. The meeting was transcribed and those comments have been considered along with the written comments submitted during the public comment period.

i Individual comments were received pertaining to all sections of the proposed rule and to the  !

Commissioner questions published with the proposed rule in the Federal Recister notice (FRN). As will be discussed in gmater detail in Section 2.0 of this document, the individual comments that made the same or similar points were compiled and all individual  ;

comments were paraphrased for presentation in this document. I 1.3 Organization of the Reoort This comment msolution document is divided into 19 sections. Section 2.0 describes the methods that were used to identify and trach individual comments within each comment l letter received, to categorize and compile those comments, and to ensure that each issue raised by the commenters was addressed. Sections 3.0 through 19.0 present the compiled j comments and the staffs resolutions of those comments, organized by subject matter as l follows: )

3.0 General Perfonnance Objectives and Need for Rule 4.0 Scope of Rule 5.0 Implementation Schedule 6.0 Other Causes ofImpairment 1-1

7.0 Random Testing 8.0 For-Cause Testing 9.0 Reliability of Test Results 10.0 Guidelines for Drug Testing Programs 11.0 Training 12.0 Sanctions 13.0 Employee Assistance Programs 14.0 IndividualRights 15.0 Relationship to Access Authorization 16.0 Inspections, Records and Reports 17.0 Audits of Fitness-for-Duty Programs 18.0 LegalIssues 19.0 Costs / Benefits Within each of these tophal sections the summarized comments are presented with their accompanying responses. At the end of each comment summary is a list of the docket numbers assigned to the letters from the commenters making the specific point in question.

Appendix A provides a list cf he docket numbers and associated names and affiliations to t

enable the reader to identify who raised each of the points.

To enable commenters to identify the comments that they submitted, and to locate the staffs responses, Appendix B presents a list of the comtr. enters, by name or by organization as appmpriate, and the subsection numbers where their comments are to be found. Appendix C and D provide the same type of cross-referencing with respect to comments made at the public meeting (comment numbers preceded by "M"). Each commenter can use this list for cross-referencing to find how each of his or her comments were addressed by the staff.

Because of the Commission's desire to expedite comment resolution and publication of the fmal rule, the full extent of the staffs research into technical issues and the rationale for each provision of the rule are not pmvided in the response to each compiled comment.

Instead, commenters are referred to the publicly-available documents that have been prepared in support of this rulemaking and contain the information to address particular points. For example, comments in Sc: tion 7.0 pertain to altematives to raridom chemical testing. Many of the alternatives mentioned by commenters were thoroughly evaluated by i the staff before the requirement for random chemical testing was included in the proposed rule, and detailed information reganiing this evaluation is available in NUREG/CR-5227, Fitness For Duty in the Nuclear Power Industry: A Review of Technical Issues.

Additional research on the technical issues is reported in Supplement I to NUREG/CR-5227. An overview of the staffs evaluation of these alternatives will be published in the supplementary information accompanying the publication of the final rule in the Federal Register, here referred to as the Federal Register Notice (FRN). Specific guidelines for chemical testing can be found as an appendix to the FRN.

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L 2.0 METHODOLOGY

' This section outlines the methodology used in responding to the public comments. The

. methodology includes provisions for logging'of letters received and of comments made during the public meeting, the identification of specific comments within each letter, the combination of similar comments from different letters into summary comments, and the writing of responses to each summary comment. This section describes the quality assurance procedums that were used at each step to assure that comments received fair consideration. A diagram of the steps in the process can be found in Figure 2.1.

2.1 Loenine of Letters and Commta(E The Federal Register Notice of September 22,'1988 provided for a public comment period of 60 days. The NRC guaranteed that comments received prior to November 21,1988, would be considered in the rulemaking process. In addition, the NRC stated that comments received after the deadline would be considered if possible. The notice also announced a public meeting on the rule.

x The NRC mceived 375 letters contaming comments in response to the notification of rulemaking and thme additional letters providing clarification to letters previously received.

Thus, a total of 378 letters wem received in a timely enough manner to be considered in this document. Following the receipt of the letters, each was logged into the NRC's docketing process and was assigned a unique docket number for this rulemaking. The sequential docket numbers have been mtained as the identification numbers used in this report.

After the letters were docketed, copies were made and sent to the Pacific Northwest Laboratory, and its subcontractor, Battelle's Human Affairs Research Centers for analysis.

2.2 Comment Identification The key to an accurate and fair teatment of the commenter's concerns is the identification  !

of what constitutes a comment. Three staff members with detailed knowledge of die proposed fitness-for-duty rule were assigned the task of comment identification. The process entailed the first reviewer examining each letter and the public meeting transcripts to identify the separate and distinct points that the writer or speaker had made. The reviewer would circle the part of the text that was judged to constitute a separate comment. ,

The reviewer also proposed categories for the various comments.

The next step involved a second reading of each document to determine if the second reviewer concurred with the first reviewer's identification and categorization of the comments.' A third reviewer was used to help resolve differences of opinion. i Once there was agreement as to the distinct comments within each document, sequential comment numbers were assigned. These numbers were of the form XXX.YYY where XXX refers to the docket number assigned by the NRC, and YYY refers to the sequential comment number within each letter. For example, the one hundredth distinct comment identified in letter 275 would be logged as 275.100. Comments from the public meeting were assigned . sequential numbers with the prefix "M". The number of distinct comments in individualletters ranged from 1 to almost 200. Including comments from the public meeting transcript,3,079 distinct comments were identified through this process.

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h lm Letters received at NRC and docketed t

letters copied and sent to Contractor

+

, Comment identification / categorization by first reviewer k'

Comment verification / categorization by second reviewer

^

1r Concurrence discussions held as necessary with thirdreviewer V .

l Comments given identifying numbers  ;

i V

Originalcomments organized by established comment categories  !

+

Individualcomments combined 2 Check made that all ,

into summary comments commentsincluded

_l V

Summary responses prepared with NRC staff  ;

t i Check made that all i Summary responses reviewed 4_.-

by seniorNRC staff comments have been )

mg i t

Comment / response document and cross-referencing provided to NRC for finalreview and publication FIGURE 2.1: Comment Identification and Response Process i

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2.3 Comment Summari7ation Some of the comments received were identical or very similar to one or more of the other comments or represented different aspects of the same issue. To make the comment and response document of a manageable length, and to improve its readability and usefulness to the public, highly similar comments were grouped into summary comments. Care was taken in the grouping process to preserve the entire range of commenters' pomts or questions.

As a first step, a copy of each separate comment was created. The 3,079 comments were categorized into 17 categories. Staff then determined which of the individual comments in a category could be paraphrased into summary comments. All paraphrased and summarized comments were reviewed by two senior staff members.

2.4 Comment Resoonses Once the task of creating summarized comments was completed, the next task was to provide responses to each of the summarized comments. Staff were assigned to comment categories based on their knowledge of the subject matter and their familiarity with the rule.

Working with the NRC staff, contractor staff developed draft responses that were then passed on to a senior NRC staff member for review. Necessary changes were made to the draft responses and the comment / response packages were sent to the NRC for review by the NRC staff directly responsible for the rule development. Changes were made where needed to clarify the rule's intent. The final comment / response document was provided to the NRC for publication with the final rule.

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3.0 GENERAL PERFORMANCE OBJECTIVES AND NEED FOR RULE 1

The commenters in this section raised several issues regarding the need for the rule and the ability of the proposed rule to meet the stated general performance objectives. The commenters discussed the need and rationale for the rule, issues of worker impairment and trustworthiness, methods to accomplish the general performance objectives, and the need for program uniformity versus the need to allow licensee flexibility to implement the program elements and procedures. Other issues related to the need for the rule and the general performance objectives were also raised. These additional comments included general statements of support for the rule, general and conditional support for the Nuclear Management and Resources Council (NUMARC) comments on the proposed rule, responses to the Commission's question on practical altematives to substance abuse detection methods in the workplace, and other recommendations for specific changes to the general provision sections and general performance objectives of the proposed rule.

3.1 Need for Rule General support for the rule was received from a number of commenters. However, a number of commentes questioned the need for the rule, based on the prevalence and incidence of substance Obuse in the nuclear power industry. Other commenters questioned whether the proposed ru e was necessary, since licensees have established fitness-for-duty programs.

3.1.1 Comment

Many commenters gave general endorsement to the hroposed rule.

Reasons given for endorsement included the belief that the rule's adoption would provide i uniform standards by which to promoto employee and public safety, that the rule reflects an understanding that drug testing alone will not insure worker fitness-for-duty, and that it acknowledges the complexities of the issues that it addresses. Many of the commenters ,

suggested changes in some aspects of the rule, however. (Letter Numbers: 4;20;224; j 272;275; 281;304;305;316;317; 318;319;328;337;342;347;376. See also )

J subsections 3.5.23 and 3.5.24.)

. Resoonse: The NRC appreciates the expressions of general support for the rule I and concms with the commenters that action is necessary to minimize the risk to public health and safety stemming from fitness-for-duty problems, particularly substance abuse.

The vadous commenters' suggestions for changes in the rule have been addressed elsewhere in this document.

3.1.2 Comment

A number of commenters maintained that the NRC has not demonstrated that there is a sufficient, industry wide threat to public safety due to on-site drug intoxication to warrant the burdens on the worker and the licensee resulting from the fitness-for-duty rule. Several of the commenters point out that existing security programs and safety features are adequate to deal with the small drug problem that does exist. (Letter Numbers: 1;3;5;I6;229;265; 276;291;298;310;315;329; 332; 342)

Response: The NRC disagrees with the commenters' assessment that current industry programs are adequate to deal with the growing number of fitness-for-duty problems arising in the nuclear power industry. Reports obtained by the NRC suggest that l l

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the level of drug- and alcohol-related impairment within the nuclear power industry is not I insignificant and warrants regulatory action. The safety significance of the problem

! justifies the additional burden placed on the worker and the licensee. Existing regulations are not adequate to assure an aggressive and standardized drug testing program. See:

FRN, Supplementary Information, Section 2.2; NUREG/CR-5227, Chapter 2.

3.1.3 Comment

A few commenters stated that the rationale developed to support the rule is based on tenuouu unfounded assumptions and the NRC has failed to rely on scientific data other than that which serves its interest. (Letter Numbers: 251;302.

Meeting Comment: M-1.14.)

Resnonse: The NRC closely monitors trends in reportable events involving drug use and believes that drug use constitutes a sufficiently significant problem to warrant action. Its decision to use random drug testing was made after careful consideration of available scientific studies and possible alternatives. See: FRN, Supplementary Information, Section 2.2; NUREG/CR-5227, Chapter 2.

3.1.4 Comment

One commenter felt that the proposed fitness-for-duty rule would recuire nuclear utilities to address a societal responsibility that has already been addressed by Federal and State laws, and thus, the rule is not needed. (Letter Number: 24)

Resnonse: The NRC disagrees with the commenter's assessment that the proposed rule is unnecessary in light of currently existing Federal and State laws. The NRC believes that additional provisions are necessary to address the unique needs of the nuclear power industry, preempt State laws and arbitration rulings that inhibit development of adequate fitness-for-duty programs, and ensure that the objectives of public health and safety are maintained. l 3.1.5 4

Comment: Two commenters stated explicit support for the NRC position that chemical testing provides a masonable means to determine if there has been drug use, and, 11 so, to reasonably conclude that there is a potential for subsequent impairment which can pose a safety hazard. (LetterNumber: 307. Meeting Comment: M-1.25.)

Resnonse: The NRC agrees that chemical testing is an essential component of a fitness for duty program, and that there is reason to believe that the test results can identify workers who may create safety risks.

3.1.6 Comment

One commenter stated that while the goals of the proposed rule are necessary and important, the means proposed within the rule to accomphsh these goals are disturbing. (Letter Number: 360)

Resnonse: The NRC has evaluated a number of potentially viable strategies for attaining the performance objectives of the rule, and believes that the combination of methods in the rule are both fair and effective, and assure adequate protection to those being tested.

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3.1.7 1

Comment: One commenter stated that his union has already addressed the l concerns of a drug free workplace, and that a great number of the union members are active I in anti-drug programs. (LetterNumber: 32)

Resoonse: The NRC mcognizes and appreciates the attitudes and activities of l most nuclear power plant personnel. The NRC in no way thinks that any but a minority j either currently do or potentially would use drugs. However, the risk to public health and 1 safety from illegal drug use, and the possibility of impairment from other causes requite that the NRC proceed with this rulemaking.

I 3.1.8  !

Comment: Two commenters stated that the rule is necessary in order to create an industry-wide standard drug testing contractors are currently experiencing m, program which would eliminate differe utilities. (Letter Numbers: 58; 272)

Resoonse: The NRC concurs with the commenters' statement that an industry-wide fitness-for-duty rule is necessary to establish uniform cutofflevels for licensee drug testing programs. However, the NRC believes it important that licensees have the flexibihty to apply more stringent standards. Contractors can avoid problems with varying levels by setting stringent standards, such as low cutofflevels for their own programs. l

3.1.9 Comment

Several commenters stated that current fitness-for-duty programs ,

provide effective and adequate assurances that industry workers operate in a substance-free environment, making the rule unnecessary. Further, the lack of uniformity is not an indicator of ineffectiveness but of uniquely designed programs that best meet the needs of individuallicensees. (Letter Numbers: 16;228;282;289;303;313;340;344)

Resoonse: Although the data do not indicate an overwhelming drug problem at nuclear power plants, they do provide strong evidence of an undesirable level of drug use by those employed in the nuclear power industry. Pursuant to the NRC's statutory authority to protect the public health and safety, the NRC must acknowledge that nuclear power plant workers are not immune to, nor insulated from, drug use or abuse of substances that may adversely affect safety-criticaljob performance. The NRC believes that any drug use in the nuclear power industry warrants prevention and proactive intervention by the NRC to ensure public safety. The NRC believes that this view is consistent with the increasing awareness of nuclear power licensees that have, as addressed in their comments, drug testing and rehabilitation programs for their workers. The NRC's rationale for establishing uniform industry standards is to ensure that licensee fitness-for-duty programs maintain the objectives of public health and safety. The NRC's investigation of licensee fitness-for-duty programs revealed a significant lack in key program elements necessary to address the full spectrum of fitness-for-duty problems that exist in the nuclear power industry. See proposed rule at 53 FR 36796; FRN, j Supplementary Information, Section 2.2; NUREG/CR-5227, Chapter 2.

l 3.2 Accomolishine General Performance Objectives i A number of commenters questioned whether the program elements and procedures in the proposed rule were adequate or appropriate to accomplish the general performance .

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objectives. Commenters also remarked on the abilities and limitations oflicensees to implement the general program elements and procedures.

~3.2.1 Comment: A number of commenters stated that the proposed rule is fundamentally flawed and will not accomplish the goal of a workforce free from the effects ofimpairing substances. Most of these commenters requested that the Commission withdraw the rule as currently written. (Letter Numbers: 223;229;257;302;308;338)

Resoonse: The NRC believes that the final rule will accomplish the performance objective of a workplace free of the effects ofimpairing substances.

3.2.2 Comment

Several parties responded to the Commission's Question No. 2 in

. the Appendix to the proposed rule by statmg that it is not necessary for the NRC to require licensees to take specific measures such as searches and investigations to deter on-site sale, possession, or use of alcohol and drugs and to achieve early detection should these problems exist. These commenters stated that sufficient measures are currently in place to ensure effective fitness for duty program performance without the additional measures identified in the Commission's question. Two commenters n: commended that all four of the measures identified by the Commission should be required. (Letter Numbers: 269; 275;326;329;330;339;349;358;376;377. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC will not at this time mandate the four specific measures I

identified in its Appendix Question No. 2 that would be meant to deter on-site sale, possession, or use of alcohol and drugs and to achieve early detection should these L problems exist. Several licensees reported that sufficient measures are cmrently in place to deter this behavior. The Commission will continue to monitor the effectiveness of licensees' efforts in this regard.

3.2.3 Comment

One commenter recommended that the Commission clearly express its intent to fully enforce the provisions of this rule and to ensure that licensees are canying out theirresponsibilities. (LetterNumber: 4) i Response: The NRC agrees with this commenter and has included amendments I

to Appendix C,10 CFR, Part 2 (Enforcement Policy) to clearly express its intent to fully enforce the provisions of this rule and to ensure that licensees are carrying out their responsibilities.

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3.2.4 Comment

Two commenters supported Commissioner Roberts' position that {

the proposed rule is insufficient and may not satisfy the stated performance objectives.

(LetterNumben: 60;302)

Resoonse: The NRC believes that the final rule will satisfy its stated performance objectives.

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3.2.5 Comment

One commenter stated that many utilities will not comply with the rule due to court actions, union agreements and other factors. Those that do will be those utilities that voluntarily complied with the fitness-for-duty program three or four years ago.

(Letter Number: 2)

Resnonse: It is the intention of the NRC to preempt any obstacles to implementation of an adequate fitness-for-duty program and to assure the compliance of all licensees covered under the scope of the proposed rule.

3.2.6 Comment

One commenter stated that because measures of effectiveness for a fitness-for-duty program have not been established, the term " effective" can only be defined in a subjective manner. The commenter further stated that licensees should only be held responsible for compliance with the regulation, and not for program effectiveness.

(LetterNumber: 343)

Eesoonse: The NRC believes that alllicensees are responsible not only for complying with the provisions of the final rule, but also in striving to establish effective programs that will directly combat fitness-for-duty problems within the nuclear power mdustry. The NRC has purposely left the licensee considerable discretion in several areas and must, therefore, reserve the right to evaluate the licensee's effectiveness in attaining the objectives of the rule.

3.2.7 ,

Comment: One commenter was skeptical about the effectiveness of the rule stating that if current fitness-for-duty policies are not an adequate deterrent to substance abuse,it is unlikely that additional policies will meet this goal. (Letter Number: 59)

Resnonst: In on:ler to enhance the assurance of public health and safety, the 1 NRC believes that, although some current licensee programs may provide adequate deterrence to substance abuse, certain deterrence strategies with proven effectiveness, such as random testing, should be uniformly applied to create an environment which is free of drugs and the effects of such substances.

3.2.8 Comment

One commenter stated that the adoption of the proposed rule would cast the Commission in an adversarial role with the industry. (Letter Number: 334)

Resnonse: Because there are numerous supporters within the nuclear power industry who recognize the necessity and importance of the rule, the NRC does not believe I that the rule will cast the NRC in an adversarial role with the industry. More importantly, it is the NRC's finit responsibility to assure that the industry adequately protects public health and safety.

3.2.9  ;

1 Comment: One commenter stated that the proposed rule will fail because it does )

not adequately consider the need for fairness and cooperation towards industry workers.

(LetterNumber: 350) i l

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I; (J . Resoonse:

. The NRC believes that the rule incorporates a number of significant measures to ensure that provisions of the rule are applied fairly and with industry worker support. These include provisions for the protection of individual rights, confidentiality, rights of appeal, and standardization of stagent quality assurance measures in drug testing programs.

-3.2.10

' famment: One commenter stated that additional investigation is needed to establish methods for determining whether an individual is fit for duty. Further, the burden for achieving this goal should be placed with licensee managem:mt. The rule,in its current

- form, should be rejected. (Letter Number: 289)

Resoonse: _ The NRC believes that the rule provides a variety of valid, objective means to generally assure an employee's fitness for duty, including pre-employment screening, for cause testing based on supervisory evaluation and employee performance, random testing, and the development of plans for treatment , follow-up, and future employment following a confirmed positive test result. The rule requires that impaired workers, or those whose fitness may be in question be removed from unescorted access status. The NRC expects that appropriate tests and examinations will be conducted to determine fitness, before the worker is retumed to duty. .

3.2.11-Comment: One commenter stated that the objectives in Section 26.10 do not belong in the rule because the rule as proposed does not protect the public health and safety. (Letter Number: 323)

Resnonse: The NRC believes that the rule provides for a reduction in the risk from the effects of alcohol and drugs and other impairments to the safe operation of nuclear power plants.

3.2.12 Comment: ' Several commenters stated that any measures in addition to those already established in the rule to detect and deter the on-site use or sale of alcohol or drugs should be left to the discretion of the licensee. Reasonable cause should be established prior to implementation of any additional measures. Effective measures already exist relative to the possession, sale and use of drugs on-site. Two of the commenters felt that to require these actions without reasonable cause would create morale problems. (Letter Numbers: 271; 278;323;330; 354;371;330)

Response: The NRC has decided to leave the application of other proactive measures (e.g., workplace searches) to the discretion of the licensee.

l3.3 Imonirment vs. Trustworthiness

' A number of commenters raised issues regarding the effects of illegal drug use and the misuse oflicit drugs on worker reliability and worker trustworthiness, and whether these concerns should be addressed by the rule.

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3.3.1 Comment

Several commenters stated that the rule should not focus solely on on-the-job performance impairment. These commenters stated that the reliability and trustworthiness of nuclear power plant workers is an equally importam aspect of nuclear power plant safety. Illegal drug use poses a significant safety risk. Illegal drug use also demonstrates a disregard for the law and a lack of reliability and trustworthiness required to work safely in a nuclear power plant. Workers who knowingly use illegal drugs are therefore less reliable and trustworthy, and any worker who uses illegal drugs should be considered as not fit for duty. Some of the commenters pointed out that the importance of reliability and trustworthiness is recognized in the access authorization program. (Letter Numbers: 252;272; 275;278;281;298;317;326;376. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agrees that by knowingly using illegal drugs, a worker demonstrates a lack of trustworthiness and a lack of reliability, and that these deficiencies represent significant fitness-for-duty concerns.

3.3.2 Comment

A number of commenters stated that random chemical testing is an unwarranted intrusion into workers' penonal lives since, except in the case of alcohol, it does not measure on-the-job impairment. Similarly, drug testing cannot determine whether  ;

the worker who tests positive is dependent on that drug or uses the drug in such a way that l it endangers workplace safety. These commenters stated that on-the-job impairment which poses a direct safety risk is the only legitimate fitness-for-duty concem, not the off-site use ofillegal drugs grg. (letter Numbers: 3;19;251;263;269;273;285; 295;300;308; 310;315;323;325;332;336;342. Meeting Comments: M-1.13; M-1.16;'M-1.29; M-1.31; M-1.32; M-1.36; M-1.37; M-1.71.)

1 Resnonse: The NRC understands that, except in the case of alcohol, chemical test results only establish recent drug use and they do not reveal any direct information ]

regarding drug impairment. However, the NRC disagrees with the argument made by the commenters that, as a result, chemical tests do not provide information that is relevant to a fitness-for-duty program. The NRC is fundamentally concerned with the reliability and I trustworthiness of workers within nuclear power plants, and believes that workers who I demonstrate a lack of reliability and a lack of trustworthiness are not fit for duty. By engaging in illegal drug use, a worker demonstrates that he or she does not obey society's laws, which casts doubt onto whether or not he or she can be expected to obey the licensee's rules and the NRC's regulations that are in place to protect public health and ,

safety. Further, most of the substances under consideration in the rule are either physically l or psychologically impairing or cause addiction in many individuals. Should workers use the substances while off-duty, the NRC cannot be confident of his or her ability to limit I their use of the addictive substances to times and places that do not adversely affect plant safety. Further, even if a worker does not use drugs while on duty, he or she may be j impaired from either hangover or withdrawal effects associated with the drug use. The NRC believes that the public has a right to expect nuclear power plant workers to not use  ;

these substances.

3.3.3 Comment

Several commenters stated that worker reliability and trustworthiness should be considered a fundamental fitness-for-duty criterion, as it is in access authorization considerations. Therefore, the phrase " reliable, trustworthy, and" 3-7

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l should be added to the first sentence of Section 26.10(a) so that it reads as follows j " Provide reasonable assurance that nuclear power plant personnel are reliable, trustworthy, {

L and not under the influence of any substance, legal or illegal, or mentally or physically l impaired from any cause, which in any way adversely affects their ability to safely and i

l competently perform their duties." (Letter Numbers: 275;278;317;326;331;343;359.

See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agmes with these commenters and word changes have been made to Section 26.10(a).

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3.3.4 Comment

One commenter said that the intent of the rule seems to be to detect any drug use, not just on-the-job impairment, which is contrary to the objective stated in Section 26.10(a). (LetterNumber: 323)

Resnonse: The NRC is concerned not only with impairment, but with worker reliability and trustworthiness, and the NRC believes that any illegal drug use by a worker reflects upon his or her trustworthiness and reliability. Section 26.10(a) has been modified to reflect this concern.

3.3.5 Comment

One commenter steed that workers who use illegal drugs are likely to pose significant safety risks, and they demonstrate a lack of reliability and trustworthiness required to work in a nuclear power plant. The presence ofillegal drugs through a true positive chemical test is sufficient evidence that a worker is therefore not fit for duty. Further discussion ofimpairment due to illegal drug use is unnecessary. All references and definitions of " impairment" should be confined to legal drugs such as alcohol or psychological problems. (12tter Number: 281)

Resnonse: The NRC concurs with the conclusions of this commenter.

3.3.6 Comment

Two commenters indicated that the cutofflevels required in the HHS Guidelines are significantly lower than what is required to identify impairment. These commenters believe that the NRC's focus should be on impairment and that detection of drug use, per se,is not the NRC's proper concem. (Letter Numbers: 263;323)

Resnonse: The NRC believes that substance abuse compromises worker reliability and trustworthiness, and is therefore a legitimate concem of the rule.

Establishing cutofflimits at high enough levels to assure that impairment is present would not allow for these concerns to be addressed. Therefore, the NRC will not tie cutofflevels directly to impairment. See: FRN, Supplementary Information, Section 3.2.

3.3.7 Comment

One commenter stated that the proposed rule should not limit the criteria used to assess a worker's fitness-for-duty to illegal substance abuse. For example, another criterion should be the determination of whether the worker has a criminal record.

(Letter Number: 272) 3-8

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Resnonse: The NRC concurs that past criminal behavior also speaks to the issue of worker reliability and trustworthiness. This aspect is addressed by current licensee M . access authorization programs.

3.3.8 Comment

Two commenters stated that impairment is the principal issue in the proposed rule. Worker reliability and trustworthiness should be addressed m the access authorization program instead of in this rule. One commenter specifically did not concur with NUMARC's proposed wording change for Sections 26.10(a) and 26.3, which consisted of adding references to mliability and trustworthiness, and deleting references to impairment. (LetterNumbers: 252;349)

Resnonse: The NRC believes that, while being relevant to access authorization programs as well, worker trustworthiness and reliability concerns are fundamental issues in licensees' fitness-for-duty programs and concerns that must be addressed in the fitness-for- 'l duty rule.

3.3.9 Comment: Two commenters stated that, while the detection of on-the-job impairment is necessary, a program that attempts to dictate the behavior of employees on their own time is unacceptable. (Letter Numbers. 263;322)

Response: The NRC concurs with the commenters that detection of on-the-job impairment is necessary, but is also concemed that workers who have assumed msponsibility for public health and safety by seeking and maintaining unescorted access to nuclear power plant protected areas are worthy of the public's trust. Off-duty use ofillegal substances and the misuse of legal substances can result in on-the-job impairment including hangover effects from excessive off-duty drinking. In addition, the judgment of individuals who choose to use illegal substances or knowingly misuse legal substances off-the-job when they have taken on the responsibility for public health and safety in their work can be questioned. The NRC is concerned that only individuals who are capable of maintaining the highest degrees of personal integrity and professionalism be granted unescorted access and has concluded that the use ofillegal substances or the misuse oflegal substances are behaviors that workers with unescorted access must avoid to assure the public that these individuals am reliable. Thus, the NRC does not intend to dictate workers' behavior on their own time. Rather, the NRC intends to assure that only those persons who willingly accept the unique responsibilities that accompany the granting of unescorted access, including some restrictions on their personal behaviors, are allowed to take on those responsibilities.

3.3.10 Comment: Two commenters stated that the NRC should address only the detection and rehabilitation of workers who test positive for substance abuse and should not provide guidelines for " potential impairment" from substance abuse. (Letter Numbers:  ;

230;308)

Resoonse: The NRC has concluded that licensee fitness-for-duty programs must address the potential for on the-job impairment and the implications for the individual's trustworthiness and reliability.

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3.3.11 Comment: One commenter stated that impairment should not be addressed in the rule. The only concem should be illegal drug use. (Ixtter Number: 303)

Resnonse: The NRC believes that impaired workers create unnecessary and unacceptable risks to public health and safety, regardless of the cause of the impairment. -

The NRC also believes that there are a number of potential causes of impairment in addition to illegal drug use. Thus, it is essential that licensees' fitness-for-duty programs and the NRC rule address impairment from causes in addition to illegal drug use.

3.3.12 Comment: One commenter stated that the proposed rule does not include testing for impairment, but instead requires expensive and intrusive chemical testing which cannot test for impairment. The commenter stated that the rule should be directed toward identifying all sources ofimpairment. (Letter Number: 310)

Resnonse: The NRC evaluated techniques for testing for impairment (NUREG/CR-5227, Supplement 1, Chapter 4) and concluded that no testing techniques currently exist that mpresent an adequate substitute for chemical testing for drugs. Though chemical testing cannot establish impairment,it can establish recent drug use, The NRC believes that th9drug use that can be detected through chemical testing indicates a lack of trustworthiness and a lack of reliability on the part of the identified worker, and that these deficiencies represent significant fitness-for-duty concerns. The NRC believes that the importance of detecting drug users justifies the expense and intrusiveness of drug testing.

Furthermore, the rule does include requirements that licensees' fitness-for-duty programs address sources of impairment in add: tion to workers' uses of impairing drugs.

3.3.13 Comment: Several commenters stated that impairment is a highly complex phenomenon, subject to various interpretations, difficult to evaluate by supervisory observation, and varying significantly between drug types. Since there is no standard scientific or medical definition ofimpairment, all definitions and references to " impairment" should be eliminated in the rule. (Letter Numbers: 269; 271;272; 275;278;281;299; 317; 326;329;330; 331;340;343; 371;376. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agrees that impairment is a complex phenomenon, and that the term " impairment" does not lend itself to precise or standard definition. However, I the NRC also believes that workers' abilities to perform theirjobs safely may be negatively affected by factors such as drug intoxication, illness, stress, and fatigue, and that the term

" impairment"is a suitable word to use when describing these phenomena. Though difficult i to precisely define, impairment does exist, and along with worker trustworthiness and  !

rehability, represents an important concem that must be addressed in the fitness-for-duty rule. i 1

3.3.14 l Comment: One commenter stated that all references to " impairment" should be deleted. In addition, Section 26.10(a) should read as follows: "(a) Provide reasonable I assurance that nuclear power plant personnel are not under the influence of any substance,  !

legal or illegal, or exhibit aberrant behavior which adversely affects Acir ability to safely and competently perform their duties." (Letter Number: 340) 3-10

Response: The NRC believes that the terms " mental and physical impairment" l communicate its intent more accurately than references to " aberrant behavior" in this section, and has retained the terms.

3.3.15 Comment: Seveml commenters stated that the use of the term "impatr" in the definition of" drug abuse" was inappropriate in a zero-tolerance drug abuse program.

(Letter Numbers: 275; 278;326;349;376. See also subsections 3.5.23 and 3.5.24.)

Besconse: The NRC recognizes that the term " drug abuse" does not adequately communicate the scope ofits fitness-for-duty concerns and so has deleted the definition in Section 26.3 of the proposed rule.

3.3.16 Comment: One commenter stated that the mention ofimpairment in the definition of " drug abuse" was unnecessary because the determination for impairment is made using objective criteria from the chemical test results. " Impair" should be deleted from the definition. (Letter Number: 375)

Resoonse: . Although the definition of " drug abuse" mentioned by the commenter has been deleted from the final rule, the NRC wishes to note that urinalysis tests for chemicals do not measure impairment. These tests only indicate that particular substances have been used by an individual, and therefore do not provide objective criteria for determining impairment.

i 3.3.17 Comment: Several commenters stated that, because the point of impairment cannot he defined or measured, the term " impair" in the definition for " drug abuse" should be deleu d or modified by inserting "potentially" in front of" impair." Two commenters added that " medical purposes" is also open to wide interpretation, and should be xplaced by " medical doctor." (Letter Numbers: 264;269;281;299:371;376)

Response: The NRC mcognizes that the term " drug abuse" and the definition provided in Section 26.3 of the proposed rule do not adequately communicate its intent and so have been deleted from the final rule. In addition, references to drug abuse have been mplaced with " substance misuse" or " abuse," as appropriate, throughout the remainder of the rule. The NRC believes that the phenomena of concern are commonly understood and that no definitions of these terms are required.

3.3.18 i Comment: One commenter felt that drug testing would be fair only under the following guidelines: The employer has reasonable grounds to believe that a worker's faculties are impaired on the job and that the worker is in a position where such impairment represents a clear and present danger to the physical safety of the worker, another worker,

, or the public; The worker is first screened by a computer-assisted neurophysiological l technique; The results of the neurophysiological test are positive. The " private corporation" must then pay for a urinalysis test that will be conducted at a facility or by a doctor chosen by the individual. (Ixtter Number: 315) 3-11

l Resnonse: The NRC feels it must be concemed not only with impairment but also with the trustworthiness of personnel having unescorted access to protected areas and

. that the measures suggested by the commenter are insufficient guarantees of both these ends. See: FRN, Supplementary Information, Section 3.2; NUREG/CR-5227, Chapter 4.

3.3.19 Comment: One commenter stated that chemical testing is a means to deter and detect the use of illegal drugs, not drug abuse. and that the rule should be modified to reflect this position. (Letter Number: 329)

Response: The NRC believes that any use ofillegal drugs by individuals who enjoy unescorted access to protected areas of nuclear power plants adversely reflects upon the reliability and trustworthiness of those individuals and their ability to perform assigned work. " Abuse" ofillegal drugs, therefore,is not a separate type of behavior from use.

However, the NRC is also concerned with fitness problems from a range of substances and conditions. The NRC believes that the rule as currently written appropriately reflects this broader concern.

3.3.20 Comment: A few commenters stated that the proposed fitness-for-du:y rule is not aimed at assuring nuclear power plant safety, but instead is simply designed to detect illegal drug abuse. (Letter Numbers: 42;302;342)

Resnonse: The NRC believes that the rule is aimed at further assuring nuclear power plant safety, and that it does address the issues inherent to fitness-for-duty programs meluding detection ofillegal drug use.

3.4 Uniform Proeram Standards versus Flexibility A number ofissues were raised by commenters contrasting the need to establish uniform program standards to assure that the general performance objectives are satisfied with the need to allow licensee flexibility to implement the program elements and procedures.

3.4.1 Comment

A number of commenters stated that licensees operate in dissimilar environments as a result of such factors as State laws, collective bargaming agreements, and management styles. Therefore, the NRC should recognize these diversities and provide the licensees with the mechanism to meet the requirements of the rule in a manner that is best suited to individual circumstances. This would include the ability to impose  ;

more stringent requirements in the areas of cutoff levels and sanctions than those specified in the rule. (Letter Numbers: 269;274;275;307;317;326;331;349. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agrees with these commenters that licensees have unique I legal, labor, and management considerations. The NRC believes that the final rule recognizes these diversities and provides the licensees with suitable mechanisms and flexibility to satisfy the requirements of the rule while accommodating licensee responsibilities. The final rule applies as a minimum standard. The licensee may use lower cutoff levcis and test for additional drugs. Within the limits imposed by the rule to protect worker rights, the licensee is free to apply stricter sanctions so long as the other provisions of the rule are satisfied.

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3.4.2 '

Comment: A fevr commenters stated that the Commission should delegate authority to NRC staff to myiew, evaluate, and grant requests for exemptions from rule requirements. This would allow discretionary action to be taken on unforeseen circumstances without violation of the rule's intent. (Letter Numbers: 275; 317; 326. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC may grant exemptions to provisions of the rule which it determines are necessary and authorized by law. Therefore, no changes to the existing process are believed needed at this time. See: 10 CFR, Section 26.6.

3.4.3 Comment

One commenter stated that the purpose of the rule is to establish uniform standards, but that this purpose will not be achieved if Section 26.24(b) which allows licensees to establish more stringent programs, and Section 26.24(c) which allows licensees to add drugs local authorities feel should be included in the program, are not changed. (LetterNumber: 58)

Resnonse: The NRC's intent in establishing uniform standards for the industry is to ensure that public health and safety objectives are maintained. While the rule establishes uniformity at a minimum level, the provisions in Sections 26.24(b) and 26.24(c) are included in the rule to allow a certain level of program flexibility to licensees for using more stringent standards.

3.4.4 Comment

Two commenters stated that a uniform program would aid contractors who must set fitness-for-duty guidelines to meet those of different utilities.

Further, a uniform program would insure that a contractor who met the requirements of one licensee would meet the requirements of all other licensees without additional efforts.

(Letter Numbers: 230;299)

Resnonse: The NRC recognizes that uniform program standards will aid contractors who must satisfy fitness-for-duty requirements. However, the NRC does not prohibit licensees from establishing more stringent standards depending on specific requirements and circumstances.

3.4.5 Comment

Two commenters stated that the rule does not provide adequate detail to ensure uniform implementation. (Letter Numbers: 2; 60)

Response: The NRC believes that the final rule provides the level of detail and guidance necessary to ensure the desired level of uniform program implementation. This is reflected in detailed guidance for drug testing schedules, techniques, and quality assurance procedures pmvided in the rule.

3.4.6 Cmn d: One commenter stated that the intent of the proposed rule is undermined by its lack of specificity and the level of discretion it delegates to licensees.

(Letter Number: 377) 3-13

Resoonss: The NRC believes that the final rule provides a suitable level of specificity while mainta'ning the degme oflicensee flexibility necessary for proper implementation.

3.4.7 Comment

One commenter requested clarification on the NRC's intention to allow licensees to take "more stringent action." (Letter Number: 331) i Resoonse: The rule applies as a minimum standard, i.e., if licensees maintain 3 the standards set forth in the rule, they am not prohibited from taking more stringent action:

at their own disention such as pursumg mom severe sanctions. The addition of drugs and

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the lowering of cutoff levels are also possible. l 3.4.8 j Comment: One commenter stated that the impact of court rulings, union J agreements, and utility operations and the implementation of the rule in terms of employee  !

privacy rights, will create substantial disparity among fitness-for-duty programs. (Letter l' Number: 24)

Resoonse: In that the rule specifies minimum standards and encourages licensees to adopt mom stringent programs, the NRC expects that there will be some program disparity. The NRC recogmzes the potential impact of court rulings, collective bargaining agreements, and differences in licensee implementation, and will respond as necessary to ensure that the minimum fitness-for-duty requirements are satisfied industry-wide, as noted in the FRN, Section 18.2.3, where the rule preempts State laws that make compliance difficult or impossible, and Section 18.2.6, where collective bargaining may address program issues not addressed by the rule.

3.4.9 Comment

One commenter said that the written policy and procedures discussed in Section 26.20 should be considered a subject of negotiations, where applicable, and should be so stated. (Letter Number: 267)

Response: The written policies and procedures discussed in Section 26.20 describe the principal statements and strategies by which the performance objectives are to be implemented, and thus constitute a principal aspect of a licensee's fitness-for-duty program. Where the method of establishing these is not specified, however, each licensee is required, as a minimum, to establish and implement written policies and procedures designed to meet the general performance objectives of the rule according to the mquirements described in this section.

3.4.10 Comment: One commenter believes that the NRC should allow licensees to perform drug testing -- including random testing -- in the manner the licensee deems appropriate. (LetterNumber: 307)

Resnonse: The NRC has a legitimate interest in requiring minimum standards for licensee drug testing programs. The NRC has established mechanisms for licensees to implement more stringent standards than those outlined in the rule.

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a 3.4.11 1 Qimment- One commenter believed that the rule should not force licensees to relax the standards of effective fitness-for-duty programs that are already in place and functioning successfully. (Letter Number: 19)

Resoonse: The rule allows licensees to institute or retain more stringent i requirements for the fitness-for-duty programs including management sanctions, lower cutofflevels, and the addition of substances to be tested.

3.4.12 Comment: Several commenters suggested that program modifications should be allowed based on program success as well as weaknesses. (Letter Numbers: 252;269; 330) i Resnonse: Program modifications are allowed ss long as they do not conflict I with provisions of the rule or lead to inadequate program performance. The NRC does not believe that Section 26.71(d) needs to be reworded to address this point.

3.5 Other Issues Commenters raised a number of other issues related to the general performance objectives and the need for the rule. These comments included statements of general and conditional suppoit for the NUM ARC comments on the rule. A number of wording and definitional changes also were proposed by the commenters.

3.5.1 Comment

Several commenters stated that the length of the comment period was inadequate given the controversial nature of the rule and its impact on industry workers. The comment period did not allow for a thorough study of the issues. Additional public meetings should have been held to permit greater public participation and in locations outside the area of NRC headquarters. (Letter Numbers: 35;251; 349)

Resnonse: The NRC believes that the comment response period was adequate and allowed for a thorough study of the issues, and that the public meeting adequately solicited public panicipation.

3.5.2 Comment

One commenter believes that " reverse psychology" will prevail with the implementation of the rule, and that, consequently, substance abuse will become a far greater problem than it currently is. (I.xtter Number: 350)

Resnonse: The NRC does not believe that " reverse psychology" will prevail following the implementation of the rule. The provisions of the rule are similar to those

, approaches that various licensees have found to be useful in reducing the level of substance l abuse in their plants.

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3.5.3 d Gmment One commenter stated that a policy that allows a worker to be discharget. following a positive drug test contradicts the premise of" defense of depth."

(Letter Number: 350)

Resoonse: The defense-in-depth strategy is predicated on the availability of reliable and trustworthy workers who are not impaired from substance abuse or any cause.

The NRC fitness-for-duty rule is not devised to remove a particular individual from duty, but to assure that workers in general are fit for duty. The NRC has not established a policy that requires a worker to be discharged following a positive drug test. At a minimum, a first confirmed positive test shall result in immediate removal from activities within the scope of the rule and referral to the employee assistance program (EAP) for assessment.

1 3.5.4 ]

Comment: Commenters from Rancho Seco asked that the NRC evaluate '

whether the goals of their Medical Clarification Examination program contribute to the goals established by the NRC in Section 26.10. (Letter Number: 329)

Resoonse: The NRC recognizes the positive contributions which the Medical Clarification Examination (MCE) program can achieve towards satisfying the fitness-for-duty performance objectives in Section 26.10 of the rule. The MCE program consists of a

- battery of physiological, physical, and psychological examinations to determine whether the employee has a substance abuse problem. Such a program is very useful to verify for-cause referrals, with chemical testing as a confirmatory measure. A chemical testing and

~ performance assessment protocol could potentially determine for-cause, on-the-job unpairment in a valid and objective manner. Such a program would also be useful as an adjunct to chemical testing for pre-employment screening or access authorization to determine employee suitability. As such, it would contribute to the fitness-for-duty performance objective to assure that the workplace is free from the adverse effects of substance abuse and other fitness-for-duty concerns. However, the NRC believes that this program alone would not provide an adequate deterrent to drug use and has concluded that random testing is also required.

3.5.5 Comment

One commenter stated that the application throughout the rule of the terms defined is consistent with standard usage. Therefore, a definitions section is unnecessary and should be deleted. (Ixtter Number: 300)

Resnonse: Although the use of certain terminology in the rule is consistent with standard or common usage, the NRC believes that some of the terminology has a unique technical or regulatory basis, and, as a result, appropriate definitions should be provided which clearly state the meaning and intent of the term.

3.5.6 i

Comment: One commenter stated that the term " impaired" in Section 26.10(a) should be replaced with the term "affected." (Letter Number: 330)

Resnonse: The NRC believes that the term " impaired" in Section 26.10 is appropriate.

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3.5.7 Comment

One commenter stated that it does not appear that there am any objective criteria to determine impairment. The commenter thought that each licensee has devebped its own set of criteria that are not necessarily objective or uniform. (Letter Numbe: 223)

Rectmsg: The NRC concurs that impairment from substance abuse, physical d psychological problems can be difficult to measure precisely. The NRC expects that licensees will adopt a conservative approach relative to public health and safety and remove workers from safety sensitive tasks if there is any question of their fitness for duty. At this time, the NRC is not aware of any objective methods available for establishing clear measures of impairment, but will continue to monitor developments in the area.

3.5.8 Comment

One commenter stated that a new rule should be drafted with involvement from non-industry participants. (Letter Number: 308)

Resoonse: The rule was drafted with substantial involvement from non-industry participants including the Department of Health and Human Services, the National Institute on Drug Abuse, the Department of Defense, the Department of Transportation, other industries involved with large drug testing programs, experts in the field of drug abuse including toxicologists and substance abuse policy analysts, unions, and various private interest groups. The NRC has seriously considered comments on the draft rule by nearly 400 individual parties. Thus, it is the NRC's opinion that diverse groups have had the opportunity to affect the nature of the rule.

3.5.9 Comment

Several commenters suggested that Section 26.10(c) be revised to specify that the workplace should also be free of those who traffic in illegal drugs. (Letter Numbers: 264;300; 375)

Restonse: The NRC believes that the wording in Section 26.10(c) adequately addresses the commenters' point.

3.5.10 Comment: One commenter recommended that Section 26.10(a) be amended to read " . . . penonnel are not impaired in any way . . . " (Letter Number: 300)

Response: The NRC believes that the wortling in Section 26.10(a) is adequate.

3.5.11 Comment: One commenter requested that the term "early" in Section 26.10(b) be deleted, and that the phrase "are not fit" be replaced with "may be unfit." (letter Number: 330)

Response: The NRC believes that the term "early" and the phrase "are not fit" in Section 26.10(b) are adequate.  !

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3.5.12 Comment: Several commenters stated that the term "workplace" should be l replaced with the term "workfome," to emphasize that employees are to be drug free.

(Letter Numbers: 269;339;358)

Response: The NRC believes that the word "workplace" in Section 26.10 is adequate.

3.5.13 Comment: One commenter requested that the words following "this chapter" be i deleted from the definition for protected area. (Letter Number: 330) I l

Resoonse: The NRC believes that the definition of " protected area" in Section 26.3 is adequate.

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3.5.14  !

C91Dment: One commenter stated that the term " psychoactive" in the definition ,

of" drug abuse" should be deleted or substituted because it is not a commonly recognized word. " Mood altering" is a suggested substitution. (Letter Number: 271)

Resnonse: _ The definition of" drug abuse" has been deleted from the rule. The NRC believes it is not a necessary component of the rule.

3.5.15 Comment: One commenter stated that the term " drug" should be replaced with

" substance" in the definition for " drug abuse," and throughout the rule. The commenter believes that the term " substance abuse" indicates a broader category of psychoactive sestances than does the term " drug abuse." (Letter Number: 349)

Response: The NRC has deleted the definition of " drug abuse" from the final rule. However, in certain sections, the NRC believes that the terms " drug" and

" substance" are acceptable, depending on the context in which they are used, for example,

" drug testing" and " substance abuse."

3.5.16 Comment: One commenter stated that the term " drug abuse" in the first sentence of Section 26.24(a) should be deleted and "the use ofillegal drugs" added in its place.

(LetterNumber: 300)

Response: The term " drug abuse" has been changed to " substance abuse" to i more accurately reflect the intent of the rule. The NRC is also concerned with impairment l from the use of legal substances (e.g. alcohol, prescription drugs) and the implications for worker tmstworthiness and reliability of the use of illegal drugs.

3.5.17 Comment: One commenter requested that the definition for " aliquot" have the term " urine" inserted before " specimen," to clarify what type of specimen is being tested.

(Letter Number: 330) 3-18

r Resnonse: This clarification has been made.

3.5.18 Comment: Several commenters stated that the term " Committee" in Section 26.6 should be substituted with " Commission." (Letter Numbers: 275; 278;317;326; 330; 343;349. See also subsections 3.5.23 and 3.5.24.)

Resoonse: This was a typographical error in the original, and the correct word has been incorporated in the final rule.

3.5.19 Comment: One commenter reported that his utility has a confidential " hot-line" (phone number) to facilitate the discreet expression of fitness-for-duty concems. (Letter Number: 298)

Response: The NRC notes that many licensees have similar provisions. The I NRC supports the initiative oflicensees to augment the minimum mandatory fitness-for-duty program requirements.

3.5.20 Comment: One commenter stated that the phrase following " drug-free .

workplace" in Section 26.10(c) should be deleted because it is redundant. (Letter Number:

330)

Resnonse: To emphasize the fact that substances consumed off site can have deleterious effects on plant safety, the NRC has retained the original wording.

3.5.21 I l

Comment: One commenter suggested that the word "early" be deleted from l Section 26.10(b) because behavioral observation requires time to detect impairment.

(Letter Number: 300)

Resoonse: The NRC has determined that the curmnt wording of Section 26.10(b) is adequate and will remain unchanged in the final rule.

3.5.22 Comment: One commenter suggested that Section 26.10(a) be narrowed to discuss only substance abuse until guidance regarding mental and physicni impairment is provided by the Commission. (Letter Number: 355)

Resnonse: The NRC believes the general performance objectives need not be l narrowed at this time. Even though less quantitative approaches may need to be used to assess mental and other physical impairment, the NRC believes that power reactor licensees in general can develop effective programs to deal with these issues. Thus, licensees are required to have policies and programs to deal with mental and physical impairment as well as substance abuse by this part's implementation date.

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3.5.23 Comment: A number of commenters agreed in part with NUMARC's submitted comments on the proposed rule, with exceptions or qualifications. (Letter Numbers: 224; 272;274;278;279;298,306;311;313;316;324;326;339;340;343;349;355;356;358; 359;368;375)

Response: These exceptions and qualifications have been noted and are addressed in the appropriate, specific comments and responses.

3.5.24 Comment: A number of commenters expressed general support for the entire text of NUMARC's submitted comments on the proposed rule. (Letter Numbers: 262; 270;280;284; 297;303;304;305;311;318;320;327;330;331;335;347; 348;353;357; 372;374;378)

Response: A reference to this fact has been added to each comment that includes a NUMARC statement or question.

3.5.25 Comment: A few commenters noted that the phrase "on or off site" should be added after the word " abuse" in Section 26.24(a) to clarify that the requirements of the program are independent of the location of drug abuse. (Letter numbers: 275:343;376.

See also subsections 3.5.23 and 3.5.24.)

Response: This wording change was not adopted since the reference does not currently limit the abuse in question to on-site abuse.

3.5.26 Comment: One commenter specifically agreed with the wording in Section 26.24(a) and did not believe that it was necessary to specify that the rule referred to on- and off-site drug abuse. (Letter Number: 349)

Response: The NRC concurs with this commenter.

3.5.27 Comment: One commenter suggested that " drug abuse" in Section 26.24(a) be changed to " illegal or unauthorized drug use." The rationale given was that urinalysis was conducted to detect illegal drugs. (Ixtter Number: 317)

Response: The term " drug abuse" has been changed to " substance abuse" to more accurately reflect the intent of the rule. Urine testing is used to detect unacceptable levels of controlled substances, some of which are used in prescription drugs in very small amounts, particularly amphetamines and opiates. See: NUREG/CR-5227, Supplement 1, Chapter 3.

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4.0 SCOPE OF RULE Several commenters questioned aspects of the scope of the rule such as, to whom the rule applies and the rationale fcr applying the rule to particular types of workers. Comments regarding the scope of the rule discussed non ra;.e reactors and other non-commercial nuclear power reactor licensees, construction" workers, the types of nuclear power plant workers affected by the rule, contractors t nd vendors, technical support center (TSC) and emergency oxrating facility (EOF) staf', and NRC staff and their representatives. Other issues relatec to the scope of the rule ",ere also raised.

4.1 Non Power Renctors ant' Other Licensees A number of commenters questioned whether the rule should be applied to non-power reactors and other non-rcactor licensees.

4.1.1 Comment

Repmsentatives of several academic research reactors at various American universities and of a Federal test mactor strongly urged that this rule not apply to their reactors and cited several reasons why such coverage would be unwise. They stated that there is no history at their installations of the problem that the rule is meant to remedy.

Access to most of these reactors is already controlled by stringent physical security measures. Surveillance is inherent considering the small size of their staffs. They argued that maintaining a separate fitness-for duty program would restrict the access of students and staff to these reactors. The added cost ofimplementing this fitness-for-duty program would result in severe reductions in the use of academic reactors which,in turn, would reduce msearch at these reactors and their contribution to science and engineering education. Finally, they argued that the potential hazards to the general public are substantially less than that at power reactors due to the smaller size of research reactors' operating plants. (LetterNumbers: 12;22;232;259;268;283;292;321. Mecting Comments: M-1.8; M-1.40.)

Response: The NRC has decided not to include non-power research and testing reactors in the scope of the rule at this time. In the future, the Commission may consider the need to extend the coverage of the rule to other types of facilities beyond its present scope, i 4.1.2

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Comment: Several commenters recommended that this rule apply to licensees who operate nuclear power reactors only. Some of these commenters specifically recommended against extending the coverage of the rule to low enriched uranium fuel l fabrication facilities. However, one commenter recommended that the rule apply to all l

regulated activities. This commenter pointed out that nuclear materials present in those areas are no less dangerous than those present at commercial reactors. (Letter Numbers:

58;251; 269; 271;275;278;281;298;309;326;330;343;349. Meeting Comment: M-1.176. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC has decided not to expand the scope of this rule beyond the operating nuclear power reactor and those under construction. The NRC may consider extending the coverage of the rule at a future time.

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Comment: Several commenters stated that the rule should specifically name which part of the nuclear industry is being regulated by inserting the word " power" before

" industry" in Section 26.1. -(Letter Numbers: 275: 278; 298; 300; 317; 349. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agrees with this commenter that the word " power" should be inserted befom " industry" in Section 26.1 to specifically name which component of the nuclear industry is affected.~ This word change has been incorporated in the final mle.

4.2 Construction

, Several commenters questioned whether the rule should be applied to nuclear power plant construction site workers.

4.2.1 Comment

Some commenters recommended that activities covered by the rule should include the construction and pre-operational testing of nuclear power plants. One commenter recommended against doing so. (Letter Numbers: 4;19;303;328;376)

Resoonse: The NRC agrees that coverage of the rule should include licensees holding construction permits. Wording indicating the provisions of the rule that pertain to construction sites has been added in Sections 26.2(b) and (c). The NRC believes that quality construction has a direct effect on subsequent operational safety, and that holders of construction permits must therefom assure compliance with Sections 26.10,26.20,26.23, 26.70,26.73, and other specified program elements.

4.2.2 Comment

One licensee commenter stated that it has two existing nuclear power plants but is licensed to operate only one. The commenter asked whether the requirements of the rule would apply to those personnel who have unescorted access to the protected area of the non-operating, non-licensed plant. (Meeting Comment: M-1.45)

Resnonse: The scope of the proposed rule covers plants licensed for operation, and certain provisions apply to plants under construction. The rule thus applies to licensed but non-operating nuclear power reactors. Plants under decommissioning will be treated on a case-by-case basis and orders issued as necessary.

4.3 Tvnes of Workers Covered A number ofissues were raised by commenters regarding the types of workers covered at operating nuclear power . lants and the rationale for applying the rule to all workers with unescorted access to protected areas.

4.3.1 Comment

Several commenters stated that the scope of the rule is proper in applying to "all persons granted unescorted access to protected ::reas" and that no other categories are needed. One commenter recommended that the rule should require testing of all licensee, contractor, and vendor employees who are assigned to an operatmg nuclear 4-2

l facility or construction site. (Letter Numbers: 6;272;275;278;298;303;326;339;349; 356; 375. See also subsections 3.5.23 and 3.5.24.)

Resmnse: Based on the substantial support for the proposed application of the rule to all people with unescorted access to protected areas, the NRC has not changed this scope of workers covered by the rule. As stated at 53 FR 36817, the rule applies to this category of workers because: (1) current fitness-for-duty programs apply to all persons within protected areas; (2) such persons could introduce and sell drugs in the workplace; and (3) such persons under the influence of any substance could cause a safety har.ard.

4.3.2 Comment

A few commenters stated that a worker covered under one licensee's fitness-for-duty program should not come under testing requirements from a different licensee should he/she work at several sites as part of normal duties. (Letter Numbers:

306;311;324)

Resmnse: The NRC believes that additional chemical screening tests for transient contractors do not impose an undue burden when compared to requirements such as site-specific training. The rule does not preclude arrangements by groups of licensees to rely on each other's programs, provided there is assurance that the transient worker continues to be subject to a program meeting the requirements of this part and appropriate joint audits are conducted.

4.3.3 Comment

Many commenters submitted recommendations on the appropriate catego, ries of workers to be covered by this rule, particularly its chemical testing provisions. Some recommended that only those workers who may potentially impact the health and safety of the public be covered. Others agreed that all employees who have ,

authorized access to pmtected areas should be tested. Several commenters questioned {

whether it was necessary to include such people as upper management, general office and I delivery personnel, or maintenance crews in the testing program if they work within protected areas. Other commenters recommended that the rule apply only to control room personnel. Still others recommended either that all personnel on the plant site should be tested or that licensees be granted the authority to expand the category of workers to be covered at their discretion. (Letter Numbers: 19;23; 60;233;251; 252;285;315;317; 329;330;334;339;358;370. Meeting Comments: M-1.20; M-1.30; M-1.122; M 1.124.) )

Resnonse: The NRC believes that the inclusion of all workers with unescorted access to the protected area within the scope of the rule is the proper response to the threat j constituted by substance abuse and other fitness for duty concerns. All such workers have  :

the ability to carry in and distribute impairing substancas. All such workers can engage in )

deliberate or accidental actions leading to challenges to safety or interfere with the ability of other workers to safely operate and maintain the plant. Therefore, no change to the categories of workers to be covered has been made.

]

4.3.4 l Comment: One commenter found the rule to be vague as to whether NRC-  !

licensed operators are subject to the rule's requirements. (Letter Number: 373) 4-3

Resnonse: NRC-licensed operators are subject to the requirements of this part if they fit within the categories of workers specified in Section 26.2(a). Licensed operators are also subject to separate criteria under 10 CFR Part 55.

4.3.5 Comment

Two commenters suggested that this part should recognize existing fitness--for-duty programs by, for instance, inserting a grandfather clause in the rule.

Another commenter recommended that personnel with currently valid unescorted access authorization, granted prior to the effective date of the rule, should not be required to undergo drug testing as required by Section 26.24(a)(1). (Letter Numbers: 6; 252)

Resnonse: Adding a grandfather clause to this part as the commenter suggests would be inappmpriate. Alllicensees' fitness-for-duty programs must conform to the standards and requirements of this part no later than 180 days after publication of this rule.

The NRC believes that this part contains adequate flexibility and grants licensees sufficient discretion to relatively easily and effectively adapt their existing fitness-for-duty programs to meet the standards of this rule. Furthermore, a worker who holds a valid unescorted access authorization on the effective date of the rule would not have to be tested under Section 26.24(a)(1). That worker would instead be tested under the random testing program set up pursuant to Section 26.24(a)(2). Both at the time they establish the protected area during the process of obtaining an operating license and when they grant unescorted access to the workfome, licensees are expected to conduct pre-access testing unless there is already a pmgram in place that meets the requirements of the rule.

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4.3.6 Comment

One commenter recommended that the phrase "not employed by a licensee or contractor" be inserted after " law enforcement personnel" in Section 26.2(a) to clarify that the regulations in this part do apply to plant security forces who are licensee or contractor employees and who hold law enforcement commissions. (Letter Number: 375)

Resnonse: The NRC has decided not to make this amendment to Section ,

26.2(a) because that section makes clear that the provisions of fitness for duty programs apply to "all persons granted unescorted access to protected areas . . ." Thus, these provisions apply to law enforcement personnel who are employees of licensees and contractors who have been granted unescorted access.

4.4 Contractors and Vendors Issues were raised by commenters regarding the application of the rule to contractors and vendors. Questions were also raised by commenters regarding the feasibility of applying the random testing and employee assistance program (EAP) provisions of the rule to contractors and vendors.

4.4.1 i Comment: Three commenters doubted the enforceability of the Section 26.23(b) requirement that written agreements between licensees and contractors show that workers who have been denied access at another nuclear power plant will not be assigned to contracted work without the prior knowledge of the licensee. They either questioned i whether contractors can be expected to know of such denials of access or suggested that the rule should explicitly require contractors to provide the employment history of their 4-4

L

'l employees to licensees for purposes of complying with t* section. (letter Numbers: 19; 309;330)

Resnonse: To fully comply with this section, licensees must make clear to their contractors the great importance to their business relationship placed on the contractor employees' suitability for access to protected areas of nuclear power plants. In turn, as part of that business relationship, contractors will be relied upon to determine whether their employees have ever been denied access or removed from nuclear safety activities, and to fully disclose any infraction in that report. The primary purpose of this requirement i:; to prevent past practices by several contractors of reassigning an employee who has been barred from one site and withholding that information from the second site.

1 4.4.2 '!

Comment: Two commenters recommended that Section 26.23(b) be expanded l to prohibit access to all contractor personnel who have been denied access or removed from any activities at any. licensed facilities, not just from " nuclear safety" activities at a " nuclear power plant." Another commenter agreed and added that the section should be amended to l make it clear that the " contracted work" referred to is work within the protected area. i (Letter Numbers: 264;330)

Resnonse: The text of Section 26.23 has been modified as follows:

(1) removaf"from nuclear safety activities" has been changed to removal "from activities within the s. ope of this Part."; (2)"not be assigned to contracted work" has been changed to "not b migned to work within the scope of this Part."

4.4.3 Comment

The Commission received many comments and recommendations on the proper mix of licensee and contractor / vendor mnponsibilities for assuring fitness-for-duty coverage of contractor / vendor empkeees who work in protected meas of nuclear power plants. Many commenters bellem that licensees should not have any fitness-for-duty msponsibilities for contractor / vendor employecc.. Others objected to allowing contractor / vendor employees access to particular parts oflicensee fitness-for-duty programs, particularly the EAP and appeals process. Severallicensee commenters requested that licensees have the option of requiring contractors / vendors to have their own fitness-for-duty programs. Other commenter:: questioned how situations in which contractor / vendor employees work for short periods in the protected area of various licensecs' plants would be accommodated. A few commenters questioned whether workers such as vending machine operators or business machine repair personnel who come into protected areas would have to be covered by a fitness-for-duty program. (Letter Numbers: 2;230;252;264;257;269;271;272;275;278;281;298;300;302;313;317; 326;330;331:340;343;349;353 356;358;359;371 ?N;377. MeetingComments M-1.79; M-1.103; M-1.173. See also subsections 3.513 an 3.5.24.)

Response: The NRC believes that it is appropriate to hold licensees responsible to ensun: the fitness for duty of all workers to whom the licensee grants unescorted access.

This includes licensee employees and contractor / vendor employees of all types, no matter how short the duration of the work within the protected area may be. The Commission also believes that it is appropriate to leave to licensee discretion the manner in which the licensee assures that contractor and vendor personnel an subject to the requirements of the fitness-for-duty program described in this part. The rule does not prohibit licensees from accepting the fitness-for-duty programs of their contractors and vendors when those

- programs are effective and meet the requin nents of this part. Licensees may, at their j 4-5

discretion, choose to provide chemical testing and training for contractor and vendor personnel who are granted unescorted access to protected areas of a plant. This provision would likely be used when the contracting organizations have insufficient resources to support their own fitness-for-duty programs. The NRC recognizes that most business relationships between licensees and their contractors and vendors are temporary and, therefore, will not require licensees to ensure that EAP services are provided to contractor / vendor workers. Nothing in the rule, however, prohibits licensees from making ,

these services available to contractor / vendor employees. An appeals process is made '

available for any worker with a confirmed positive determination resulting from a licensee-or contractor-administered test.

4.4.4 Comment

One commenter believed that the NRC should give major contractors and vendors the option of submitting their fitness-for-duty programs for the Commission's review and approval. The commenter suggested that this would permit major contractors and vendors to have the reciprocity necessary to effectively function at all licensee facilities.

(IctterNumber: 299)

Resnonsg: The NRC believes that it is not necessary to set up a new Federal program of review and approval of contractor and vendor fitness-for-duty programs to achieve the type of meiprocity that the commenter seeks. The rule grants licensees the discretion to accept the fitness-for-duty programs of theirlarge contractors and vendors when those programs are effective and meet the requirements of this part. It is likely that all licensees will apply the same criteria in evaluating the contractor or vendor's fitness-for-duty program and some form ofjoint audits by licensees would be encouraged.

4.4.5 Comment

One commenter believed that Section 26.23 did not put sufficient responsibility on contractors and vendors for ensuring that their employees are fit for duty in nuclear power plants. (Letter Number: 20)

Resoonse: The NRC believes that Section 26.23 puts a proper emphasis on licensees being responsible for the fitness for duty for all workers who are grantea unescorted access, including contractor and vendor employees. It is the NRC licensee who bears the ultimate responsibility for complying with this rule and it is with the licensee wnem the safety requirements and goals of this part are most appropriately placed.

4.4.6 i Comment: One commenter thought that the rule will drive small contractors and 1 vendors out of business, e.g., a contractor who supplies a few employees for a few days to l calibrate instruments during an outage would not be able to recover implementation costs.

(LetterNumber: 302) l Response: This rule should not have a negative effect on smaller contractors  ;

and vendors. Licensees can provide chemical testing and training for contractor / vendor personnel when those contracting organizations have insufficient resources to support their own fitness-for-duty programs. l 4-6

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4.4.7 i

Comment: Several commenters pmposed adding a definition of antractor to i the rule as follows: " Contractor" means any company or individual with which the licensee ]

has contracted work / service to be performed inside the protected area boundary, either by I contract, purchase order, or verbal agreement. (Letter Numbers: 269;275;317;326;330; i 343; 349; 371; 376. See also subsections 3.5.23 and 3.5.24.) j Resoonse: The NRC agrees with these commenters and has added the i suggested definition of " contractor" to Section 26.3.

4.4.8 Comment

One commenter stated that the meaning of" violation of fitness for duty policy" in Section 26.23(b) is unclear relative to contractor workers and also asked l what the rationale for this requirement is and what its relation to Section 26.27 is. (Ixtter Number: 273)

Response: The meaning of " violation of fitness for duty policy" can best be summed up by reference to Section 26.27, which mentions such violations. These include a first or second confirmed positive test indicating substance abuse; the sale, use, or possession ofillegal drugs while within a protected area; refusal to provide a specimen for testing and resignation prior to removal for violation of company fitness-for-duty policy;  ;

and failure of a worker seeking unescorted access to list all previous employers and reasons  !

for previous removal or revocation of unescorted access when such is requested by a i licensee. This would also include violations of a licensee's site-specific policy, such as possession of alcohol in certain areas or off-site involvement with illegal drugs.

4.4.9 Comment

One commenter suggested that the Commission establish a standard I drug testing and evaluation procedum for service contractors as the oasis for any individual ,

to meet the " drug fre" requirements of the proposed rule. (Letter Number: 58)

Response: The NRC has established requirements for service contractor programs in the rule, but assigns to the licensee the responsibility for ensuring that any i contractor program meets the requirements of the rule and the requirements of the licensee's fitness-for-duty program.

4.5 TSC and EOF Staff Commenters questioned whether Technical Support Center and Emergency Operating .

Facility staff should be subject to the provisions of the rule. ll 4.5.1 i'

Comment: Many commenters submitted recommendations regarding the

, application of the provisions of this program to licensee or contractor personnel required to

! respond to a licensee's Technical Support Center (TSC) or Emergency Operations Facility (EOF). Several argued that TSC and EOF personnel should not be cited as a group f

separate from those granted unescorted access and that licensees should be granted specific authority to include any licensee or contractor personnel who, by work assignment or location, should be included even if not granted unescorted access. Others recommended deletion of mention of the TSC and EOF because most personnel associated with these 4-7 l t

c 3

facilities are already granted unescorted access as part of their normal duties. Others questioned whether the rule would apply to state and local representatives and civilian volunteers who report to the EOF. Several commenters recommended that " respond" in Section 26.2(a) be changed to " physically report" to be specific in addressing those people who physically report to the TSC or EOF. (Letter Numbers: 252;269;271;275:278; 279; 281;298;300;306;309;317;326;329;330;335;339;340;343;348;349;354;3*8; 371;373;376. Meeting Comments: M-1.41; M-1.46; M-1.47; M-1.48. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC believes that it is particularly important that workers who have TSC and EOF assignments related to nuclear power plant safety can be relied on to perform under the emergency conditions that would require them physically to report to the TSC or the EOF. To clarify the Commission's intent in this matter, the words "physicaPy report" have been added to Section 26.2(a) of the rule. Becaun state and local representatives who may be present in licensee emergency facilities located outside the protecttd area do not have responsibilities directly affecting reactor safety, these people are not covered by the rule. Licensee employees, contractors, or vendor representatives who are unexpectedly called to licensee emergency facilities during an accident are also not covered by the rule as this group is ill-defm' ed and likely to be used in supplementary capacities.

4.6 NRC Staff and NRC Renresentatiyg3 Commenters questioned the rationale for excluding NRC staff and their representatives from the provisions of the rule.

4.6.1 Comment

Many commenters recommended that NRC personnel be included within the scope of the rule for reasons of fairness and because NRC employees would pose the same safety risk as would licensee employees when they are within the protected areas of nuclear power plants. Some of these commenters also recommended that state and local officials who go into protected areas should also be covered by this rule's testing requirements. (LetterNumbers: 3;19;257;269;271;275;281;288;290;298;317; 323; 326;340;343;349;371. Meeting Comment: M-1.123.)

Resnonse: The NRC agrees that NRC staff and representatives should also be subject to fitness-for-duty requirements. However, the NRC cannot allow the access ofits employees to any part oflicensees' nuclear power facilities to be restricted or in any way enable a licensee to intimidate or compromise the proper performance of its regulatory responsibilities, or create a public perception thereof. The NRC expects that any NRC employee who requires unescorted eccess will be subject to the chemical testing provisions of the Commission's fitness-for-duty program. The NRC must reserve the right to obtain unescorted access for any ofits employees. State and local officials granted unescorted access are covered by the rule.

4.6.2 Canunent

Several commenters recommended that NRC contractor personnel should be included within the scope of the rule. Several others asked for clarification on whether NRC contractors are covered under the proposed rule or under the NRC's own pmgram. (Letter Numbers: 264;275:279;317; 326;335;349;355. Meeting Comment:

M-1.44. See also subsections 3.5.23 and 3.5.24.)

I 4-8

Resnonse: The NRC recognizes that its contractors must be fit for duty and may, therefore, cover certain ofits contractors under the chemical testing provisions of the NRC's fitness-for-duty plan. The Commission expects that NRC contractors who are granted unescorted access will either be subject to the NRC's program, the licensee's

_ program, or to a program that the NRC accepts as adequate. To be consistent with the Commission's intent," representatives" has been struck from Section 26.2(a), and replaced with " employees."

4.7 Other Issues A number of other issues related to the scope of the rule were raised. These comments included responses to the Conunission's questions regarding the scope of the rule and recommended changes to provisions of the proposed rule.

4.7.1 Comment

In reply to the Commission's Question No.1 in the Appendix to the proposed rule, several commenters recommended that the scope of the rule not be expanded to include other activities dimetly related to nuclear safety. They believed that the rule adequately covers the areas where plant safety is affected. Engmeering and quality ,

assurance activities are not short-term, single person actions that have great safety consequences. Escorted personnel am under close scrutiny. Also,in their opinion, company programs to inspect the work and the workplace m unescorted creas are adequate.

Two commenters disagmed and mcommended that the rule should be be expanded to include the other activities enumerated in Question No.1. (Letter Numbers: 269;271; 275;278;290:298;303;326;329;330;339;349;354;358;371:376;377. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC agrees with the opinion of most of these commenters and will therefore not expand the scope of the rule to include other activities such as engineering and quality assurance activities performed outside protected areas. The NRC believes that management and QA/QC activities covemd under the scope of the rule are adequate to assum that fitness for duty problems fmm outside the plant do not affect the safe operation of the plant. ]

4.7.2 Comment

One licensee commenter noted that it uses both an " active" and an

" inactive" unescorted access status. Remote headquarters employees and contractors are typically made " inactive" until such a person comes to the site for one day or more; then they are made " active." Both " active" and " inactive" personnel are subject to random drug testing. The conimenter asked whether any additional testing would be necessary when people en " inactive" status are activated. (Letter Number: 354)

Besponsg: m long as workers on an " inactive" status are subject to the provisions of this part, particularly the chemical testing required by Section 26.24, no additional testing would be necessary when they are activated.

4.7.3 Comment

Two state regulatory agencies believed that the rule should not include its inspectors under the requirement of chemical testing because it is inappropriate for a mgulated entity to have the right to test the regulator. The agencies stated that their 3 inspectors need unescorted access on an ongoing basis to verify compliance with state I

)

4 4-9

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license provisions and, in the case of possible accidents, would need immed! ate access to protected areas. (letter Numbers: 261;266)

Resoonse: The NRC believes that the substantial interests of assuring safe nuclear operations make it imperative that state regulatory personnel who are granted unescorted access to protected areas be free from any impairing influences that would create a threat to safety. Therefore, such state personnel must be subject to a fitness-for-duty program. State personnel may be covered by a state govemment fitness-for-duty program if the licensee in question determines that the state program meets the intent and standards of this part. Otherwise, state regulatory personnel who are granted unescorted access to a licensee's protected area must be covered by that licensee's fitness-for-duty program.

Further, the NRC would consider state employee coverage under the NRC program on a case-by-case basis where continuing access is required (as for a resident inspector).

4.7.4 Comment

Two commenters stated that in order to clarify the time of implementation of the fitness-for-duty rule, a phrase should be added to the first sentence of 26.2(a) stating "....upon implementation of the physical security plan." (Letter Numbers: 339;358)

Resoonse: The fitness-for-duty program must be fully in place before an operating license is granted. Certain provisions outlined in Sections 26.10,26.20,26.23, 26.70,26.73, and other specified program elements are also required of licensees holding construction permits.

4.7.5 Comment

One commenter recommended changing the woni"adhereing" to

" adhering"in Section 26.23(a). (IxtterNumber: 278)

Resoonse: The typographical error has been corrected.

1 i

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b i j

a i 5.0 IMPLEMENTATION SCIIEDULE-

. A number of commenters sought clarification on the schedule and time requirements for implementing the provisions of the rule.

5.1 . Imniementation Schedule Comments 5.1.I Comment: Commenters recommended that the 90-day period for implementing the rule should be extended. One commenter thought it should be extended to 120 days, another recommended that it should be 270 days. Most commenters thought the period

- should be extended to 180 days, with one commenter suggesting perhaps even 360 days.

Reasons given were: to allow sufficient time to implement the regulatory changes; to set up or revise contracts with labor, laboratories, and vendors; to make implementing the entim arogram consistent (180 days); to implement policy carefully and develop training; to revise

)udgets; to review contractor fitness-for-duty programs; to allow for changes as a result of incorporating alcoholinto the rule and to assign appropriate security, medical and other personnel to the program. (letter Numbers: 252;264;275;298;299;304;306;326;330; 331;335;339;340;343;349;358;359;371;373;376. Meeting Comments: M-1.49;M.

.1.50; M-1.51.- See also subsections 3.5.23 and 3.5.24) 1 Resoonse: The NRC places a high priority on the implementation of the fitness-for-duty programs and policies required by the present rule. Many licensees already have in place most of the key program elements. However, because of the complex provisions of the rule, the need for some licensees to establish contractual relations with laboratories, the need to develop implementation procedures, the need to augment existing training materials, and the need to coordinate the provisions of the rule with numerous contractors and negotiate with unions, the NRC is convinced that the quality of the programs will be i enhanced by extending the implementation of all provisions of the rule until 180 days j following publication of the rule. The NRC believes this is sufficient time to put all aspects )

of the program into effect.: See: FRN, Supplementary Information, Section 17.2.' 1 5,1.2 4

Comment: A few commenters recommended that the 180-day period for random testing should be extended to 360 days to allow time to implement testing in a planned comprehensive, and cost-efficient manner. Others thought the time period should be extended to 270 days. These extensions would allow negotiation of contracts with laboratories, purchase of equipment, modification of union contracts, and the establishment

. of recordkeeping systems. (Letter Numbers: 264;299;330;339;358)

Resoonse: Implementation for random testing will be required 180 days after publication of the rule. Since most licensees have much of their fitness-for-duty programs m place already, the NRC believes that 6e licensees should be able to concentrate on the drug testing provisions and complete implementation within the 180-day limit.

5.1,3 Comment: One commenter stated that the time frame for implementation should remain as proposed in the draft rule. (Letter Number: 319) 5-1

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L i

1 i Resoonse: Because of the complex provisions of the rule, the need for some licensees to establish contractual relations with laboratories, the need to develop implementation procedures, the need to augment existing training materials, and the need to coordinate the provisions of the rule with numerous contractors and negotiate with unions, the NRC is convinced that the quality of the programs will be enhanced by extending the implementation of all provisions of the rule until 180 days following publication of the final rule. Because of the importance of the rule, the NRC cannot support further extension of the implementation of the random testing provision of the rule past the 180-day deadline.

See: FRN, Supplementary Information, Section 17.2.

5.1.4 Comment

One commenter recommended that a revised draft rule be republished for public comment following the consideration and adoption of comments received during the current canunent period. (Letter Number: 309)

Resoonse: The NRC believes that there has: .n adequate time and opportunity for the industry to comment on the proposed rule. Another draft of the rule and public comment period is therefore unnecessary.

5.1.5 Comment

One commenter asked when the random testing provisions of the rule should be implemented. (i.etter Number: 35)

Resoonse: All provisions of the rule will become effective 180 days after publication of the interim final rule. See: FRN, Supplementary Information, Section 17.2.

5.1.6 Comment

One commenter asked if exemptions for the 90-day implementation schedule would be allowed for certain sections of the rule since the 90-day period is extremely short. (Meeting Comment: M-1.52)

Resoonse: The NRC recognizes the complexities of implementing the rule and has decided to increase the implementation period to 180 days after the publication of the final rule. Exemptions to the implementation requirements may be considered under Section 26.6 of the rule. See: FRN, Supplementary Information, Section 17.2.

I 5-2

6.0 OTHER CAUSES OF IMPAIRMENT i

i Several issues were raised regarding causes ofimpairment in addition to those identified in 1 the proposed rule. Commenters addressed the issue of alcohol misuse and its adverse effects on workplace safety. Commenters addressed the possible adverse effects on workplace safety from the use or misuse of legal drugs such as prescriptions or over-the-counter medications. Additional fitness-for-duty concerns such as fetigue, illness, or injury were also addressed by several commenters. {

1 6.1 Alcohol A number of commenters stated opinions on whether testing for alcohol should be required by the rule.

6.1.1 Comment

A number of commenters favored alcohol testing and recommended that it be considered a part of an overall drug testing program. Several of the commenters stated that the exclusion of alcohol from the rule indicated that the Commission was not serious about impairment on the job and it sends the wrong signal to workers and managers. Other commenters stated that alcohol testing should not be required by the rule, but suggested that the licensees undertake the initiative to test for alcohol. (Letter Numbers:

4; 19;231; 272;275;278;319;326;328; 329;331;334;339;342;370;375;377. Meeting Comments: M-1.73; M-1.84; M-1.178. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC believes that the potential for alcohol abuse leading to operational safety problems is great enough to warrant the inclusion of alcohol testing at i this time. The rule has been expanded to require testing for alcohol misuse whenever tests for drug use are performed. The rule also requires a five-hour period of abstention from alcohol to precede all scheduled work and complete abstinence while on duty. This does not preclude licensees from using individuals who need to respond to emergencies.

6.1.2 Comment

Several commenters stated they wem in favor of including alcohol in the rule and had specific recommendations for how to do it. Support was ex pressed both for "for cruse" and for random testing for alcohol although one commenter objected strongly to random testing. Most commenters recommended using a breath testing device.

A few commenters recommended using a blood test to determine B AC. A number of these commenters recommended the establishment of a standard blood alcohol cutoff level, typically at .04 percent. (Letter Numbers: 8;19;20;231;272;281;290;300;316;326; 327;331; 337;339;340;349;355;356;358. Me: ting Comments: M-1.85; M-1.86; M-1.87; M-1.88.)

Resnonse: The NRC believes that a comprehensive fitness-for-duty program must include chemical tests for alcohol misuse, and the rule has been expanded to include this requirement. The NRC also believes that because of the similarity between alcohol misuse and drug abuse as fitness-for-duty concerns, it is appropriate to test for alcohol misuse whenever tests are conducted for drug abuse. After reviewing information on testing for alcohol the NRC concluded that breath is an adequate specimen for testing, though blood tests can be expected to provide more accurate results. The NRC has therefore concluded that alcohol testing should be donc using breath specimens, but that workers who test positive should have the right to have a blood test performed to confirm i

6-1 0 - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - -

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or refute the breath test results. The information reviewed by the NRC strongly suppens the use of a 0.04% alcohol concentration cutofflevel (i.e.,4 mg of alcohol per ml of blood or per 210 liters of breath). See: NUREG/CR-5227, Supplement 1, Chapter 2.

6.1.3 Comment

Two commenters stated that testing for alcohol should be included in the rule with the exception that alcohol testing should not be required for employment or badging. (Letter Numbers: 298; 376)

Resoonse: The NRC believes that it is likely that pre-employment or pre-badging tests will be anticipated by workets, and that it would therefore be easy for a worker to pass these tests simply by abstaining for a relatively short period of time prior to the tests. This is true whether workers are being tested for illegal drug abuse or alcohol misuse. Though it may be relatively easy for a worker to pass such tests, it is very likely that any worker who fails such tests has a pronounced drug or alcohol problem. Because it is critical that any worker with such a pronounced alcohol problem be detected, the NRC believes that pre-badge testing for alcohol is necessary.

6.1.4 Comment

Two commenters stated that alcohol should be included in the rule, but expressed concern that it not be included in such a prescriptive way that implementation becomes a burden. (Letter Number: 224. Meeting Comment: M-1.158.)

Response: The NRC concurs that alcohol should be included in the rule and that the regulations pertaining to alcohol should not be unduly prescriptive. The NRC believes that the provisions in the revised rule regarding alcohol are not so prescriptive that implementation is burdensome, and that they cannot be less prescriptive without jeopardizing essential safeguards.

6.1.5 Comment

One commenter stated that the rule should allow licensees to prohibit on-site use of alcohol. (Letter Number: 300)

Response: The NRC expects that licensees will prohibit use of alcohol in protected areas to implement the requirements of 26.20(a) and (d). Also, the rule requires a five-hour period of abstention from alcohol to precede all working tours of covered employees, and complete abstinence while on duty.

6.1.6 Comment

One commenter stated that the Commission should provide guidelines for handling alcohol abuse. (Letter Number: 329)

Response: The rule has been expanded to address alcohol abuse, and the NRC has published detailed guidelines for conducting chemical tests for violations of the alcohol policy. The sanctions to be imposed are left to the discretion of the licensee. The rule has also been revised to require a five-hour period of abstention from alcohol to precede all work shifts and to explicitly require complete abstinence while on duty. This does not preclude licensees from using workers needed to respond to emergencies. See: NRC Guidelines, Section 2.4; NUREG/CR-5227, Supplement 1, Chapter 2.

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! 6.1.7 Comment: Several commenters .ed that the NRC should not include alcohol in the rule at this time or before public comment could be received and that industry initiatives may be adequate. The commenters recommended various industry standards including pre-badging, random and for cause tests, the use of breathalyzers, and a blood alcohol cutofflevel at .04 or .05. A few of the commenters took exception to pre-badging and/or random testing for alcohol. (Letter Numbers: 269; 275;317; 326;366;375;376.

See also subsections 3.5.23 and 3.5.24.)

Resnonse: After reviewing information on alcohol as a fitness-for-duty concern and infonnation on testing for alcohol misuse, the NRC concluded that it is essential that the rule addresses alcohol in a manner similar to the manner in which drug abuse is j addressed. The NRC believes that it is appropriate to test for alcohol misuse whenever testing for drug abuse is conducted, and that the 0.M% alcohol concentration cutoff level is appropriate (i.e.,4 mg of alcohol per ml of blood or per 210 liters of breath). The rule also requires a five-hour period of abstention from alcohol to precede all work shifts, and explicitly requires complete abstention while on duty. See: NUREG/CR-5227, Supplement 1, Chapter 2.

6.1.8 Comment

One commenter stated that alcohol testing should be authorized but not required by the NRC. (Letter Number: 376)

Response: The NRC reviewed information on alcohol misuse as a fitness-for-duty concern and concluded that alcohol misuse represents a fitness-ior-duty problem that is similar in magnitude and type to the problems created by workers' uses of other drugs.

Further, the NRC believes that the actions that should be taken to address alcohol misuse should be very similar to the actions taken to address drug abuse. The NRC therefore believes that alcohol should be addressed in the mle in a manner similar to which drug abuse is addressed. See: NUREG/CR-5227, Supplement 1, Chapter 2.

6.1.9 Comment. Several commenters stated that to add requirements for alcohol testing to the rule is unnecessary and should be left to the discretion of the licensee. (Letter Numbers: 252; 275; 316; 317; 326; 331; 335. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The majority of public comments received by the NRC addressing alcohol support an NRC rule on alcohol. Further, the NRC reviewed information on alcohol as a fitness-for-duty concern and concluded that workers' misuse of alcohol represents a potential fitness-for-duty problem similar in type and magnitude to the problem posed by workers' use of other drugs. The NRC believes that, in order to ensure the protection of public health and safety, it is essential that the rule require alcohol testing and a five-hour period of abstention from alcohol to precede all work shifts. See:

NUREG/CR-5227, Supplement 1, Chapter 2.

6.1.10 Comment: One com.menter stated that the rule should avoid requirements pertaining to alcohol, focusing instead on illegal drugs. (Letter Number: 300) 6-3

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' Resoonse: The majority of commenters who addressed this issue stated that the -

. rule should address alcohol. Further, the NRC reviewed information on alcohol as a L fitness-for-duty concern, and concluded that workers' misuse of alcohol represents a

. pronounced fitness-for-duty concem that is fundamentally similar to the concern posed by workers' use of illegal drugs. The public comments received and the information reviewed by the NRC strongly supports including alcohol in the rule. See: NUREG/CR-5227, Supplement 1, Chapter 2.

6.1.11 Comment: Two commenters stated that random testing should include the abuse oflegal drugs; however, testing for alcohol should be on a "for-cause" basis only. (Letter Numbers: 269;347)

Resoonse: After reviewing issues relevant to testing for legal drugs (NUREG/CR-5227, Supplement 1, Chapter 3) and alcohol (NUREG/CR-5227, Supplement 1, Chapter 2), the NRC has decided to require testing for alcohol but not to require testing for other legal drugs. The Commission has, however, directed its staff to further consider the need for testing for benzodiazepine and barbiturate usage. Because of the significant threat that workers' misuse of alcohol poses to public health and safety, the NRC can see nojustification for testing for alcohol on a "for cause" basis only.

6.1.12' Comment: One commenter stated that the term " impairment" should include a reference to alcohol, and references to drugs or other substances should be deleted. (Letter Number: 264)

Resoonse: The defm' ition of" impairment" in Section 26.3 has been deleted from the final rule.

.6.2 Leest Drues _

A number of commenters stated opinions on whether testing for legal drugs such as prescription or over-the-counter medications should be provided in the rule, and, if so, the types of these drugs to be included.  ;

6.2.1 Comment

Several commenters recommended that the policy for legal drug use (prescription and over-the-counter) should be for employees to notify their supervisors of the prescription drug being used, and for medical advice to be available to the supervisor and employee to determine whether or not the drug may produce impairment. One of the commenters stated that sanctions should be imposed if workert fail to notify their supervisors oflegal drug use. (Letter Numbers: 19; 271; 275;326;375:376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: After considering approaches to dealing with legal drugs similar to the approaches suggested by these commenters, the NRC concluded that requiring workers to report all use of legal drugs to their supervisors may be unnecessarily intrusive. While the rule does not forbid licensees from taking actions such as those suggested by these commenters, the NRC believes that it may be possible for licensees to take other actions that will be equally effective and less intrusive. For example, policies about the use of specific legal drugs can be developed. Because there are a vanety of approaches that may 6-4

be used to effectively addmss the concern of workers' uses of legal drugs, the NRC does not think that it is appropriate at this time to state in the rule that workers are required to report their use oflegal drugs to their supervisors. See: NUREG/CR-5227, Supplement 1, Chapter 3.

6.2.2 Comment

One commenter proposed that the policy for prescription drug use should be as follows: employees should notify the medical personnel of prescription drugs that they are taking. The medical personnel should make a decision about impairment. If an employee is randomly selected for urinalysis, he/she should notify the medical team admimstering the test about tne prescription drug. (Letter Number: 272)

Resnonse: After considering various approaches to addressing problems related to worker's use of legal drugs, the NRC concluded that requiring workers to report all use oflegal drugs to plant officials may be unnecessarily intrusive. While the rule does not forbid licensees from using the procedum described by ti:is commenter, the NRC believes that it may be possible for licensees to take other actions that will be equally effective and less intrusive. Because there are a variety of approaches that may be used to effectively address the concern of workers' uses oflegal drugs, the NRC at this time does not require workers to notify medical personnel of all use of legal drugs. See: NUREG/CR-5227, Supplement 1, Chapter 3,

6.2.3 Comment

Several commenters stated that the NRC should provide in the rule only a general overview of the effects of prescription and over-the-counter drugs and dietary conditions. They thought that these issues are beyond the scope of the NRC rule and should be handled on a case-by-case basis by the utility. A third commenter stated that even general guidance could interfere with the doctor-patient relationship. (letter Numbers: 19; 269;315;354)

Resoonse: After reviewing information about legal drugs as a fitness-for-duty concern, the NRC concluded that licensees should be given considerable latitude in this area, as suggested by the commenters. The NRC believes that more prescriptive regulations regarding prescription and over-the-counter drugs are not necessary at this time to protect public health and safety. Also, the Commission believes that licensee actions in this regard will not jeopardize doctor-patient relationships. See: NUREG/CR-5227, Supplement 1, Chapter 3.

6.2.4 Comment

One commenter stated that proper prescription drug use poses relatively few problems, but those that do arise should be handled on a case-by-case basis.

(Letter Number: 252)

Response: The NRC believes that prescription drug use has the potential for posing significant problems, and that it must therefore be addressed in licensees' fitness-for-duty programs. The NRC also believes that the rule ptovides licensees with adequate i flexibility in this area to deal with prescription drug use on a case-by-case basis should they j wish to do so.

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Comment: One commenter suggested that misuse of alcohol and prescription dmgs should be addressed by licensee programs and noted that his program leaves the decision to test for these substances to their Medical Director on a for-cause basis. (Letter ,

Number: 356)

Resoonse: The information mviewed by the NRC indicates that the misuse of alcohol causes significant fitness-for-duty concerns. The NRC believes that it is important to test for the misuse of alcohol whenever chemical tests for illegal drugs are conducted,  ;

rather than only on a for-cause basis. The Commission has decided not to require random '

testing for any pmscription drugs at this time. The NRC believes that for-cause testing may result from a medical evaluation in which there is reasonable suspicion that the employee may have a substance abuse problem. In such instances, the medical examiner is responsible for determining whether the employee should be tested for substance abuse.

However, the NRC believes that supervisors must also refer workers for possible testing because supervisors are often in the best position to detect aberrant behavior. See:

NUREG/CR-5227, Supplement 1, Chapters 2 and 3.

6.2.6 Comment

Two commenters pmposed that employees should report prescription drug use only after they have tested positive for it. (Letter Numbers: 19;263)

Resoonse: The NRC believes that it is possible that a worker's use of prescription drugs could lead to on-duty impairment, endangering public health and safety, before the drug use has been detected by a chemical test. The NRC therefore does not believe that the policy recommended by these commenters adequately ensures that the public's health and safety are protected. Licensees could develop a list of prescription drugs that should be reported, based on potential impairment.

6.2.7 Comment

One commenter asked for clarification on the policy for a positive test that reveals the use of an over-the-counter medication (e.g., Advil, Robitussm).

(LetterNumber: 35)

Resoonse: The NRC has not provided detailed prescriptive regulations mgarding workers' use of over-the-counter drugs, believing that licensees should be given considerable flexibility in this area. However, the NRC expects that the licensee would include a medical determination of whether the use of the over-the-counter medication is abusive. See: NUREG/CR-5227, Supplement 1, Chapter 3.

6.2.8 Comment

Several commenters stated that the response to positive tests for legal drugs should be based on advice fiom medical personnel and should in no way penalize the employee unless he is abusing the drug. (Letter Numbers: 275; 326;375;

.576. See also subsections 3.5.23 and 3.5.24.)

Responic: The NRC agrees that the medical review officer must play an impo4 tant role in evaluating presumptive positive test results for legal drugs. The rule does not require workers to be penalized for any use of legal drugs; however, the rule does require that in some cases workers be denied unescorted access to protected areas. This 6-6

denial of access is not intended to penalize workers; it is intended to protect public health and safety. Such denial of access is necessary when a worker may be impaired from drug use, regardless of whether that drug use is abusive or for reasonable medical purposes.

6.2.9 Comment

One commenter stated that testing for prescription drugs can obligate utilities to restrict the access of employees who are taking such drugs for physical ailments or conditions. For example, an employee with intermittent insomma may take barbiturates.

If this persists over months and years, the employee may always have restricted access to the power plant. (letter Number: 285)

Resoonse: It is for reasons such as those expressed in this comment that the NRC has decided not to require testing for prescription drugs at this time. The Commission has, however, directed the staff to further consider the need for testing for benzodiazepines and b;.rbiturates.

6.2.10 Comment: One commenter stated that adding legal drugs to the testing program would create a situation where everyone would eventually test positive. The commenter stated that the power plants may as well be shut down. (Letter Number: 228)

Resnonse: While the NRC does not necessarily agree with the degree of concem of the commenter, it has decided not to include any legal drugs other than alcohol in the drug 3anel. However, the list of substances to be tested for and the cutofflevels may be amendec in the future in response to advances in :cchnology, experience, and other factors.

6.2.11 Comment: Several commenters stated that licensees should be allowed to test for legal drugs based on current prevalent use of these drugs in their locale. (Letter Numbers: 8;316;326;343;355)

Resoonse: The NRC agrees. The rule permits licensees to consult with h> cal law enforcement authorities, hospitals, and drug counseling services to determine whether other substances (than those required in the rule) with abuse potential are being used in the locale and to add them to the testing protocol. Furthermore, the rule permits licensees to establish a broader panel of drugs and expects that for-cause testing will go beyond the minimum panel established by the NRC if needed to determine all causes of any impairment. Based on future experiences and changes in technology, the Commission's drug panel and cutofflevels n:ay be amended as necessary.

6.2. I 2 Comment: One commenter stated that prescription drug use should be identified at the time of a random test or following a positive drug test. Employees should inform I management of prescription drugs before going on duty. (Letter Number: 281)

Response: The NRC believes that workers' use ot' prescription drugs can lead '

to impairment, and that licensees' fitness-for-duty programs must address the use of these drugs. Requiring workers to report their use of all or specific types of prescription drugs >

to plant management may be an important component of a fitness-for-duty program.

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l However, requiring workers to mport the use of medications may also be considered intrusive to some workers, and there may be other methods of addressing prescription drug use that are less intrusive and equally effective (e.g., developing specific policies regarding the use of specific drugs). Because there are a variety of approaches that may be used to effectively address the concern of workers' uses oflegal drugs, the NRC does not believe that it is appropriate to publish detailed regulations concerning legal medications at this time. Nothing in the rule, however, prevents licensees from taking the actions described by this commenter. See: NUREG/CR-5227, Supplement 1, Chapter 3.

6.2.13 Comment: One commenter stated that the actions taken following a positive test for prescription drug use in cases where the employee cannot provide a current prescription, should be the same actions as those taken in the case ofillegal drug use.

(Letter Number: 19)

Resnonse: The NRC has decided not to specify sanctions to be used following the confirmed misuse of prescription drugs. Instead, licensees have the responsibility to establish sanctions for these circumstances that are sufficient to deter abuse of legally obtainable substances as a substitute to deter abuse of prescribed drugs.

6.2.14 Comment: Several commenters stated that the NRC's policy on prescription drugs should not penalize the employee for taking prescription medication, and it should avoid any situation in which the employee must consider career versus health. (Letter Numbers: 263;285. Meeting Comment: M-1.22.)

Resnonse: The NRC agrees that workers should not be penalized for using prescription medications. However, the NRC also believes that prescription medications, even when used properly to tmat medical conditions, can result in on-duty impairment that  ;

could emate an unacceptable risk to public health and safety. Therefore it is essential that the NRC rule and licensees' fitness-for-duty programs address workers' use of prescription medications, and that actions be taken to ensum that workers who use these medications do not endanger public health and safety.

6.2.15 Comment: One commenter stated that the random testing provisions of the rule  !

penalize those who have taken pmscription medication. (Letter Number: 285)

Resnonse: The testing procedures being instituted are well-established and highly accurate; false positives resulting from prescription medication have not been a problem. Moreover, review by a medical review officer has been required to address the problem of positives arising from valid use of drugs. See: FRN, Sections 6.1 and 6.2; Final Rule, Section 26.28.

6.2.16 Comment: One commenter stated general opposition to random testing but stated that ifillegal drugs are tested for, there should be testing for impairment-causing legal drugs also. (Letter Number: 370)

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Resnonse: The NRC has decided not to require testing for legal drugs other

- than alcohol at this time. It has, however, mquired the staff to further investigate the need

' for testing for benzodiazepines and barbiturates. ' Also, the Commission's list of substances to be tested for and existing cutofflevels may be amended in the future in response to advances in technology, experience and other factors.

- 6.2.17

. Comment: _ Two commenters stated that legal drugs should not be included in the rule. (letter Numbers: 300;315)

Resoonse: The NRC reviewed information on legal drugs as a fitness-for-duty v concem and concluded that there are many legal drugs that can be abused and/or can lead to  ;

on-duty impairment. The NRC believes that, in order to protect public health and safety, it  !

is essential that licensees' programs address legal drugs. In the future, experience and .I changes in technology may indicate the need to amend current drug panels and cutoff

, levels. See: NUREG/CR-5227, Supplement 1, Chapter 3.

6.2.18

. Comment: One commenter requested that the definition for " illegal drugs"

. should be changed to specifically address the topic of designer drugs. (Letter Number:

330)

. Response: The NRC understands that the drug schedules described in the definition of" illegal drugs" in Section 26.3 includes designer drugs and that a specific reference to " designer drugs" is not necessary.

6.2.19 Comment: Several commenters stated that because there is no distinction between sources ofimpairment in terms of their effects, the rule should include testing of all drug types, legal and illegal. (Ixtter Numbers: 3; 6;308;349)

Resoonse: While the rule does not require testing for legal drugs other than alcohol, it does require that licensees' fitness-for-duty programs address the potential

- misuse oflegal drugs.

6.2.20 Comment: One commenter took exception to the drug testing ,rovisions of the rule and made the general point that, logically, some legal substances can lave impairing

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effects. He stated that some individuals can be strongly affected by too much caffeine or by prescription drugs and asked if these should also be included. (letter Number: 334)

Resoonse: The NRC reviewed information on the use of both legal and illegal substances that may lead to on-duty impairment, including workers' use of caffeine. Based on this review, the revised rule adds alcohol to the testing schedule. It is impossible to conduct chemical tests for every substance that might cause impairment. While licensees need not test for abuse oflegal substances, the rule does require them to address this problem as part of their fitness-for-duty programs. See: NUREG/CR-5227, Supplement 1, Chapters 2 and 3.

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6.2.21 Comment: One commenter recommended replacing the second sentence of Section 26.20(a) with the following: The policy shall address use ofillegal drugs and the abuse of legal drugs (e.g., alcohol, prescription drugs and over-the-counter drugs).

(Ixtter. Number: 269)

Resnonse: The NRC believes the suggestion has merit and has adopted the suggestion.

6.2.22 Comment: A number of commenters suggested that the NRC add certain prescription and over-the-counter drugs to the panel of drugs identified in the HHS l Guidelmes. Suggestions for additional drugs included barbiturates, benzodiazepines, methadone, methaqualone, and propoxyphene. (Letter Numbers: 228;231;264;272; 275:319;328;329;339;349;358. Meeting Comments: M-1.27; M-1.28; M-1.81; M-1.82; M-1.83; M-1.177. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC has decided not to mquire testing for any of the suggested drugs at this time. The Commission has, however, directed its staff to further investigate i the need for testing of barbiturates and benzodiazepines. Those licensees that choose to test for any of these drugs should consult NUREG/CR-5227, Supplement 1, Chapter 3, for i guidance in developing policies.

6.2.23 {

Comment: One commenter stated that Section 26.20(a) fails to identify the criteria for testing for legal drugs and alcohol, yet requires the licensee to develop policies and procedures to deal with them. (Letter Number: 356)

Resoonse: The NRC has developed guidelines as Appendix A to Part 26 that addn:ss testing for alcohol. Also, licensees can consult NUREG/CR-5227, Supplement 1, Chapter 3, for guidance when developing policies on prescription and over-the-counter drug usage. See: NRC Guidelines, Section 2.7.

6.2.24 Comment: One commenter said that a reactor operator's contract should make it l a condition of employment that he or she will not report to work when mflexes, judgment, '

l or the ability to concentrate are impaired by licit or illicit drugs. (Letter Number: 23) l Resoonse: Nothing in the rule prevents licensees from including fitness-for- '

duty concerns in workers' contracts. However, stipulating details of workers' employment contracts is not within the NRC's jurisdiction.

6.3 Additionni Sources of Imoairment l Several commenters raised issues regarding additional sources ofimpairment such as fatigue, illness, or injury, and how the rule would address these concerns.

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6.3.1 Comment

Two commenters said that the designation of the program as a fitness-for-duty program was misleading, because fitness for duty also covers issues of adequate training and rest. Another said that a fitness-for-duty p ogram should look at the emotional, mental, and physical makeup of the employees. (Leuer Numbers: 42; 282)

Resnonse: Section 26.20(a) provides some examples of the fitness-for-duty concerns that must be addmssed in licensees' programs, although these examples are not intended to be an exhaustive listing of potential fitness-for-duty concerns. The more general and inclusive areas listed in Section 26.10(a) address all areas of concern listed by these commenters. The NRC agrees that fitness-for-duty programs should address workers' emotional, mental, and physical well-being and believes that this position is reflected in the rule. Them are fundamental requirements in NRC regulations that workers be trained and qualified to perform assigned tasks.

6.3.2 Comment

Two commenters considered the st itemems in the rule regarding i fitness-for-duty factors such as mental stress, fatigue, and illness to be too general. Cutoff levels for mental stress am not amenable to measurement. Therefore, the Commission  !

should not provide guidance but, instead, allow licensees to make case-by-case evaluations. Another commenter stated that behavioral observation is the way to handle these causes ofimpairment. (Letter Numbers: 252;359)

Resnonse: The NRC agrees that factors such as mental stress, fatigue, and illness are not amenable to precise defm' ition and measurement. Nonetheless, these factors can lead to significant on-duty impairment, and it is therefore essential that licensees develop policies addressing these concerns. By addressing these issues in a general fashion in the rule, the NRC believes it has provided licensees with the flexibility needed to address these concerns. Nothing in the rule prevents licensees from making decisions in these areas on a case-by-case basis, as proposed by the commenter.

6.3.3 Comment

One commenter stated that the general performance objectives either should be n phrased so that they address only illegal drug use (as does the rule) or the body of the rule should be changed to address,in depth, impairments caused by other factors.

(LetterNumber: 356)

Resnonse: After reviewing many factors that can create fitness-for-duty problems, the NRC concluded that at this time workers' use ofillegal impairing drugs and alcohol represents an area of concem mquiring more detailed prescriptive regulations than do the other areas of concern. The specific measures for dealing with other causes of impairment are left to the discretion of the licensee.

6.3.4 Comment

A number of commenters stated that stronger statements and more guidelines are needed to deal with stress, fatigue, illness, and physical and psychological impairments. In particular, several commenters emphasized impairment related to fatigue on the job, generally due to rotating shifts and working straight shifts. One commenter also requested a policy for employees who come to work with a cold. (Letter Numbers: 1; 42; 229;246;260;272;302;323;329;349;370) 6-11

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Resnonse: The NRC believes that it is not appropriate to provide additional prescriptive regulations regarding worker stress, fatigue, illness, and physical or psychological impairments. There are a number of ways of effectively addressing these problems. Often the approach used must be tailored to the specific case at hand. Sound management practices, which are consistent with the licensee's management style, can be expected to be more fruitful than would detailed prescriptive regulations. The NRC also believes that requiring licensees to ensure that workers are always fit for duty re, quires licensees to ensure that management actions (such as scheduling workers for tirmg patterns of rotating shifts or straight shifts) do not lead to workers being impaired.

6.3.5 Comment

Two commenten stated that the rule should cover employee attitude and morale as sources ofimpairment. (Letter Numbers: 1;260)

Responic: The NRC recognizes that poor worker attitudes and morale are relevant concems. However, the NRC believes that it is not appropriate to provide additional prescriptive regulations regarding morale and attitudes as sources ofimpairment.

The NRC believes that there are a number of ways of effectively addressing these problems, but that the approach used must be tailored to the specific case at hand. Sound management practices, which are consistent with the licensee's management style, can be expected to be mom fruitful than would detailed prescriptive regulations.

6.3.6 Comment

One commenter stated that illness is a significant cause of impairment and utilities should be encouraged to send sick employees home rather than trying to reduce sick time. (Letter Number: 1)

Resoonse: The NRC concun with this comment and believes that Section 26.20(a) of the rule addresses this concem adequately.

6.3.7 i Comment: One commenter stated that a properly designed fitness-for-duty program would identify all individuals suffering from any form ofimpairment and provide these individuals with the appropriate treatment. (Letter Number: 310)

Resoonse: The NRC concurs with this commenter, and believes that the concems expressed have been addressed in the rule in Sections 26.10(a) and 26.25.

6.3.8 i

Comment: One commenter recommended rewording Section 26.20(a) as follows: An overall description oflicensee policy on fitness for duty. The policy shall address the methods for detection of imoairment from illegal drugs and legal drugs (e.g.,

alcohol, prescription and over-the-counter drugs) and the possible consequences of such impairment < Licensee policy shall also address other factors that could affect fitness for duty such as mental stress, fatigue orillness. Written policy documents shall be in sufficient detail to provide affected individuals with information on what is expected of

)

i them, and what consequences may msult from lack of adherence to the policy. (Letter  !

Number: 300) 6-12

Resmnse: The proposed words would require licensees to describe how they will detect impairment. Impairment is dependent on man therefore, is not easy to specify. Furthermore, licensees'y case-specific policies should address morefactors and, than methods of detection ofimpairment from illegal drugs and legal drugs and the possible consequences of suchimpairment. For example, licensee policies should address factors such as all use ofillegal drugs, including use where on-duty impairment is not necessarily demonstrated, and on-site possession of drugs.

6.3.9 Comment

Several commenters stated that Section 26.20(a) should be reworded as follows: delete the sentence beginning with " Licensee" and substitute " Licensee policy shall also address other medical or psychological factors that could affect an individual's fitness for duty." (Letter Numbers: 269;299;330; 343;376) i Resoonse: The NRC believes it is appropriate to provide specific examples of fitness-for-duty concerns in 26.20(a) rather than using the more general terms "other medical or psychological factors." The NRC believes that licensees' written policies i should address specific potential fitness-for-duty problems, and for this reason has  ;

provided mental stress, fatigue, and illness as examples of the types of concerns that must be addressed in licensees' policies.

6.3.10 Comment: Two commenters stated that the best means to ensure that all employees are fit for duty each time they arrive at work is to rely on an attentive, involved, and concemed first-line supervisor. Other indicators ofimpairment are absenteeism, tardiness, decreased productivity, and unusual number of accidents or injuries on the job.

The supervisor should also be responsible for tracking these indicators. (Letter Numbers:

265;278)

Resoonse: The NRC agrees that all of the methods of ensuring that workers are fit for duty described by these commenters are important components of an effective 6tness-for-duty program. However, the NRC evaluated the effectiveness of those approaches and determined that these methods are not a suitable substitute for random chemical testing. See: NUREG/CR-5227, Chapter 4.

6.3.11 Comment: One commenter stated that the scope of the rule should be limited to drug testing only. (Meeting Comment: M-1.54)

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Resoonse: The purpose of the fitness-for-duty rule is to ensure that public I

health and safety is not threatened by nuclear power plant workers who are not Ht for duty.  !

l- Numerous factors in addition to drug abuse can cause workers to be unfit for duty, and the NRC believes it is essential to address these factors in the rule. Further, testing for drugs I is only one part of controlling the potential drug problem in the nuclear work place. The NRC believes that it is essential that the rule address all major potential fitness-for-duty problems comprehensively in order to protect public health and safety.

6.3.12 Comment: One commenter requested that all references to " impairment" from causes other than drugs or alcohol be deleted. In addition, the commenter proposed that j 6-13

i Section 26.10(a) read as follows: "Pmvide reasonable assurance that nuclear power plant personnel are not under the influence of alcohol or illegal drugs." (Letter Number: 298)

Resoonse: The NRC is concemed that workers who maintain unescorted access are not impaired in the performance of their duties from any cause, including, for example, transitory illnesses, or personal problems that might divert their full attention from their duties. Thus, the rule requires licensee programs to address worker impairment from these other causes and expects the licensees to take appropriate actions in these cases, such as referring the worker to the medical staff for evaluation or to the EAP. Thus, the NRC does not agree with the commenter that the scope of the rule should be limited in the manner suggested.

6.4 Other Issues One other issue was raised by the commenters regarding drug use and abuse.

6.4.1 Comment

Several commenters suggested that Section 26.10(c) should not specify the goal of achieving a " drug-free work place"; instead, this section should state that the goal of the rule is to achieve a " work place free of illegal drugs and alcohol and the abuse of legally prescribed drugs and their effects." A drug free work place is a work place free oflegal and illegal drugs, which the commenter thought is clearly not the intent of the rule. (Letter Numbers: 300;317;376)

Response: The proposed words have merit; however the NRC will retain the original words. The NRC believes that the phrase " drug-free workplace" in conjunction with the phrase "workplace free of the effects of such substances (drugs)," adequately conveys the intent of the rule. " Drug-free workplace" is not intended to deprive the workforce oflegal drugs used for legitimate purposes. Rather than such a literal interpretation of this phrase, the NRC intends the term to mean that licensees should take measures to prevent illegal drugs from being introduced into the protected area and to detect the presence of such substances should the preventive aspects fail.

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i 7.0 RANDOM TESTING The comments in this section address the random testing provisions of the rule. A number of the commenters were opposed to random testing in general, or were opposed to specific provisions related to random testing in the proposed rule. Conversely, a number of commenters supported random testing, or expressed support for certain of the random testing provisions in the rule. Several commenters recommended possible alternatives to random urinalysis and the testing rates. Other issues related to raodom testing were also raised by the commenters. Comments dealing specifically with alternatives to urinalysis may be found in Section 9.3.

7.1 Oooosition to Rnndom Testine Numerous commenters were opposed to random testing, and stated a variety of reasons for their opposition.

7.1.1 Comment

Many commenters, primarily unions and individual union members, wem opposed to random testing. Many specifically cited what they saw as degrading aspects of random testing. The commenters indicated that le invasion of privacy inherent in random testing, the lack of confidence in workers implied by the tests, and the notion that those tested were guilty until proven innocent were particularly degrading. Some of these commenters indicated that experienced workers might quit their jobs on principle if random testing was instituted. Others indicated that random testing would lead to lower worker morale, which could in turn affect safety. Others cited the cost of a random testing program. Another thought that random testing was not a way to cure societalills. (Letter Numbers: 2;10;11;13;14;15;16;17;18;21;25;26;27;28;29;30;31;32;33;34;35; 36;37;38;39;40;41;42;43;44;45;46;47;48;49;50;51;52;53;54;55;56;57;59;61; 62; 63; 64;65; 66;67; 68; 69;70;71;72;73; 74;75;76;77; 78;79;80; 81; 82; 83;84;85; 86;87;88;89;90;91; 92;93;94;95;96;97;98;99;100;101;102;103;104;105;106; 107;108;109;110;111;112;113;114;115;116;117; 118;119;120;121;122; 123;124; 125;126;127;128;129;130;131;132;133;134;135;136; 137;138;139;140;141;142; 143;144;145;146;147;148;149;150;151; 152;153;154;155;156;157;158; 159;160; 161; 162:163;164;165;166;167;168;169;170;171;172;173;174;175:176;177;178; 179;180;181;182;183;184;185;186;187;188;189;190;191;192;193;194; 195;196; 197;198;199; 200;201;202;203;204;205;206;207;208;209; 210;211;212; 213;214; 215;216;217;218;219;220;221;222;225;226;227;228;229; 234;235;236;237;238- ,

239;240;241;242;243;244;246;247;248;249;250;251;253; 254;255;256;258;260; 263;265;271;276;277;287; 291;294;296;301;308;310;323;332;333;334;340;361; 362;363;364;365)

Resnonse: The NRC is sensitive to the issues raised by these commenters and examined alternatives to random testing in depth to identify other methods of detecting and deterring substance abuse by nuclear power plant workers that would be equally effective with fewer disadvantages. As the random testing provisions of the rule indicate, the NRC was unsuccessful in identifying any altematives that are acceptable at this time. To minimize any degrading and intrusive aspects of random testing, the NRC Guidelines contain extensive provisions to protect workers' dignity and privacy. These provisions include clear specification of the circumstances under which urination will be observed, projections of the privacy of any personalinformation obtained through the program, and the requirement that testing program personnel conduct their activities with the highest degrees of professionalism and respect for the worker. The NRC does not agree that 7-1 L _-_-- _ _

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random testing implies that a worker is guilty until proven innocent and strongly believes 'i that the very large majority of individuals granted unescorted access to protected areas of nuclear power plants more than deserve the public trust that has been placed in them.

Based upon the trust and confidence that the NRC believes are warranted for this group of 1 workers, the rule specifically requires that no management actions be taken toward an J individual until all other explanations of a confirmed positive test result have been explored, j rather than requiring that a worker's unescorted access be revoked until he or she has been .

" proven innocent." Further, because the very large majority of nuclear power plant workers are also concerned about public health and substance abuse problems in the nuclear power industry, the NRC expects that most workers subject to this rule will not object to the costs and inconvenience of random testing until such time as equally effective methods of detecting and deterring substance abuse become available. The NRC agrees that substance abuse is a widespread societal ill and concurs that it is not in a position to address this national issue. However, the NRC's mandate to protect the public requires that it take the most effective actions possible to ensure that nuclear power plant workers who have developed a substance abuse or other problem that makes them unfit for their duties am removed from a position in which they could jeopardize public health and safety.

It is the NRC's belief that random testing is a necessary step toward meeting this goal.

7.1.2 <

Comment: One commenter objected strenuously to testing of any body fluids for substance abuse. (Letter Number: 336)

Resoonse: Fitness-for-duty programs involving testing are not uncommon for Federal employees and private sector employees in areas where public health and safety are an issue. Concern with public health and safety combined with evidence of a substance abuse problem has led the NRC to conclude that chemical testing is warranted in this industry. See: NUREG/CR-5227.

7.1.3 Comment

Several commenters indicated that random testing would discourage good management, because supervisors would rely on random testing rather than supervisory observation to detect drug abuse. (Letter Numbers: 271;334;352)

Resoonse: The NRC expects that licensee fitness-for-duty programs will ensure that supervisors are appropdately trained to detect aberrant behavior and declining job performance and will be encouraged not to rely solely on random testing to detect substance abuse among their subordinates. See: Final Rule, Section 26.22.

7.1,4 Comment: One commenter stated that random testing would do little to deter an individual with a serious drug problem. (Letter Number: 273)

Response: This assertion may be true in some cases, but the NRC believes that the combination of random testing with the other program elements required by the rule is the most effective means of detecting these individuals so that,if necessary, they can be removed from the work situations covered by this rule.

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7.1.5 Comment

Two commenters said that the NRC did not provide any research upon which the imposition of random testing may be based, and that the NRC did not -

present any conclusive evidence that fitness-for-duty programs that include random testing i are any more or less effective than those that do not. (Letter Numbers: 302; 310) j

-i' Resnonse: The NRC believes that the msearch does indicate that random testing will enhance the effectiveness of a fitness-for-duty program. Reduction of positive tests  !

over time has been experienced by the Navy and the Marine Corps, for example. See: i NUREG/CR-5227, Chapter 4.

7.2 Sunnort for Random Testine  ;

l A number of commenters supported random testing, and stated a variety of reasons for i their support. 1 7.2.1 l Comment: Several commenters indicated that there were no effective '

alternatives to random testing. (Ixtter Numbers: 19;252;275;281;303;326;349;358;  ;

358; 376. See also subsections 3.5.23 and 3.5.24.)

]

Resnonse: The NRC agrees that a fitness-for-duty program which did not include random testing would not achieve the same level of effectiveness. I 7.2.2 l l Comment: Several commenters voiced support for random testing. Many  !

indicated, however, that random testing was only one aspect of a successful fitness-for-duty progra :t One commenter felt that random testing was appropriate only for those  !

individuals whose actions could cause immediate and severe damage (e.g., reactor operaton; and senior reactor operaton). Other commenters, although in favor of random testing, expressed reservations regarding legal and financial aspects of random testing.

Another commenter noted that determining drug use by physical or mental impairment was not a sophisticated an and was open to interpretation and legal problems; thus random testing was the preferred alternative. (letter Numbers: 3;19;230; 272;297.;307;317; 319;330;339;342;358)

Resnonse: The NRC agrees that random testing is only one aspect of a successful fitness-for-duty program. The NRC also agrees that behavioral observation

l. techniques to detect physical and mental impairment are not sufficiently sophisticated to be solely relied on. The NRC believes that all persons with unescorted access to protected areas may pose a sufficient threat to safe operations if impaired or untrustworthy and, therefore, requires that these individuals be subject to chemical testing and on-going behavioral observation. See: NUREG/CR-5227, Supplement 1, Chapter 4; FRN,

!. Supplementary Information, Sections 18.2.1-18.2.3 (legal aspects of random testing) and Section 19.2 (financial aspects of random testing).

7.2.3 Comment

Two commenters said that random testing could improve or augment a comprehensive fitness-for-duty program. (Letter Numbers: 284;354) 7-3

b Resoonse: The NRC agmes with this conclusion.

7.2.4-Conurent: One commenter endorsed random testing as a strategy as long as it is combined with behavioral observation! (Ixtter Number: 6) '

Resnonse: The NRC agrees completely that random testing alone is not a sufficient strategy, and requires as a component of this rule that relevant penonnel, such as

- supervisors and escorts, be appropriately trained in behavioral observation techniques.

7.2.5 Comment

One commenter felt that random screening, which was claimed to be a strong deterrent, could be combined with routine physicals to lessen the impact on employees. (LetterNumber: 339)

Resnonse: , Combining random testing with a routine physical may have the effect of reducing the potential negative impact that testing has on employees, and licensees may choose to administer their annual physicals on a random basis. However, because only random testing conducted in a manner that ensures that workers have an equal probability of being tested each day provides the desimd level of continuing deterrence, the NRC expects that any worker who received an annual physical combined with chemical testing would continue to be subject to chemical testing for the remainder of the year.

7.2.6 Comment

One commenter noted that, if the FA A can require drug testing of flight crews, then it is reasonable for the NRC to require drug testing of nuclear power plant penonnel. (LetterNumber: 23)

Resoonse: The NRC agrees with the comment.

7.3 Alternatives to Random Testine

- Several commenters recommended alternatives or modifications to the random testing provisions in the proposed rule. Approaches suggested as alternatives include periodic testing, unannounced testing, for-cause testing, and supervisory or professional evaluations. See also Section 8 for comments concernmg alternatives to random testing.

7.3.1 Comment

Many commenters, primarily unions and union members, were in favor of behavioral observation and for-cause testing as an alternative to random testing.

. (Letter Numbers: 9;10;11;13;14; 15;17;18;21;24;25;26;27;28;29;30;31;32;33; 34;36;37;38;39;40;43;44;45;46;47;48;49;50;51;52;53;54;55;56;57;60;62;63; 64;65;66; 67;68: 69;70; 71;72;73; 74;75;76;77;78;79; 80; 81; 82;83; 84;85;86; 87; 88;89;90;91;92;93;94;95;96;97;98;99:100;101;102;103;104;105;106;107;108; 109;110;111;112;113;114;115;116;117;118;119;120;121;122;123;124;125;126; 127;128;130;131; 133;134;135;136;137;138;139;140;141;143;144;145;146;147; 148;149;150;152;153;154;156;157;158;159;164;165;166;168:169;171;172;173; 174;175:176;177; 178;179;180;182;183;185;186;187;188;189;190;191;192;193; 194;195;196;197;198;199;200;201;202;203;204;205:206;207;208;209;210;211; 212;213;216;217;218;219;220;221;222;225;226;233;241;246;251;260;263; 265; 7-4 i

271; 273;282;285;302;308;310;338;345;351;352;360. Meeting Comments: M-1.15, M-1.70, M-1.97.)

Resnonse: The NRC concurs with these commenters that behavioral observation and for-cause testing are important components of any fitness-for-duty program. The research literature has shown, however, that supervisors are often unwilling or unable to detect symptoms of substance abuse and often fail to take appropriate action.

In addition, many symptoms can be masked, or are not readily observable. As discussed elsewhere, reliability and trustworthiness to conduct assigned work are also important.

Therefore, the rule requires that licensees implement programs of behavioral observation and for-cause testing, but also requires random chemical testing to deter and to detect substance abuse. See: NUREG/CR-5227, Chapter 4; FRN, Supplementary Information, Section 5.2; NUREG/CR-5227, Supplement 1, Chapter 4.

7.3.2 Comment

One commenter said that a combination of psychological evaluation, background investigation, annual drug screening, and monitoring by trained personnel is mote than sufficient to detect personnel entering the protected area under the mfluence of drugs. Thus, random testing is not necessary. (Ietter Number: 59)

Resnonse: The NRC concurs with the commenter that, with the exception of annual drug screening, the program components listed are necessary to ensure the fitness for duty of nuclear power plant workers with unescorted access to protected areas. The NRC is not only concerned with detecting on-duty impairment, however, but is also concemed with nuclear power plant workers' trustworthiness and reliability to perform their tasks, and believes that the use ofillegal substances or misuse oflegal substances call these into question. The NRC has concluded that the program components mentioned by the commenter are not sufficient to pmvide the on-going detection and deterrence that are necessary to protect public health and safety, and that only random testing, combined with these and other program components, can adequately achieve the NRC's goals. See:

NUREG/CR-5227, Chapter 4.

7.3.3 Cssment

Two commenters stated that drug or alcohol testing may be appropriate under certain instances, namely pre-employmer.t screening, during annual

, physicals, and for-cause, but that random testing is not appropriate. (Letter Numbers: 42; I

223)

Resnonse: The NRC believes that these forms of testing are important but not sufficient for maximum detection and deterrence. Random testing directly addresses some of the weaknesses in these other screening procedures. See: NUREG/CR-5227, Chapter 4.

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7.3.4 Comment

One commenter believes that the combination of pre-employment testing, for-cause testing, and behavioral observation is sufficient for safety. (Letter Number: 271)

Resnonse: The NRC agrees that these procedures are important elements in ensuring safety but disagrees that they are sufficient. The NRC believes that random testmg is a more effective deterrent and is an important means of detecting the use ofillegal 7-5

drugs and abuse of other drugs that may otherwise go unnoticed. See: NUREG/CR-5227, Chapter 4.

7.3.5 Comment

One commenter was not opposed to testing under the following conditions: (1) before employment, (2) during annual physicals, and (3) for cause. This commenter also said that management should not be able tojudge off-duty morality, and suggested that random testing detracts from the supervisor's responsibility to manage the workplace. (LetterNumber: 293)

Ersponse: The NRC believes that these forms of testing are important but not sufficient for maximum detection and deterrence. Random testing directly addresses some of the weaknesses of these other techniques. The NRC is not directly concerned with off- i duty morality, but is highly concemed that individuals with unescorted access can be trusted to perform theirjobs reliably, and continue to demonstrate that they deserve the public trust that nas been placed in them by avoiding the use ofillegal substances and only using legal substances with the highest regard for safety. As regards to the final point, the NRC believes that relying solely on behavioral observation is likely to place more of a burden on supervisors than chemical testing. See: NUREG/CR-5227, Chapter 4.

7.3.6 Comment

One commenter stated that the fitness-for-duty policy at his utility, which consisted of behavioral observation and for-cause medical examinations, was worthy of consideration as an alternative to random chemical testing because it offered effecuve, meaningful, balanced detection and deterrence. (Letter Nuraber: 295)

Resnonse: The NRC has concluded that these procedures are important but not sufficient to maximize deterrence and detection. Random testing overcomes some of the limitations in these other approaches. See: NUREG/CR-5227, Chapters 4 and 6.

7.3.7 Comment

One commenter favored testing immediately before access is granted to a protected area, as a follow-up to verify that rehabilitated offenders continue to abstain i from drugs, and on a for-cause basis. (Letter Number: 307)

Resnonse: The NRC agrees that these procedures are important elements in ensuring safety but disagrees that they are sufficient. Random testing is an important means of detecting substance abuse that may otherwise go undetected using these altemative strategies. Further, random testing has been shown to have substantial deterrence effects. See: NUREG/CR-5227, Chapter 4.

7.3.8 I

Comment: One commenter strongly encouraged the NRC to continue to explore alternatives to random urinalysis. (Ixtter Number: 342)

Resnonse: After carefully considering the alternatives, the NRC concluded that random urinalysis testing should not be omitted from the fitness-for4uty program. The i

NRC will continue to explore potential alternatives to random testing and, if future changes in technology or experience with testing programs so indicate, will make appropriate amendments te this rule. See: NUREG/CR-5227, Chapters 4 and 5.

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7.3.9 l Comment: Two commenters said that they had successful programs that consisted of pre-employment screenings, for-cause testing, and employee assistance programs. (LetterNumbers: 16; 245)

Resoonse: The NRC agrees that these are important components of a fitness- l for-duty program, but do not provide sufficient detection and deterrence for the nuclear powerindustry. See: NUREG/CR-5227, Chapter 4.

7.3.10 Conwnent: One commenter stated that effective altematives to the HIIS Guidelines could be developed as long as they are based on the use of neuropsychological testing and for-cause chemical testing rather than random chemical testing. (Ixtter Number: 315)

Resoonse: The NRC is convinced that random testing is an essential element of an effective fitness-for-duty program, and has compelling advantages over the techniques listed by the commenter. See: NUREG/CR-5227, Chapter 4; NUREG/CR-5227, Supplement 1, Chapter 4; FRN, Supplementary Information, Section 5.2. j 7.3.11 1

Comment: One commenter indicated that behavioral observation would be more i effective at detecting impairment from other sources and was thus an effective substitute for random chemical testmg. (Letter Number: 265)

Resnonse: The NRC agrees that behavioral observation can detect certain types ofimpairment on the job, but the implications for worker trustworthiness and reliability due to the use of illegal substances can only be determined from chemical testing. Thus, the NRC has concluded that both behavioral observation and chemical testing are necessary to ensum worker fitness for duty.

7.3.12 Comment: One commenter mentioned that periodic, announced testing, while less effective than random medical exams, for-cause testing, and random testing, did screen out some habitual users. (Letter Number: 329)

Resoonse: The NRC agrees that periodic, announced testing will detect some chronic substance abusers. However, the NRC believes that random testing is a more effective method of detection and will provide a greater deterrent effe:t.

7.3.13 Comment: One commenter stated that, because drug screening occurs during l yearly physicals at his site, there is no reason to duplicate drug screening at other times during the year. (LetterNumber: 257)

Resoonse: The NRC does not agree that a scheduled annual drug test as a component of a yearly physical would provide sufficient detection and deterrence for the nuclear power industry. See: NUREG/CR-5227, Chapter 4.

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j E f 7.3.14 Comment: Two commenters said that the NRC acknowledged that for-cause testing would provide a more effective deterrent than random testing. (Letter Numbers:

273;302)

Resnonse:

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The issue is not whether one or the other is the mom effective, but whether the combination is more effective than either alone. The NRC believes that the combination of these strategies helps to offset the disadvantages of any one strategy.

Further, random testing can address issues of substance misuse and abuse, and their implications for worker reliability and trustworthiness, that a focus on impairment alone will not adequately address. Therefore, the final rule requires both for-cause and random testing.

7.3.15 Comment: One commenter contributed what he thought are four necessities for an effective fitness-for-duty policy: behavioral observation, yearly testing at a rate of 100% of the workforce with one day notice, an EAP, and a rehire program. (Letter Number: 2)

Resnonse: Some drugs covered by this rule,i.e., cocaine and alcohol, are either metabolized or excreted so rapidly that a one day notice may allow users to avoid detection. Behavioral observation, EAPs and conditions under which workers may be retumed to an unescorted access status are specified in the rule.

7.3.16 Comment: One commenter suggested that mandatory random testing be instituted at a site only if there was evidence of an existing drug problem, as identified through drug tests administemd during annual physical examinations. The commenter also favored the use of employee assistance programs (EAPs) and training in behavioral observation. (Letter Number: 291)

Resnonse: The NRC supports both the use of EAPs and training in behavioral l observation but suggests that the value of random testing as a means of preventing a drug l problem from occurring, rather than dealing with one after it has been detected, should not  !

be understated. In addition, there is evidence suggesting that substance abuse among workers in nuclear facilities is currently a problem warranting the institution of random tewting measures. See: NUREG/CR-5227, Chapter 4.

7.3.17 l I

Comment: Several commenters indicated that unannounced periodic testing was l an effective alternative to random testing. O.u commenter proposed that an A'!. native C 1 be added to Section 26.24(a)(2), to read: "The test may be conducted on an uno aunced periodic basis at irregular intervals so that employees do not know when testing W occur.

The tests will be administered so that a person completing a test is immediately available for another unannounced test. The licensee shall ensure that every employee is tested at least once a year." Another commenter stated that unscheduled testing of all employees is less open to accusations of bias. (Letter Numbers: 278;298. Meeting Comments: M-1.74; M 1.76; M-1.75.)

7-8

Resnonse: Unannounced periodic testing is not preferable to random testing; it would be no less intrusive and because it is not random it would be more vulnerable to l accusations of discrimination. The NRC believes that requiring random testing at a rate of f

100 percent per year meets the intent of these commenters.

7.3.18 Comment: One commenter suggested behavioral observation techniques are limited since physical and mental impairment can only be determined and be defended in court through a medical examination b) a licensed physician. (letter Number: 356)

Resnonse: The NRC is concemed both with impairment and with worker trustworthiness and reliability. Although examination by a licensed physician may provide e

evidence ofimpairment, only chemical testing in combination with an assessment by a Medical Review Officer can establish that legal substances have been misused or that illegal substances have been consumed. Therefore, the final rule requires chemical testing to detect substance abuse.

7.4 Testine Rates Several commenters recommended various altematives to the random testing rate provisions in the proposed rule.

7.4.1 Comment

Many commenters thought that the proposed 300 percent testing rate was too high, particularly since the percent of positives identified is so low. The high cost of frequent testing rate was often cited. Further, many commenters argued that any testing rate over 100 percent offered limited additional deterrence. Commenters also noted that no existing fitness-for-duty rule outside of the military samples are above 125 percent. l Commenters thought that it was not fair to compare the military, where a proven drug )

problem existed prior to the implementation of testing, to the nuc1 car industry, where no I proven drug problem exists. Commenters pointed out that substantial differences exist between military personnel and commercial nuclear power plant workers in terms of age, family responsibilities, and stability of workforce. A high testing rate would also discount other valuable aspects of a fitness-for-duty program, such as behavioral observation and EAPs. One commenter thought that frequent testing would increase the probability of errors. Finally, several commenters argued that a 300 percent annual testing rate would have a negative effect on 1.. orale. This lower morale could pose a greater risk to safety, quality, and productivity than the use ofillegal drugs. Alternative sampling sizes, ranging from 25 percent to 104 percent were suggested. (Letter Numbers: 19;223;230;246; l 252; 264;267;269;271;272;274;275;278;281;285;303;304;306;313;317; 319;324; i 326;329;331;334;335;336;339;340;343;349;354;356;359;366;367; 371;375:376. I Meeting Comments: M-1.91; M-1.108; M-1.ll5; M-1.ll6. See also subsections 3.5.23 and 3.5.24.)

1 Response: The NRC concurs that it is unnecessary to test a rate equal to 300 percent per year of the subject population. The NRC will require testing at a rate equal to approximately 100 percent per year of the subject population.

7.4.2 Comment

Many commenters thought that a 300 percent testing rate was i i

excessive but that the testing rate selected should be reviewed on a periodic basis and either 7-9 l

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raised or lowered, depending on the number of positive test results generated. A plant with few positives could test at a lower rate. The most common strategy suggested was to test at an initial rate of approximately 100 percent with the goal of reducing the rate to as low as 25 percent after a one to three year evaluation period and based on licensee experience.

Other commenters proposed an initial rate of 25 percent. One commenter proposed an initial rate of 300 percent, with a reduction to 100 percent based on experience. A few commenters suggested that testing experience also be used to add or delete drugs from the testing schedule. (letterNumbers: 252;269.;272;275;278;316;317;326;330;339; 358;360;366.;375. Meeting Comment: M-1.121. See also subsections 3.5.23 and 3.5.24.)

' Resoonse: The NRC agrees that a 300 percent rate is unnecessarily high for this population of workers and accepts the evidence suggesting that rates approximately equal in 100 percent are sufficient. There is not, at this time, sufficient evidence to indicate that lower rates are similarly effective. It is possible that the testing rate will be adjusted upon favorable results with workers in this industry. In regard to the last point, the NRC plans to periodically reevaluate the drugs required to be tested. The list of substances to be tested for may be amended in response to advances in technology, experiences, or other factors.

Also. the rule allows licensees to add drugs if appropriate due to local use patterns. See:

FRN, Supplementary Information, Section 5.2.

7.4.3 Comment

Because the population of workers at a nuclear power plant can vary drastically over time (e.g., during an outage), many commenters recommended that workers should be divided into different groups and that each gr.'up should be tested at the specified rate. Otherwise, permanent employees would be tested at a much higher rate.

The most commonly suggested division was between utility employees and contractors.

One commenter suggested that contractors not be included in the testing population at all.

One licensee suggested adding a category for worken with inactive badges. Another licensee suggested that the licensees be allowed the freedom to define the appropriate categories to suit their particular situation. Two commenters wondered how these populations would be quantified. (Ixtrer Numbers: 252;272;275;278;317;326;330; 339; 347;359;366;376. Meeting Comments: M-1.113; M-1.62; M-1.63. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Licensees have the flexibility within the rule to define subsets of the workforce, such as contracton who are only present during outages. It is the NRC's intent to make all workers subject to a minimum annual testing rate of 100 percent of the workforce while eligible to conduct activities within the scope of this rule.

7.4.4 Comment

One commenter said that Alternatives A and B as written in the proposed rule were unclear. (Letter Number: 271)

Resoonse: De NRC has opted for a flat 100 percent testing rate for several reasons, one of which is this rate's clarity and simplicity.

7.4.5 Comment

One commenter stated that since the inception of utility drug testing programs, the number of pre-badged positives has decreased while the concentration levels at which samples are deemed positive have been lowered. This suggests that future 7-10 i

i flexibility in testing rates and drugs tested for should be considered. (letter Number: 275.

See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC believes that discontinuing testing for any drug covered by this rule on the basis that few or no positive results are found may create conditions conducive to a problem occurring in the future. Flexibility is allowed regarding testing for additional substances but not in eliminating tests for the substances covered under this rule. )

The NRC may consider lowering testing rates or changing the panel of tested drugs in the  !

future based on industry experience, advances in technology, or other similar factors.

7.4.6 Comment

Two commenters suggested that random sampling be done without replacement, so that the entire population would be tested once before anyone was tested a second time. (Letter Numbers: 20; 273)

Resoonse: The NRC's position is that every individual needs to be continuously at risk of testing for maximum deterrence und detection.

7.4.7 Comment

One commenter suggested that the end of Section 26.24(a)(2)(i)

" testing rates for individuals already tested with negative results not be lower than 30 percent per year (2-1/2 percent per month) for the remainder of the testing year" be replaced with "at least 25 percent of those individuals tested two or more times." The rationale given was that, as presently worded, this section mixes a discussion of percentage tested with testing rate and could be difficult to interptet. (Letter Number: 317)

Resoonse: The NRC has adopted a flat 100 percent rate and, thus, these ambiguities have been avoided. 4

7.4.8 Comment

One commenter thought that, although Alternative B in Section 26.24(a) would reduce the raw number of tests required, it would be administrative 1y awkward and should not be considered as a feasible alternative. (Letter Number: 281)

Resoonse: The NRC agrees that some of these alternative testing schedules were unnecessarily complicated and has adopted a flat testing rate equal to approximately 100 percent per year.

j 7.4.9 1

Comment: Two commenters suggested that Alternative A be revised to read, "The tests must be conducted in a manner that provides at least 90 percent probability that each individual within the scope of the rule is tested at a rate of at least once a year, that testing is performed throughout the year, and that the testing rate for individuals already tested with negative results not be lower than 30 percent per year (2-1/2 percent per month) for the remainder of the testing year." A second commenter added to this the provisions j that persons not permanently assigned to the site be tested at the same yearly rate as others, that the rate be loweird to 200 percent and that, if random tests indicate less than 2 percent positive, the rate be lowered to 100 percent. (letter Number: 252;300) 7-11

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Resnonse: Since neither Altemative A or B was selected, the suggested revisions are not applicable. The NRC will consider lowering the proposed test rate in the future based on industry experience.

7.4.10 Comment: Several commenters suggested that unannounced annual testing be combined with random testing. Under such a plan, all workers would be routinely tested once a year and random testing would be conducted on a smaller sample. Suggestions for the random testing rate varied from 5,25, and 52 percent. Several of the commenters viewed this strategy as a compromise between high testing rates and the NRC's desire to assure at least 90 percent coverage of the workforce. (Letter Numbers: 269;275;326; 353;376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC selected a rate equal to approximately 100 percent of the subject population per year. The testing program was chosen on the basis of both simplicity and effectiveness; lower rates are not considered sufficiently effective at this time but may be considered in the future. Additional periodic tests may be conducted by the utilities. See: FRN, Supplementary Information, Section 5.2.

7.4.11 Comment: Two commenters proposed a modification to the testing program based on the safety significance of the work performed by different types of workers. One commenter specifically proposed that those with unescorted access to critical areas of the plant, such as the control room, be tested at 300 percent per year. Others, such as maintenance workers, who have unescorted access to the mst of the plant and whose work is likely to be checked by others should be tested at a lower frequency. Workers without unescorted access to the plant whose errors could affect the plant but whose work is reviewed by others should be tested rarely,if at all. (Letter Numbers: 3; 20)

Resnonse- The NRC rule does not apply to persons who do not have unescorted access to protected areas or are not required to physically report to a licensee's  ;

Technical Support Center or Emergency Operations Facility. As regards testing frequency, the NRC has concluded that a 300 percent rate is unnecessarily high for this population of workers and has selected a rate equal to approximately 100 percent of the subject population. The NRC believes that the rate of testing should oe determined by a judgment on the deterrent effect rather than distinctions among the safety significance of various j tasks.

7.4.12 Comment: One commenter thought that the division of the sample into two 1 groups in Altemative A effectively undercut the random aspect of the program, as well as  :

resulting in an excessive rate of testing. (Meeting Comment: M-1.117)

Response: The NRC agreed that some of the suggested alternative testing i schedules wem unnecessarily complicated and has adopted a flat testing rate equal to approximately 100 pement per year.

7.4.13 I Comment: One commenter suggested that personnel with unescorted access be tested at least twice a year, on a random schedule. (Letter Number: 23) 7-12

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l Response: After reviewing the evidence, the NRC concluded that a testing rate i equal to appmximately 100 percent per year would be sufficiently effective for this i population of workers. However, the NRC will monitor program effectiveness and may adjust this rate in the future. See: FRN, Supplementary Information, Section 5.2.

7.4.14 Comment: One commenter said that the costs of a fitness-for-duty program would become very burtiensome if their existing comprehensive medical screening program was combined with a 300 percent rate of random testing. (Letter Number: 329)

Resoonse: The NRC has concluded that a 300 percent rate is unnecessarily high for this population of workers and has selected a rate equal to approximately 100 percent of the subject population.

7.4.15 Comment: Two commenters questioned the NRC's rationale for choosing the pmposed rates of testing. One noted that the rates did not appear to be based on established research, and that the commenter's own experience suggested a testing rate of five to ten percent provided adequate deterrence. (Letter Numbers: 35; 330)

Resnonse: The NRC is convinced by the evidence that testing rates equal to approximate'y 100 percent are effective but does not agree there is sufficient evidence to indicate lower rates are similarly effective. See: FRN, Supplementary Information, Section 5.2.

7.4.16 Comment: One commenter said that the industry's position that the rate of testing should be determined by cost is an indication of the program's fallacy. (Letter Number: 308)

Resoonse: The industry's position is not necessarily the NRC's position. The NRC's main concem is public health and safety; cost is a secondary concern.

7.4.17 Comment: One cormnenter noted that under the 'NRC's proposed alternatives for testing, some worken; will escape random testing, and that these may be the very people who hase drug problems. (letter Number: 370)

Resnonse: The rate of random testing has been set high enough (approximately equal to 100 percent per year) that the likelihood that any worker will not be tested within a two-year penod is extremely low. However, the NRC agrees with the commenter that then:is the possibility that a worker with a substance abuse problem may escape random testing. The mie therefore provides other methods to detect workers with a substance abuse problem. See: NUREG/CR-5227, Chapter 4, 7-13 i

7.4.18 Comment: One commenter favored a higher testing rate than the altematives in

. the draft rule, stating that his employer tested at 5 percent per day, or 1,825 percent per year. (LetterNumber: 6)

Resoonse: On the basis of Ge available evidence, the high rates do not seem warranted for this population of workers. The NRC contacted the licensee and determined that the commenter was mistaken as to his employer's testing rate See: FRN, Supplementary Information, Section 5.2.

7.4. I 9 Comment: One commenter asked if random testing should continue if the full  !

complement of a facility was tested without a single positive result. (Letter Number: 308)

Resnonse: Random testing procedures must continue in order to sustain this success over time, particularly in view of employee tumover and the transitory nature of the contractor workforce. The testing rate required in the rule may be revised, however,if warranted by industry experience.

7.4.20 Comment: One commenter noted that random testing places no constraints on the number of times that a single worker can be tested. Thus, frequent tests could be given to an individual as a form of discrimination or harassment. (Letter Number: 338)

Resnonse: The process of random testing can result in some workers being tested more frequently than others but this would be the result of chance, not discrimination or harassment.

7.4.21 Comment: One commenter at the public meeting inquired about the Navy's experience regarding testing rates, rate of positives, and detem:nce effect of random testing. (Meeting Comment: M 1.39)

Resoonse: These issues are addressed in the FRN, Supplementary Information, Section 5.2, and in NUREG/CR-5227, Supplement 1, Chapter 4.

7.5 Other Issues Several commenters raised other issues related to random testing, including recommended changes to certain provisions of the proposed rule.

7.5.1 Comment

Several commenters indicated that, rather than retesting a worker who transfers from another facility, the licensee should be able to accept the results of the drug test fmm the first facility, provided that facility had an equally stnngent fitness-for-duty program. One commenter specifically suggested a one-year " window," during which time the individual would not have to be tested at the second facility. After one year, the worker would be integrated into the second facility's drug testing program. (Letter Numbers: 278;300:309;360) 7-14 1

Resoonse: The NRC's position is that it is important to immediately incorporate new employees into the random testing program given that they would have been subject to the random testing program at their previous facility had they not transferred. Every worker covered by the rule must be continuously at risk of testing to maintain maximum deterrence and detection.

7.5.2 Comment

One commenter said that the focus of random testing should be on deterrence and not detection. (Letter Number: 275. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC agrees that random testing is particularly effective in deterring illegal drug use or drug abuse but that this effectiveness is largely due to its also being an effective detection strategy.

7.5.3 Comment

Several commenters suggested that the wording of Section 26.3 be changed so that random tests are " administered" rather tbn " imposed." The reason given was that the connotation of the word " imposed" is too negative. (Ixtter Numbers: 252; 275:278;317;343; 349;376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The comment has been adopted.

7.5.4 Comment

One commenter said that the NRC should remove the reference to unannounced testing in Section 26.24(a)(2) because random testing is by definition unannounced. (LetterNumber: 340)

Response: Random testing can be announced; these are two separate concepts. ,

Thus, the rule retains this qualification.

]

7.5.5 Comment

One commenter suggested that random testing be defined as follows:

random testing means a system of unannounced drug testing administered in a statistically random manner to a group so that all persons within that group have an equal probability of selection. (letterNumber: 269) j 1

Resoonse: The comment has been adopted. j

7.5.6 Comment

Two commenters said that the rule should be clarified to indicate that l workers are subject to testing only while on duty. It is not reasonable, the commenter said, to call employees into work during days off, holidays, weekends, or vacations just so that a drug test can be administered. (Letter Numbers: 340;356)

Resoonse: The rule does not require that employees be called into work solely l for purposes of testing. The NRC expects that a worker be tested at the first available l

l-l 7-15 L_-_______ . _ _ _ _ _ _ _ __

opportunity once selected, or that the licensee institute some similar approach to assure that absent individuals am not omitted or tested at a lower rate than the program requires.

7.5.7 Comment

Two commenters said that workers should be required to sign a release agreeing to submit to periodic random testing of urine, saliva, or breath. (Letter Number: 23. Meeting Comment: M-1.26.)

Resoonse: The NRC Guidelines do require personnel to sign consent-to-testing forms for urine and breath; however, licensees may believe it prudent to obtain generic releases as a condition of employment. Saliva testing is not one of the requirements of the rule. As additional research becomes available to support the reliability and validity of

' saliva testing, the NRC may consider adopting this technique to assess substance use. See:

NUREG/CR-5227, Chapter 5.

7.5.8 Comment

Two commenters suggested that unannounced testing be defined as follows: unannounced testing means unannounced periodic and random tests. The commenter thought that the original definition was too restrictive. (Letter Numberr: 269; 298)

Resnonse: The NRC has concluded that the term " unannounced random testing" adequately conveys its intent. The term " periodic" suggests there are lapses between testmg periods and the NRC wants to stress the continuous probability of being tested.

7.5.9 Comment

One commenter asked how a worker's name would be returned to the sampling pot if his name was drawn on a day that he was not on the site or was on a different shift. (Meeting Comment: M-1.80)

Restonse: Once a worker is selected, he or she will be informed and tested at the first available opportunity, or that the licensee institute some similar approach to assure that absent individuals am not omitted or tested at a lower rate than the program requires.

Worken will not be called in solely for purposes of testing.

7.5.10 Comment: One commenter said that deterrence does not depend simply on the rate of testing;instead, deterrence depends on the knowledge that any worker may be tested on any day and that the risks and specific actions to be taken against those caught violating the policy outweigh the gain. (Letter Number: 252)

Esseng The NRC agrees with the comment.

7.5.11 Comment: One commenter said that random testing would be counter productive since drug abusers would switch to those drugs that cannot be detected easily or that are excreted more rapidly. (Letter Number: 302) 7-16

Resoonse: The NRC is also concerned with substance substitution and has revised the rule to include alcohol as one of the substances for which testing is required. In addition, Section 26.27(b)(5) has been amended to require that sanctions for the misuse of alcohol, prescription, and over-the-counter drugs be sufficiently severe to discourage substituting those substances for those on the panel of drugs for which testing is required.

The NRC will monitor research and testing technology pertaining to other drugs and may revise the rule at some future point to address these substances when the need becomes apparent and it is possible to detect their use.

7.5.12 Comment: One commenter noted that the effectiveness of random testing depends heavily on its deterrence effect. The discussion in the Notice of Proposed Rulemaking stated that deterrence is related to the perceived probability of detection, which is,in turn, related to the publicity given to posidve findings and sanctions imposed.

However, such publicity would be prohibited by Section 26.29, which provides for the protection of personal information on an employee obtained via the fitness-for-duty program. The commenter suggested that the NRC revise the discussion of the deterrence effect of random testing to be consistent with Section 26.29. (Ixtter Number: 359)

Resnonse: . The deterrence effect of random testing should not be affected by Section 26.29. There are sources of" publicity" other than confidential personal information which will be protected by that section. The most prominent of these may be the knowledge of sanctions that have been imposed on other plant personnel under this program.

7.5.13 Comment: Several commenters noted that follow-up testing was conducted at unannounced intervals rather than on a random basis and that Section 26.24(a)(4) should be revised accordingly. (Letter Numbers: 264;269; 275;278;298;317;329;340;343; 349; 371;376. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC concurs with these commenters and has revised Section 26.24(a)(4) to better express its intent in this matter.

7-17

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8.0 FOR-CAUSE TESTING A number of commenters raised issues regarding for-cause testing. These commenters remarked on the suitability of for-cause testing as an adjunct or alternative to random testing. Several questions were raised regarding the types of events and the persons responsible for imtiating for-cause testing. Questions also wem raised regarding provisions in the proposed rule for post-accident testing, and clarification was sought on the types of accidents which willinitiate testing. Several other issues related to for-cause testing were also raised.

8.1 Suitability of For-Cause Testine Issues related to the suitability of for-cause testing in a fitness-for-duty program were raised by several commenters. In addition to the following comments, Section 7.3 also contains several comments concerning for-cause testing as an alternative to random testing.

8.1.1 Comment

Two commenters explicitly stated that they support the portion of the rule requiring for-cause testing. (Letter Numben;: 272;356)

Resnonse: The NRC agrees that for-cause testing is a necessary provision of the rule.

8.1.2 Comment

Two commenters suggested that "for-cause testing" is the preferred method over random testing. One commenter suggested that it la successful with more emphasis on training and stricter consequences. The commenter suggests that "for cause" be used only when there is objective information indicating that the employee is jeopardizing workplace safety or is not performing his/her job because of impairment.

(Letter Numbers: 267;308)

&sponse: The NRC believes that random testing is the preferred method over for-cause testing in terms of detection and deterrence. However, the NRC agrees that for-cause testing may be very effective when training and sanctions are emphasized, and requims that licensees provide their employees with policy communications and awareness traming. In addition, supervisors and escorts are to receive training to detect the use, sale, or possession ofillegal drugs, or to detect substance abuse. The NRC agrees with the commenter that for-cause testing should be based on objective information. By definition, for-cause testing is based on masonable suspicion, i.e., objective information, that the employee may be jeopardizing workplace safety or demonstrates degraded, work performance which may be due to substance abuse.

8.1.3 Comment

One commenter explicitly agreed with the proposed rule that "for-cause testing" is dependent on the ability of managers, security, or regular medical staff to identify employees who are at risk, and requires strong support from company management. (LetterNumber: 329) ksponse: The NRC believes that for-cause testing should not be limited to

" post-accident situations" and that although behavioral observations have some

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l disadvantages (see 53 FR 36807), it is an important element of an effective fitness-for-duty program. The NRC agrees that the effectiveness of achieving the primary goal of testing is dependent on the ability of supervisors, managers, security, or regular medical staff to j

identify workers who may be unfit for duty, and that effective for-cause testing requires l

strong support from licensee management. The NRC believes that the rule addresses this j issue by requiring extensive supervisory and escort training in Section 26.22. l 8.1.4 I' Comment: One commenter stated that drug testing should be "for cause" only. }

If a connection between off-the-job activities and the operation of the plant cannot be  !

established, then the NRC should stay out of the mgulation of off-the-job activities.  !

(I2tterNumber: 308) l Resoonse: 4 The NRC believes that for-cause testing is a major tool for dealing i with on-the-job impairment. However, the NRC also believes that, while chemical tests I for drugs do r.ot establish impairment from that drug use per se, a confirmed positive test  !

result does establish recent drug use, and that such drug use is connected to plant 4 operations. The use ofillegal drugs by a nuclear power plant worker demonstrates a lack of trustworthiness and a lack of reliability on the part of the worker. Trustworthiness and reliability are important fitness-for-duty concerns that should be addressed in the rule.

8.2 Initiation of For-Cause Testine A number of question ' vere raised by commenters regarding the initiation of for-cause testing, that is, what events would initiate a for-cause test and who would be responsible for referring a worker for testing.

8.2.1 Comment

Several commenters suggested changes to the definition of"for-cause testing." These commenters stated that the use of" impairment" as a criterion is inappropriate, because a standard scientific or medical definition for " impairment" does not exist. Two of the commenters stated additionally that the rule should not specify who is responsible for initiating for-cause testing, but rather leave this to the discretion of the individual utilities. (Letter Numbers: 264;275; 278;371;376. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC made several revisions in the final rule related to for-cause testing. The definition of"for-cause testing"in Section 26.3 has been deleted from the rule, and use of the term " impairment" has been deleted from the for-cause testing provision in Section 26.24(a)(3). In addition, the determination of who is responsible for mitiating for-catise testing is left to the discretion of the lice .see, depending on the nature of the for-cause referral, such as degraded work performance, an accident, or upon evidence that indicates the use, sale, or possession ofillegal drugs.

8.2.2 Comment

One commenter stated that allowing employees to identify others who may be impaired by drugs may have some negative side effects. Some legitimate actions (rolling a cigarette) may be viewed with unnecessary suspicion. This could produce feelings of distrust, suspicion, and paranoia among workers. (Letter Number:

330) 82

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l Resoonse: The NRC trusts that workers will exercise the necessary responsibility and discretion to distinguish legitimate actions from those which indicate the on-site use, sale, or possession of illegal drugs, or substance abuse. The NRC believes that this issue should be properly addressed in the licensees' policy communications and awareness training (Section 26.21), and training of supervisors and escorts (Section .

26.22). /

8.2.3 )

Comment: A few commenters suggested that when an employee demonstrates impairment, decisions about testing should be made by a physician, after examining the employee. (LetterNumbers: 271;342;370)

Resoonse: The NRC believes that a medical evaluation needs to be a part of the fitness evaluation when a worker is impaired or when the worker's fitness is questionable.

Because medical evaluations lack the necessary degree of validity and reliability, the NRC does not agree that for-cause testing should be dependent on the results of a medical evaluation. The NRC believes that supervisors and escons are capable of making a for-cause referral of a worker who demonstrates aberrant behavior. Licensees, at their )

discretion, may also require the worker who is referred for-cause to be evaluated by a medical examiner.

8.2.4 Comment

Two commenters recommended rewording the definition of"for-cause testing" to: "'For-cause testing"' means chemical testing at the request of a supervisor or other responsible management official, based on a reasonable suspicion that an individual's ability to perform his/her duties is impaired for whatever cause or the individual is exhibiting aberrant behavior." (Letter Numbers: 281;349)

Resoonse: The definition of"for-cause testing" in Section 26.3 has been deleted from the rule and the circumstances under which for-cause testing is required have been more clearly defined in Section 26.24(a)(3).

8.2.5 Comment

One commenter recommended that the defm' ition of "for cause" be replaced with: "'For-cause testing' means chemical testing based upon documented aberrant behavior / inability to perform, credible allegations, occurrence of an accident or negligent careless act." The commenter felt that the original definition is too restrictive.

(LetterNumber: 269)

Resoonse: The definition of"for-cause testing" in Section 26.3has been deleted from the rule and the circumstances under which for-cause testing will occur have been more clearly defined in Section 26.24(a)(3).

8.2.6 Comment

One commenter requested that the term " reasonable suspicion," in the definition of for-cause testing be clarified. (Letter Number: 330)

Resoonse: The definition of"for-cause testing"in Section 26.3 has been deleted from the rule and the circumstances under which for-cause testing is required have  ;

been more clearly defined in Section 26.24(a)(3). The NRC believes that the dictionary I 8-3

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adequately defines the term "masonable suspicion" as used in Section 26.24(a)(3) and that it should not be furtherdefined. $

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8.2.7 comment

One commenter recommended the inclusion of a definition for

" reasonable suspicion" as follows: "' Reasonable suspicion' means to surmise to be true or probable based on specific facts and reasonable inferences from those facts in light of experience or training which indicates that an individual may be using or has recently used alcohol or drugs or may be in possession of alcohol or drugs or may be engaged in illegal drug activities. Reasonable suspicion may be based on reliable statements made by other individuals. Actual observation ofimpaired performance of duties is not necessary."

(Letter Number: 349)

Response: The NRC believes that the revised language in Section 26.24(a)(3) is adequate to communicate its intent with mgard to for-cause testing.

8.2.8 Comment

Several commenten suggested rewording the definition of"for-cause testing" as follows: Sentence beginning with "For-cause testing . . . " should be i changed to read "For-cause testing means chemical testing based upon reasonable suspicion that a person may have demonstrated aberrant behavior (or may have used drugs)." This change removes the reference to being impaired. (Letter Numbers: 298;299;317;326; 343)

Birmnse: The definition of"for-cause testing" in Section 26.3 has been deleted from the rule, and the NRC believes that the revised language in Section i 26.24(a)(3) captures these commenters' concems.

8.2.9 Comment- One commenter stated that for-cause testing should result from I medical evaluations, even if they are not related to suspected substance abuse. (Letter Number: 271) {

Resoonse: The NRC believes ttat a medical evaluation needs to be a part of the fitness evaluation when a worker is impaired or when the worker's fitness is questionable.

Because medical evaluations lack the necessa.y degree of validity and reliability, the NRC ,

does not agree that for-cause testing should be dependent on the results of a medical l evaluation.

8.2.10 i Comment: One commenter stated that guidance for determining actual ,

impairment for "for-cause testing" should require documer.tation supplied by two l management officials that indicates the reasons for suspecting the employee of being j impaired. (Letter Number: 308) t i

Response: The NRC does not believe that a minimum of two managers should be required to document a worker's impaired behavior. In some cases, the impaired  ;

behavior may be observed by only one manager during a task that cannot be easily '

repeated. Second, the NRC believes that immediate supervisors and managers are close to their worken and directly monitor their performance on a frequent or daily basis. Thus, 8-4

they are well-qualified to make reasonable and accurate assess.ents of whether a worker may have a substance abuse problem ori:, r.hibm ag serrant behavior. For these reasons, the NRC believes that documenta& .. by two Ivaagers Slating that a worker is impaired or has a substance abuse p-La is unnecessa.y.

-8.2.11 Comment: Several commenters stated that the " testing for cause" examples need to be better defined. Suggestions offered in these comments included: (1) on-site observation of use or possession of drugs or alcohol; (2) conduct consistent with being under the influence of drugs or alcohol; (3) hearsay or anonymous allegations where investigation shows that additional corroborative information or circumstances exist; (4) involvement in an unusual or suspicious circumstance that could reasonably lead to a conclusion of possible drug or alcohol involvement; (5) a situation resulting in a radiation exposure or release of radioactivity in excess of regulatory limits that could indicate possible drug or alcohol involvement; and (6) situations involving actual or potential substantial degradations of the level of safety of the plant that should indicate possible drug or alcohol involvement. (Letter Numbers: 275;306;317;326;343;349;376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC believes that the revised language in Section 26.24(a)(3) adequately communicates its intent with regani to for-cause testing.

8.2.12 Comment: One commenter suggested that employees undergo drug / alcohol screening in the following situations: (1) an employee is myolved in an on-the-job accident requiring medical treatment beyond first aid, reportable under provisions of the Occupational Safety Health Act (OSHA); (2) an employee's job performance or behavior suggests that the employee may be under the influence of alcohol or drugs; and (3) the utility receives information or allegations which, after investigation, provide reasonable cause to believe the employee may be involved with drugs or alcohol. (Ixtter Number:

329)

Resoonse: The NRC believes that the n:asons discussed for testing for cause in Section 26.24(a)(3) are sufficient. Licensees may identify additional circumstances in which for-cause testing is warranted.

S.2.13 Comment: One commenter suggested that Section 26.24(a)(3) be reworded as follows: " Testing for cause following observed behavior indicating possible drug abuse or upon receiving credible information that an individual is abusing drugs." This change would limit the scope of post-incident testing to those cases where there is a reasonable suspicion that drugs are myolved. (Letter Number: 252)

Resoonse: The NRC believes that the revised language in Section 26.24(a)(3) is adequate to capture the commenter's intent.

8.2.14 Comment: One commenter asked that in the case in which an employee has been involved with illegal drugs while in a protected area, what are the criteria to determine involvement and who makes these decisions? (Letter Number: 273) 8-5

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Resoonse: The term " involvement" in this case means use, sale, or possession ofillegal drugs. Obviously any behavior indicative of the use of alcohol or illegal drugs while in a protected area will result in for-cause testing. Sale or possession should also result in for-cause testing since use may have occurred. Licensee management, supervisors, and escorts are responsible for determining whether a worker is involved with illegal drugs in a protected area. Therefore, supervisors and escorts are to receive training on the techniques for recognizing drugs and indications of the use, sale, or possession of drugs; behavioral observation techniques for detecting degradation in performance, impairment, or changes in employee behavior; and procedures for initiating appropriate corrective action, including the referral process.

8.3 Post-Accident Testine A number of commenters sought clarification on the types of accidents in which post-accident testing would be initiated, and who would be responsible for initiating the testing.

8.3.1 1

Comment: One commenter asked if an individual tests positive after an accident, would the accident automatically be blamed on the marijuana use or would the search continue for another perhaps more important cause. (letter Number: 229)

Resoonse: Post-accident urinalysis screening is to be conducted as soon as possible after accidents involving a failure in individual performance which results in personal injury or in a radiation exposure or release of radioactivity in excess of regulatory limits if there is a reasonable suspicion that the worker's behavior contributed to the event.

The NRC believes that post-accident testing of those immediately involved or those responsible for such an accident is only one aspect of the post-accident investigation, and >

that it does not necessarily satisfy or preclude other investigative requirements to include  !

the determination of contributing causes.

8.3.2 Comment

Several commenters obscrved that Section 26.24(a)(3) of the rule indicates that "for-cause testing" should occur after incidents involving a failure in individual performance resulting in personal injury. Some accidents are simply first aid injuries. The commenter asked if these types ofinjuries require or indicate the need for "for-cause testing?" (Ixtter Numbers: 264;281;309;340. Meeting Comment: M-1.118.)

Resnonse: In the event of an accident, the NRC believes that post-accident testing may be necessary to determine whether the cause of the accident was related to substance abuse. Unless otherwise stated in Section 26.24(a)(3), the licensee should determine whether post-accident testing is necessary, based on reasonable suspicion and on the nature and severity of the accident.

8.3.3 Comment

Several commenters stated that requiring "for-cause testing" that immediately follows an accident can lead to problems related to understanding the cause of the accident. For example, persons involved may not come forward to describe what happened. An immediate requirement of"for-cause testing" may actually interfere with 8-6

OSHA's authority. Instead, commenters felt that the incident should first be investigated and then tests conducted as warranted. (Letter Numbers: 229;246;252;323;340)

Resoonse: The NRC believes that post accident testing is necessary to determine whether the cause of the accident is related to substance abuse, if reasonable suspicion indicates that it may be a drug-related incident. The NRC believes that post-accident testing conducted by the licensee will not interfere with the Occupational Health and Safety Administration's (OSHA's) responsibilities or authority to investigate the accident, or in any way interfere with their duties. In addition, the NRC believes that testing as soon as possible after the incident is necessary to determine (or eliminate from consideration) all contributing causes. This must be done immediately because drugs or metabolites and alcohol are excreted over time and the levels in the urine consequently decrease in some cases, within a short period. Therefore, the NRC believes that it is necessary to require that post-accident testing be conducted as soon as possible after the incident.

s 8.3.4 Comment: One commenter requested a definition of the phrase " actual or potential substantial degradations of the level of safety of the plant." (Meeting Comment:

M-1.120)

Resoonse: A " substantial degradation" is any event meeting the criteria for a site area alert of the criteria for a serious emergency classification under the licensee's emergency preparedness plan. However, the NRC wishes to stress that it is concerned with potential as well as actual degradation of the level of safety.

8.3.5 i

Comment: One commenter asked ifin the case of radiation exposum or a

. rel ease fo ra di oactiiv tyin excess o l atorylimi ts,whi f regu h oyees c emp l are to eb teste d--th e employee who was exposed, the management, or the persons involved in actions that may have led to the exposure? (Meeting Comment: M-1.119)

. Response: The NRC expects that in the case of radiation exposure or a release of radioactivity in excess of tegulatory limits, persons who may have been individually responsible for the accident will be tested for-cause, based on reasonable suspicion and the specific circumstances surrounding the incident.

8.4 Other Issues '

i Several other issues related to for-cause testing were raised by the commenters.

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8.4.1 Comment

One commenter suggested that the Commission provide licensees i and employers the option of collecting blood or urine samples or both in cases of "'for-cause testing.'" (Letter Number: 8)

Resnonse: The NRC believes that urinalysis for drugs or drug metabolites is sufficient. To determine the presence of alcohol, the worker will be tested with a j breathalyzer, and has the option of providing a blood sample for confirmatory purposes.  !

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8.4.2 Comment

One commenter stated that " testing for cause" should be defined in therule. (IxtterNumber: 330)

Resnonse: The definition of"for-cause testing" has been deleted from the rule.

The NRC believes that the revised language in Sect'on 26.24(a)(3) provides an adequate description ofits intent with regard to for-cause testing.

8.4.3 Comment

One commenter stated that the definition for "for-cause testing" should include an explicit statement that situations in which employees engage in off-site drug use should result in a for-cause test. (Letter Number: 316)

Resnonse: The conditions leading to for-cause testing in Section 26.24(a)(3) have been clarified to include testing in response to emdible information that an individual is abusing drugs or alcohol. The NRC expects that a test will be conducted whether the substance use is on- or off-site, and believes that the current wording of the rule adequately communicates its intent.

8.4.4 Comment

Two commenters stated that in cases involving "for-cause testing,"

the employee should be represented, assisted, and counseled by a union representative.

(Letter Numbers: 263;308)

Resnonse: The NRC believes that it does not have the authority to determine whether employees should be represented, assisted, and counseled by a union representative in cases involving for-cause testing. The presence of union representatives in a for-cause testing circumstance would be an issue for union-management bargaining.

However, for-cause testing may not be delayed beyond a brief period to provide an opportunity to obtain a union repmsentative's presence.

8.4.5 Comment

Several commenten stated that the terms " mental stress, fatigue, and illness" should be substituted with the broader terms " medical and psychological facton."

This would serve to clarify that the supervisor's job is not to determine cause, but to recognize and mfer for evaluation an observed condition of general unfitness. (Letter Numbers: 264;275;298;317;326. See also subsections 3.5.23 and 3.5.24.)

Resnonse: While the NRC concurs that the supervisor's job is not to determine cause ofimpairment, the NRC does not believe that the specific examples provided in Section 26.20(a) indicate that supervisors have this responsibility. Further, the NRC believes it is appropriate to provide specific examples of fitness-for-duty concerns in 26.20(a) rather than using the more general terms " medical and psychological factors."

The NRC believes that licensees' written policies should address specific potential fitness-for-duty problems, and for this reason has provided mental stress, fatigue, and illness as examples of the types of concems that must be addressed in licensees' policies.

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9.0 RELIABILITY OF TEST RESULTS A number of commenters expressed concern regarding the reliability of urinalysis test results. Specifically, commenters expressed concern about whether standardized I procedures are to be used by licensees to minimize errors in test results. Commenters also ,

l expressed concern about other sources of error in urinalysis test results. A number of

'commenters recommended various alternatives to urinalysis. Other issues r, elated to the reliability of test results were also raised by the commenters, including recommended changes to provisions in the rule.

9.1' Standardized Procedures Reanired to Minimize Errors Several issues were raised regarding the reliability of urinalysis test results and the l procedures required to minimize errors.

1 9,1.1 Comment: A number of commenters expressed concern about the perceived high rate of false positive test results and the possible consequences to workers. One commenter contended that immunoassay screening tests have false positive rates of five i percent. One commenter asserted that HHS certified laboratories have false positive rates  ;

of 60 percent. Another commenter cited a Human Relations Institute & Clinics report clainung that laboratories using initial and confirmatory testing procedures have had false positive rates ranging from 4.5 percent to 23.8 percent. Two commenters cited Center for Disease Control (CDC) study data to claim that testing technologies for urinalysis are too inaccurate in general, while another comment cited CDC study data to claim that urinalysis testing generates high rates of false positive and false negative test results. One set of commenters wanted the NRC to ensure a 100 percent, or error-free, testing rate. (Letter Numbers: . 5; 234; 235; 236; 237; 238; 239; 240; 242; 243; 244; 247; 248; 249; 250; 253; 254;255;256;257; 258; 277; 282;287;294;295;296;301; 310;315;361; 362;363;364; 365. Meeting Comment: M-1.35.)

Resnonse: Urinalysis tests can accurately and reliably identify persons who abuse drugs. Improper specimen collection, poor chain-of-custody documentation, improper laboratory analysis procedums, and reporting of unconfirmed positive initial test results are the principal causes of false positive results. Because the NRC recognizes the concern of nuclear power plant workers regarding the adverse consequences which may result from false positive test results, licensees are required to undertake comprehensive measures to ensure the reliability and accuracy of test results. First, only HHS-certified laboratories and licensee testing facilities are authorized to perform urine drug testing for

- NRC licensees, vendors, and hcensee contractors, pursuant to the NRC Guidelines for nuclear power plant alcohol and drug testing programs. Second, the NRC Guidelines specify procedures for specimen collection, chain-of-custody, specimen analysis, quality assurance and quality control measures, methods to verify the accuracy of the analytical procedures, recordkeeping and reporting requimments for the protection of individual rights, and personnel qualification and certification requirements for laboratories engaged in chemical testing. Thini, to identify po3nive initial test results which are false, licensees are required to have all positive initial test results confirmed by an HHS-certified laboratory with an alternative analytic procedure,i.e., gas spectrometry / mass spectrometry (GC/MS).

Fourth, final review of the test results is an essential part of the licensecs' testing program.

All confirmed positive test results shall be forwarded to a Medical Review Officer who is responsible for reviewing laboratory results generated by an employer's drug testing program, and this person shall make a final determination regarding the accuracy of 9-1

confirmed test results. Fifth, as an additional safeguard against false positives and as an additional quality control measure, licensees are authorized to split specimens, according to specifled storage and chain-of-custody procedures. In the event that the first specimen is confirmed positive, the second specimen may be forwarded for testing by a second HHS-certified laboratory. For a discussion of the reliability of current screenmg and confirmatory testing techniques, see NUREG/CR-5227, Chapter 5; NRC Guidelines;  ;

FRN, Supplementary Information, Sections 6 and 13.

9.1.2 Comment

One commenter stated that the number of false positive test results will likely increase as a result of the proposer

• rule since the rule does not specify the types of tests licensees must use and the proposed nJe allows licensees to use excessively low cutofflevels. This situation should be avoided, given the dire consequences for a worker's career from having a false positive test result. (Ixtter Number: 338) <

l Resoonse: The NRC believes that the provisions of the rule are adequate to 1 avoid the situation cited by the commenter. The rule specifies the types of assay techniques which am suitable for initial and confirmatory testing of urine, blood, and breath  :

specimens. For the purposes of this part, the NRC Guidelines for nuclear power plant drug and r.lcohol testing programs requim licensees to use an immunoassay for the initial screening which satisfies the requirement of the Food and Drug Administration for commercial distribution. Tests for alcohol must be administered with devices meeting j evidential standards established by the National Highway Traffic Safety Administration.

The NRC Guidelines specify the minimum cutoff levels to be used when screening specimens to determine whether the specimen is negative. To eliminate the possibility of initial false positive test results, all unne samples identified as positive on the screening test conducted by the licensee's testing facility or an HHS-certified laboratory shall be confirmed using gas chmmatography/ mass spectrometry (GC/MS) at the established cutoff levels in the NRC Guidelines for each drug, or at more stringent cutofflevels established by the licensee. See: NRC Guidelines, Section 2.7.

9.1.3 Comment

Two commenters claimed that low cutoff levels set by licensees could generate a high rate of false positive test results and that if the NRC was really concemed with impairment, they would use " reasonable" cutofflevels. One commenter asserted that testing laboratories in general have false positive rates of 30 percent and that cutofflevels must be set well above the minimum detectable level to prevent such high rates. (12tter Numbers: 1; 3)

Resoonse: The NRC has reviewed the scientific literature pertaining to the i reliability of drug testing at various cutofflevels and is confident that the cutoff levels  !

selected provide more than adequate protection against false positives--particularly given the requirement for a confirmatory test. Recent performance evaluations of HHS-certified labs have indicated virtually no problems with false positives. The fitness-for-duty pmgram seeks to deter and detect drug use, and is not concerned with associating a particular cutoff level with current impairment.

9.1.4 )

Comment: A few commenters suggested that errors in testing can occur because of specimen mishandling outside of the laboratory. Another commenter suggested that errors can be caused by specimen mishandling inside the laboratory through sample 9-2

J mixups, incorrect test result readings, and laboratory equipment failures. (12tter Numbers:

3;286;350)

Res mnse: To maintain the highest standard of quality and reliability, licensees are requimt by the rule to adhere to the NRC Guidelines for the collection, shipment, and accession of urine or blood samples. The rule specifies that blind performance testing of the laboratories shall be performed. Thus, the NRC believes that it has ta'ften reasonable precautions to assure that any errors will be extremely rare, and that these errors will be detected and rectified and has, in addition, mquired review by a , qualified Medical Review Officer before results are declared positive. See: NRC Guidelmes, Sections 2.2 and 2.8.

9.1.5 Comment

One commenter suggested that licensees use only accredited testing l laboratories to perform drug screening and that the NRC authorize HHS-certified laboratories to test according to NRC and licensee requirements. (Ixtter Number: 272)

Response: The NRC has revised the rule to allow HHS-certified laboratories to conduct drug tests consistent with NRC and licensee requirements. Licensees may choose to submit urine specimens for initial and confirmatory screening to an HHS-certified laboratory, or perform initial screening tests of urine samples with an on-site testing facility. Following preliminary screening, licensee testing facilities are required to submit all positive specimens and a sample of negative specimens to an HHS-certified laboratory for a second (screening) test and confirmatory testing. To ensure that licensee programs meet the highest standartis, the NRC Guidelines for alcohol and drug testing programs adopt procedural safeguards similar to those presented in the HHS Guidelines, and apply as a mmimum standarti to all licensee drug and alcohol testing programs.

9.1.6 Comment

One commenter stated that in order to assure that the testing 3rocedure is not subvened, personnelin the testing program should be prohibited from 1aving relatives who work at the site. (Letter Number: 19) l Response: The NRC requires licensees to select persons responsible for 1 administering the testing program based upon the highest standartis for honesty and integrity and to implement measures to ensure that these standards are maintained. These measures shall ensure that the integrity of such persons is not compromised due to personal relationships with any individuals subject to testing. Thus, the NRC believes the mle j addresses the commenter's concern. See: NRC Guidelines, Section 2.3. '

9,1.7 Comment: One commenter noted the imponance of chain-of-custody and documented laboratory procedures for protecting the licensee from litigation. The commenter expected a number of challenges to the drug testing provisions of the rule based on chain-of-custody concerns and positive tests resulting from legal drugs and food.

(LetterNumber: 376)

Responsg: The NRC concurs with the commenter that rigorous chain-of-custody and laboratory procedures are necessary for licensee programs to withstand legal challenges and to protect workers from the consequences of false positives. For these reaso: s, the NRC Guidelines require licensees and laboratories to meet the highest standards in their chemical testing programs. For a discussion of cutoff levels; true 9-3

positives due to the use of legal substances and consumption of foods; and chain-of-custody and laboratory procedures see: NUREG/CR-5227, Chapter 5; NUREG/CR-5227, Supplement 1, Chapters 2,4,5, and 6.

9.1.8 Comment

Several commenters recommended adherence to chain-of-custody procedures in general while two other commenters specifically recommended those chain-of-custody procedures outlined in the HHS Guidelines. One commenter suggested that chain-of-custody procedures be followed both at the site and in the laboratory. (letter Numbers: 263; 272; 275; 281; 326; 370. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC has developed guidelines for alcohol and drug testing chain-of-custody procedums for the licensee collection site, testing facility, and HHS-certified laboratory. These guidelines expand upon the procedural safeguards presented in the HHS Guidelines and recommended by these commenters. ,

9.1.9 Comment

One commenter stated that access should not be denied based on an initial screening test, if the test is conducted on site, since there is such a high rate of false positives. (LetterNumber: 339)

Response: This rule establishes a minimum level of stringency for denial of access in the case of confirmed positive drug tests. It does not pmhibit licensees from taking more stringent ac+ ions when circumstances make such actions appear to be the prudent course to tak. m protect safe nuclear operations. However, the rule does restrict access to information conceming a positive initial screening test, and so denial of access at this stage must be based on otherinformation.

9.1.10 Comment: Two commenters suggested that all medical personnel involved in any aspect of the drug testing process or procedure should adhere to the American Occupational Medical Association's Code of Ethical Conduct for Physicians Providing Occupational Medical Services which was adopted by the Board of Directors of AOMA on July 23,1976, and also the AOMA Dmg Screening in the Workplace Ethical Guidelines which were adopted on July 26,1986. (letter Numbers: 310;370)

Resoonse: The NRC expects professionals to conduct themselves in a manner that is ethically consistent with the provisions of the rule and sees no need to adopt further codes of conduct at this time. Further, the NRC Guidelines allow for periodic checks on quality in the chemical testing process. See: NRC Guidelines, Sections 22 and 2.3.

9.1.11 Comment: One commenter suggested changing the wording of Section 26.71(b) as follows: replace the phrase "which are concurred in by the Medical Review Officer and subsequent" with the phrase "and related." (Letter Number: 330)

Response: The NRC is satisfied with the wording in Section 26.71(b) and does not contemplate any change. The NRC wishes to stress the central role of the Medical Review Officer in confirming drug test results.

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9.2 Other Sources of Errors Commenters expressed concern about other possiNe soumes of ermr in urinalysis testing related to assay sensitivity, such as cmss-reacting substances, passive inhalation of marijuana smoke, and true positive results due to the licit use of substances.

9.2.1 (

Comment: One commenter contended that the EMIT 100 test used in initial screening generates a high rate of false negative test results. (Letter Number: 370)

Response: The NRC agrees that an initial immunoassay screening cutoff level for marijuana at 100 ng/ml may result in a number of false negative te::t results. Recent and past use of marijuana has been shown to result in urinary metabolite concentrations that are well above detectaHe limits, yet remain at levels below 100 ng/ml for several days or longer. In addition,immunoassay screening techniques are available that can provide sensitive (eliable, and practical results at lower cutofflevels. Industry experience described by licensee commenters also indicates that a significant proportion of individuals I have tested positive at cutofflevels lower than 100 ng/ml. However, the NRC has chosen cutofflevels based on policy as well as technical considerations while preserving the option for licensees to test at low cutofflevels. The NRC will continue to consider lowering cutofflevels, consistent with technology and Federal policy. See NUREG/CR-5227, Supplement 1, Chapter 6.

9.2.2-Comment: A few commenters stated that positive test results for opiates can be generated by the consumption of poppy seeds and by the use of over-the-counter drugs.

(Letter Numbers: 275; 326; 342. See also subsections 3.5.23 and 3.5.24.)

Response: Although the NRC agrees that the consumption of poppy seeds and the use of over-the-counter drugs may result in positive initial test results for opiates, a confirmatory assay using gas spectrometry / mass spectrometry (GC/MS) can distinguish poppy seed use from heroin use. In the case of confirmed true positive results due to use of over-the-counter medications which contain opiates, NRC Guidelines for nuclear power plant drug and alcohol testing programs require a Medical Review Officer to determine whether there is clinical evidence of unauthorized use, and to inquire into the individual's use of these medications. Further, the cutofflevels set for opiates is sufficiently high to eliminate the possibility of a true positive test result from normal use of over-the-counter preparations. See: NUREG/CR-5227, Chapter 5; NUREG/CR-5227, Supplement 1, Chapter 4; NRC Guidelines, Section 2.9; FRN, Supplementary Information, Section 6.2. I

9.2.3 Comment

One commenter suggested that passive inhalation of marijuana can genente a misleading positive test. (Letter Number: 3)

Response: Passive or involuntary inhalation of marijuana smoke may produce ,

detectable levels of marijuana metabolites after prolonged exposure to a high concentration I of smoke in a laboratory setting. In its 1986 report to Congress " Drug Abuse and Drug i Abuse Research," the National Institute for Drug Abuse (NIDA) states: "The possibility  !

that a positive test was due to passive inhalation is rare when the cutoff point is kept at 20 ng/ml or above." The Medical Review Officer would need to assess the credibility of such claims. In addition, trustworthiness and reliability questions are raised for persons 9-5

exposing themselves to such an environment, panicularly immediately prior to scheduled work. See: NUREG/CR-5227, Chapter 5; FRN, Supplementary Information, Section 6.

9.2.4 Comment

A few commenten stated that false positive test results can be generated from cross-reactivity among drugs due to the following: use of prescription medicines; use of non-prescription medicines; diet; or the use of ibuprofin. One of these commentes noted that confirmatory test procedures help prevent such occurrences.

Another of the commenters stated that chromatography analysis could be used in the initial screening to prevent such false positive test results, but thought that chromatography analysis is too expensive to use for initial screening. (Letter Numbers: 3: 342. Meeting Comments: M-1.19, M-1.34.)

Resnonse: The NRC recognizes that initial immunoassay screening techniques may infrequently result in false positive test results due to cross-reactivity. In the case of cross-reactivity due to ibuprofin, this is no longer a problem with current immunoassay techniques. In order to eliminate the possibility of false positive results due to the presence in urine of other potential cross-reactmg substances, the NRC requires that all presumptive positive initial :est results are confirmed by a suitable alternative assay technigue, e.g., gas chromatography / mass spectrometry (GC/MS). In particular, the NRC Guidelmes explicitly include the GC/MS test for 6-monoacetylomorphine (MAM) in the testing profile if the immunoassay screen is positive for morphine, in order to reduce false positives. See:

NUREG/CR-5227, Chapter 5; NRC Guidelines, Section 2.7.

9.2.5 Comment

One commenter stated that the pharmacokinetics of marijuana metabolism / excretion prevent correlating urinary metabolite concentration levels with levels ofintoxication. (Meeting Comment: M-1.33)

Resnonse: The NRC agrees that the rate of excretion of marijuana metabolites will vary in a manner that makes it impossible to establish a direct mlationship between :he level of metabolite excreted and the level of impairment or intoxication. Levels of metabolites in an individual's urine cannot be used to establish a level of impairment or a level of dmg use. However, the NRC does not believe that this variation leads to false positive test results when the intent of the test is to establish recent drug use rather than to attempt to quantify the leul of that use, or to determine a level of impairment.

9.3 Alternatives to Urinaivsis Commenters raised several issues regarding possible alternatives to urinalysis. Several commenters questioned whether suitable alternatives to urinalysis exist, or recommended alternatives to urinalysis. These recommended altematives included behavioral observation techniques to detect impaired workers, education and awareness, and the analysis of other specimens such as hair.

9.3.1 Comment

One licensee commented that hair analysis is useful for determining if people remain drug-free during and following treatment. (Letter Number: 329) 1 B;sponse Hair analysis has not been validated extensively enough in clinical studies to make an adequate assessment of its suitability for general drug screening. As 9-6

f more research becomes available regarding the reliability and validity of this technique, the NRC may consider hair analysis as an attemative to urinalysis. Licensees are not wohibited from using other testing methods during a treatment program. See:

NUREG/CR-5227, Chapter 5.

9.3.2 Comment: Several commenters stated that behavioral observation techniques are an adequate means of detecting and deterring fitness-for-duty problems. Therefore, the intrusive methods of urinalysis testing are unnecessary and unwarranted. Several of these commenters cite drug effects that would result in impaired workers being easily detected through observation. (Letter Numbers: 5;16;229;251;271;285;325; 336;340)

Response: The NRC strongly believes that the training of supervisory and managerial personnel in behavioral observation techniques will provide licensees with a valuable tool for the detection and deterrence of drug- and alcohol-related impairment and for the detection ofimpairment from other causes. However, as stated in the NRC's proposed rule, there are several disadvantages to relying on behavioral observation alone.

While an effective behavioral observation program is an important element of a fitness-for-duty pmgram,it is not an acceptable alternative to random testing. See: NUREG/CR-5227, Chapters 4 and 6; and NUREG/CR-5227, Supplement 1, Chapter 4.

9.3.3 Comment

Several commenters stated that neurophysiological and eye movement tests were effective alternatives to random chemical testing. (Letter Numbers:

295; 315;329; 370)

Response: After reviewing the literature regarding these altemative techniques, the NRC has concluded that while they may serve as useful supplements, they currently lack the reliability, sensitivity, and specificity of random chemical testing. See:

NUREG/CR-5227, Chapter 5; and NUREG/CR-5227, Supplement 1, Chapter 4.

9.3.4 Comment

Two commenters said that the fitness-for-duty policy at Rancho Seco offers accurate, meaningful detection of drug-related inipairment and thus constitutes a powerful deterrent. Rancho Seco's policy consists of unannounced, random medical examinations conducted by nurses specially trained in drug recognition. The examinations consist of medical history, personal past history, family history, physical examination, eye examination, general questions, and drug history. The commenters also indicated that unioris fully accept Rancho Seco's policy. (Letter Numbers: 295; 329)

Response: The NRC agrees that Rancho Seco has implemented a laudable fitness-for-duty program but is aware that observational technique as a drug detection device are not extremely reliable, even when employed by well-trained experts. For this

reason, random chemical testing is seen to be a necessary supplement to such a program.

See: NUREG/CR-5227, Supplement 1 Chapter 4.

9.3.5 Comment

Several commenters believect that the resources necessary for a random testing pmgram would be better devoted to education, prevention, family 9-7

l l

1 counseling, and strengthening the roles and expertise of personnel trained in behavioral observation. (LetterNumbers: 41; 233;265;293;.302; 370)

Resoonse: The NRC concurs with the commenter that the program components mentioned are important to achieve the goal of ensuring that nuclear power plant workers are fit for duty, and so has included requ'uements for employee education and awareness training, employee assistance programs, and behavioral observation programs in the rule. i The NRC does not believe that these program elements are sufficient to detect and deter substance abuse problems, however, and so has maintained a requirement for random .

testing. See: NUREG/CR-5227, Chapter 4.

9.3.6 Comment

One commenter was in favor of urinalysis, stating that even though it is intrusive, it is the most convenient form of dmg testing available. (Letter Number:

342)

Resoonse: This technique was not chosen for reasons of convenience. The NRC is primarily concemed with the effectiveness of methods of detection and deterrence.

9-8

I 1

i I

L 10.0 GUIDELINES FOR DRUG TESTING PROGRAMS

. Numerous commenters raised issues concerning the proposed use of the Department of Health and Human Services (HHS) Guidelines for Drug Testing Programs m the Workplace and questioned whether the HHS Guidelines were applicable to the nuclear power industry. Commenters recommended that the NRC adopt a uniform panel of drugs to be tested, or allow iicensees to determine the panel of drugs for which licensee testing facilities and HMS-certified laboratories can test. Commenters questioned the technical bases for detmaining the cutofflevels in the proposed rule. Commenters raised issues regarding the use of licensee testing facilities on site at nuclear power plant facilities, and the availability and use of HHS-certified laboratories. Commenters expressed concern about the final review of confirmed positive results prior to management action. Several commenters recommended that specimen samples should be split prior to testing. Other issues related to the adoption of guidelines for drug testing programs were also raised by commenters.

10.1 Aonlicability of HHS Guidelines to the Nuclear Power Industry A number of commenters questioned whether the HHS Guidelines for drug testing programs in the workplace should be applied to the nuclear power industry. Commenters also raised the issue of whether the NRC should adopt a standard set of nuclear power industry guidelines for drug testing programs or allow licenstes to develop their own drug testing program procedures.

10.1.1 Comment: Numerous commenters stated that the NRC should not adopt the Department of Health and Human Services (HHS) " Mandatory Guidelines for Federal Workplace Drug Testing Programs" in their entirety. The commenters indicated that no other source of guidance for urine testing provides as rigorous methods for ensuring chain-of-custody protection for urine specimens and laboratory quality control. However, commenters noted that the HHS Guidelines were developed for Federal agencies rather than nuclear power plant testing programs and so are inappropriate in several respects.

Commenters pointed out that the HHS Guidelines: (1) inappropriately limit the number of drugs for which testing can be performed; (2) prescribe cutoff levels for testing that are higher than those currently used in many industry programs; (3) refer to decisions by the Secretary of the Department of Health and Human Services that would be difficult for licensees to obtain; (4) discuss the Privacy Act and Public Law 100-71 which do not pertain to workers in privately-owned nuclear power plants; (5) may be changed by the DHHS in ways that conflict with the NRC's needs; and (6) do not allow licensees to perform initial screening tests. One commenter stated that the HHS Guidelines are oriented toward rehabilitation ofindividuals with positive test results rather than toward ensuring public health and safety. Another commenter noted that because the HHS Guidelines are not directly relevant to nuclear power plant programs, licensees would be required to interpret which aspects of the Guidelines apply to their fitness-for-duty programs, with the result that licensee programs and enforcement actions could differ significantly across the industry. The commenters proposed that the NRC should use the HHS Guidelines as a basis for developing NRC guidelines that are appropriate for the nuclear power industry.

(Letter Numbers: 19; 230;252;264;275:278;284;299;303;307; 317;319;326;339; 340;343;349;356;358;366;376. Meeting Comment: M-1.106. See also subsections 3.5.23 and 3.5.24.)

10-1

Resnonse: In response to the commenters concerns, the NRC has drafted its own Guidelines, published as an appendix to the final rule, which are an adaptation of the HHS Guidelines. These Guidelines address each of the issues raised by the commenters.

It should be noted that the drugs to be tested for and the appropriate cutofflevels established by the NRC Guidelines may be amended in the future in response to advances in technology, experience, or other factors.

10.1.2 Comment: Several commenters stated that all chemical testing should be conducted as required by the HHS Guidelines, and that the provisions of the HHS Guidelines should be adopted by the NRC in their entirety, as minimum standards. (letter Numbers: 267;269;281;310;375)

Resnonse: Because of numerous valid concerns raised about the HHS Guidelines as applied to the case of the nuclear power industry, the NRC lias decided to develop its own guidelines for chemical testing.

10.1.3 Comment: One commenter stated that an effective alternative to the " Mandatory Guidelines for Federai Workplace Drug Testing Programs" is the "AFbCIO Guide for Drug and Alcohol Testing on the Job." (Ietter Number: 308)

Resports.c: The NRC recognizes the commenter's concerns about random drug testing implicit in his commendation that the "AFL-CIO Guide for Drug and Alcohol Testing on the Job" be substituted for the NRC's random test program using the HHS Guidelines. However, the NRC is convinced that random testing is an essential part of an effective program and has retained this provision in the final rule. Further, the NRC has decided to publish its own guidelines to make them more directly applicable to the nuclear industry.

10.1.4 Comment: Two commenters stated that the NRC should not require licensees to follow the HHS Guidelines but should allow licensees to develop procedures that are similar to the Guidelines. One commenter suggested that the NRC rule requim the following program elements: (1) drug classes and cutofflevels; (2) quality control program including laboratory testing with blind samples; (3) chain-of-custody procedures; and (4) testirig msults review procedures involving a Medical Review Officer or a utility equivalent.

A second commenter suggested that licensees should be allowed to use any procedures that are at least as effective as those presented in the HHS Guidelines. (Letter Numbers: 278; 307)

Resocnse: Because the NRC is concemed with the integrity of the chemical testing aspects oflicensees' fitness-for-duty programs and intends to ensum that licensee programs meet the highest standards, NRC Guidelines have been developed that preserve and expand upon the procedural safeguards presented in the HHS Guidelines and mcommended by these commenters. Further, by developing requirements for licensee chemical testing programs, the NRC has emoved from lkensees the burden of l demonstrating that their chemical testing pocedures are at least as effective as those {

described in the HHS Guidelines. )

l 10-2

10.1.5 Comment: One commenter requested that the following words be added to Section 26.20(c): ". . . as stated in the ' Mandatory Guidelines for Federal Workplace Drug Testing Programs' issued by Health and Human Services (HHS)" to make it clear that the basis for the procedures referenced in that section is the HHS Guidelines. (Letter Number:

269)

Resoonse: Because the NRC has developed guidelines for drug and alcohol testing in nuclear power plants as the basis for these procedures, the suggested words have not been added to Section 26.20(c).

10.1.6 Comment: One commenter stated that because the rule requires conformity to l HHS Guidelinet, an additional requirement for written procedures to protect employees and the integrity of specimens is redundant and unnecessary. (1xtter Number: 300)

Resoonse: The NRC believes that a separate statement concerning the ,

protection of employees and the mtegrity of specimens is warranted, given the sigmficance i of the issue. Further, the NRC has decided to publish its own Guidelines for use in complying with the rule.

10.1.7 Comment: A few commenters indicated that, because standardization was beneficial, the NRC should establish testing standards rather than leaving those standards to the discretion of the licensees. (Letter Numbers: 58; 273;297)

Resoonse: The NRC agrees that standardization of procedures and specifying minimum standards for cutofflevels are important and has published NRC Guidelines as an appendix to the rule to achieve these ends.

10.2 Limitations in the Panel of Drues for Testine Commenters questioned the basis for determining the panel of drugs for which licensee testing facilities and HHS-certified laboratories can test. Specifically, a number of commenters questioned whether this determination should be based on the prevalence of the specific drug in the licensee's workplace, the local community, or upon HHS standards. See also Section 6.0 on Other Causes of Impairment.

10.2.1 Comment: One commenter suggested that the panel of drugs for testing be modified based on industry experience, changes to testing techno!cgy, and the number of positives identified during random testing. (Letter Numbers: 275. See also subsections 3.5.23 and 3.5.24.)

Respang: The NRC concurs with the commenters that changes in technology and industry experience may warrant revisions to the panel of drugs for testing at some future point and has so noted in Sections 2.7(e)(2) and 2.7(f)(4) of the NRC Guidelines, published as an appendix to the rule.

10-3

l L

{

1 10.2.2 J

l Comment: One commenter stated that the NRC is attempting an overly broad drug testing regimen in the sense that it appears to be focusing on all the substances

)

referenced by the Controlled Substances Act. Instead, the list of drugs tested for should be limited to those known to affect ability to perform jobs. (Letter Number: 325)

Response: The NRC believes that the rule has focused on the major substances l of abuse with impairing potential, but notes that other drugs may be added in the future.

Sce: FRN, Supplementary Information, Section 10.2.2; NUREG/CR-5227, Chapter 2; NUREG/CR-5227, Supplement 1, Chapter 3.

1 10.2.3 Comment: A few commenters endorsed the drug testing schedule in 26.24(c) and agreed that other drugs prevalent in particular communities should be added to the schedule at the licensee's discretion. (Letter Numbers: 316;329;366)

]

Resoonse: The NRC concurs with these commenters regarding the panel of drugs required in the HHS Guidelines and the addition of substances to that panel at the licensee's discretion. However, the NRC is also concerned with the abuse of drugs in the l class of sedatives, and therefom, has requimd its staff to further investigate the need for testing for benzodiazepines and barbiturates.

10.2.4 Comment: Two commenters indicated that the requirement for licensees to consult local law enforcement authorities is superfluous because licensees already have established relations under their security plans. One commenter noted that local drug counseling services may not have patients who are representatives of the individuals workint e a naclear power plant. Thus, this requirement should not be part of the rule.

(Letter lumbers: 271;330)

Resnonse: In response to the commenters' concerns, the NRC has revised the rule language to allow for but not require consultation with local agencies to identify drugs ,

to add to the testing schedule. See: FRN, Supplementary Information, Section 13.2.2.

10.2.5 Comment: One commenter requested that the NRC rather than the licensee be msponsible for consulting with local authorities to identify drugs to add to the panel required in the HHS Guidelines and that the NRC set testing procedures for these substances. (Letter Number: 58)

Resnonse: The NRC believes that licensees are best qualified to identify the appropriate law enforcement agencies and drug counseling services with whom to consult regarding local substance abuse patterns. Based upon industry experience, however, the NRC may conduct periodic reviews of the minimum drug panel specified by the rule and revise it. The NRC concurs that testing procedures for these substances are of significant concern, and se has revised the rule to require that licensees follow the same rigorous testing procedures for the additional substances as followed for those required in the minimum panel.

10-4

! l0.2.6

!' Comment: A few commenters noted that the list of drugs that are tested for should be modified as experience is gained, saying that it makes little economic sense to test for drugs that are generating few,if any, positives. (Letter Numbers: 275;326;376.

See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC may revise the panel of drugs for which testing is required based upon such factors as new research findings, industry experience, advances in technology, or other similar factors.

10.2.7 Comment: Several commenters objected to the requirement that licensees consult with locallaw enforcement agencies and drug counseling services to identify additional drugs for testing. They recommended that the five classes of drugs in the HHS Guidelines should be the only drugs included in the NRC's panel. Reasons included: (1) maintenance of uniformity among licensees; (2) the HHS Guidelines panel is sufficient in scope; (3) testing for additional drugs may result in legal challenges; and (4) no testing methods are recognized in the HHS Guidelines for testing additional drugs. (Letter Numbers: 252;271; 300;309;354;359;370;371)

Resoonse: The NRC believes that patterns of substance abuse vary among geographical areas and that it is important to public health and safety for licensee programs to detect and deter abuse of these additional substances, even at the risk of reducing uniformity among licensee programs. The NRC also believes that licensees are best qualified to identify the appropriate law enforcement agencies and drug counseling services with whom to consult regarding local substance abuse patterns but recognizes that such consultation may not 31 ways be possible. Consequently, the rule has been revised to encourage, but not require, such consultation. Specific enabling language was maintained in the rule. The NRC concurs that testing procedun:s for these substances are of significant concem, and so has revised the rule to require that licensees follow the same rigorous testing procedures for the additional substances as followed for those required in the minimum panel. See: FRN, Supplementary Information, Section 13.2.2.

10.2.8 Comment: Two commenters at the public meeting stated that the guidance given to licensees about identifying additional substances for testing, based on consultation with local law enforcement authorities and drug counseling services, is too vague to implement and should be cladfied. (Meeting Comments: M-1.95, M-1.105)

Resnonse: The NRC has provided clarifying language in the final rule in Section 26.24(c). See: FRN, Supplementary Information, Section 13.2.2.

10.2.9 Comment: One commenter stated that information collected from local law enforcement authorities and drug counseling services regarding drug activity in the local community is accomplished through the licensce's Employee Assistance Program (EAP).

(LetterNumber: 298)

Resnonse: The NRC recognizes the initiative of the licensee in integrating information from loed .gncies into the fitness for duty program.

10-5

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10.3 Cutoff Levels Defined for Screenine and Confirmatory Tests i Several issues were raised by commenters regarding the proposed cutoff levels for screening and confirmatory tests. A number of commenters questioned the technical bases of the cutofflevels and raised other issues related to determinmg the cutofflevels in the  ;

3roposed rule. Commenters also raised the issue of whether the determination of cutoff l

evels should be based on the HHS Guidelines, nuclear power industry standards, or  !

licensee standards which would allow the adoption of more stringent cutofflevels than j thosein the proposed rule. 1 10.3.1 1 I

Comment: A number of commenters indicated that licensees should not set {

different cutofflevels than those required by the NRC's rule. Some of these commenters noted that one of the NRC's reasons for rulemaking is that licensee pmgranis do not currently have uniform cutofflevels. The commenters stated that allowing licensees to set their own, lower cutoff levels would exacerbate the inconsistencies between pmgrams and would make licensees with lower levels subject to legal challenges and labor disputes. The commenters also indicated that requiring uniform cutofflevels would have the advantage of creating a data base for meaningful comparisons across the nuclear power industry.

However, some of these commenters thought that some of the NRC's proposed cutoff levels were too high. (Letter Numbers: 32;223;252; 260;273; 275;279;309;316;326; 329;330;343;352;354;359;366. Meeting Comment: M-1.99. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC believes that the rule will lead to standardized industry practice in the key area of drug testing. Licensees will be allowed to add drugs to the testing list and lower the cutoff levels. However, results must be mcorded at both the licensee and the NRC cutofflevel. It should also be noted that NRC cutofflevels may be amended in the futum in responses to advances in technology, experience, and other factors.

10.3.2 Comment: A number of commenters suggested that the initial screening and confirmatory cutofflevels for marijuana are too high. These responders noted that:

(1) drug testing technology is sufficiently accurate to allow testing at lower levels without increasing the probability of false positives (including the identification ofindividuals who have passively inhaled marijuana smoke); (2) most licensee programs currently use lower cutofflevels for marijuana and may be open to litigation if the NRC rule requires higher cutoff levels; and (3) industry experience indicates that the higher cutofflevels specified in the pmposed rule will result in failing to detect significant numbers of marijuana users.

Many commenters suggested that 50 ng/ml is a more appropriate screening cutoff level than the currently proposed 100 ng/ml. (Letter Numbers: 8; 231; 303; 319; 319;326; 330; 339;343;355;358; 376. Meeting Comments: M-1.89; M-1.90.)

Remonse: The NRC has considered both the policy aspects of departing from HHS guidelines as well as the technical considerations which favor lower cutofflevels in reaching a final decision in this matter. See: FRN, Supplementary Information, Section 13.2.3; NUREG/CR-5227, Chapter 5; NUREG/CR-5227, Supplement 1, Chapter 6.

10-6

L 10.3.3 Comment: Several commenters indicated that the cutoff levels prescribed in the HHS Guidelines are, in general, too high to achieve a drug free workplace in the nuclear power industry. Most of the commenters who discussed specific drugs suggested that the mitial screen and confirmatory levels should be decreased for marijuana, cocaine -

metabolites. a%-r ghetamines. Cutofflevels suggested for cocaine metabolites were as low as 50 ng/mi for the initial screening test and 50 ng/ml for the GC/MS confirmatory test.

Cutofflevels suggested for amphetamines on both the initial screen and confirmatory tests were as low as 300 ng/ml. Cutoff levels for marijuana were geaerally suggested at 50 ng/ml (see subsection 10.3.2) (Letter Numbers: 230;272;275;284; 299; 316;326;327; 329;343;366; 371;376. Meeting Comments: M-1.92; M-1.96. See also subsections 3.5.23 and 3.5.24.)

Response: . The NRC has considered both the policy aspects of departing from HHS guideline ; as well as the technical considerations which favor lower cutoff levels in reaching a final decision in this matter. See: FRN, Supplementary Information, Section 13.2.3; NUREG/CR-5227, Supplement 1, Chapter 6.

10.3.4 Comment: One commenter asked that if licensees adopt more rigomus -

st. urds reflected in lower cutoff levels, would HHS-certified laboratories be able to rescreen specimens at the lower cutoff levels? (Meeting Comment: M-1.69)

Response: The NRC Guidelines specifically enable HHS-certified laboratories to rescreen specimens that test positive at the licensee's lower cutoff levels.

10.3.5 Comment: One commenter opposed random testing but recommended that the following minimum cutofflevels be used for other forms of testing: amphetamines'-

(dextro-amphetamines, methamphetamine and phentermine), between 3 and 10 micrograms per mil; barbiturates (secobarbital, amobarbital, butabarbital, pentobarbital, phenobarbital),

between 20 and 60 micmgrams per mil; benzodiazepines (diazepam, desmethyldiazepam, chlordiazepoxide, oxazepam), between 10 and 30 micrograms per mil; benzoylecogonine, between 6 and 60 micrograms per mil; cannabinoids, between 100 and 150 nanograms per mil; methadone,3 to 10 micrograms per mil; methaqualone,50 micrograms per mil; opiates and morphine,3 miemgrams per mil; codeine,10 micrograms per mil; phencyclidine, between 0.6 and 6 micrograms per mil. (letter Number: 263)

Response: The NRC recognizes the commenter's concern over random testing.

However, the NRC is strongly of the opinion that random testing is an essential component of an effective fitness-for-duty program. The proposed minimum cutofflevels are consistent with the NRC's cutofflevels in many cases.

10.3.6 Comment: A few commenters stated explicitly that the cutoff levels identified in the HHS Guidelines are acceptable. (Letter Numbers: 271;298;370. Meeting Comment:

M- 1.98.)

Response: The NRC has considered both the policy aspects of departing from  ;

HilS guidelines as well as the technical considerations which favor lower cutoff levels in 1 10-7 Y

reaching a final decision in this matter. See: FRN, Supplementary Information, Section 13.2.3; NUREG/CR-5227, Supplement 1, Chapter 6.

10.3.7 Comment: A few commenters stated that cutoff levels for marijuana should be consistent with the cutoff levels used in military testing programs and set at 100 ng/ml.

(Letter Numbers: 32; 260;352) 1 1

Resnonse: The NRC has considered both the policy aspects of departing from HHS guidelines and the technical considerations which favor lower cutoff levels in reaching a final decision in this matter. The NRC has dxided to adopt the 100 ng/ml cutoff ) '

level while continuing to monitor technological advances and policy consideration. See:

FRN, Supplementary Information, Section 13.2.3; NUREG/CR-5227, Chapter 5; NUREG/CR-5227, Supplement 1, Chapter 6. ,

10.3.8 I Comment: Two commenters suggested that adowing licensees to set cutoff levels for drugs that are identified through contacts with local law enfomement agencies and drug treatment programs would result in inconsistencies among licensee programs and,  ;

perhaps, in cutofflevels that are too high. Other aspects of the provision are unclear, such as the frequency of consultation with local agencies. One commenter suggested that the NRC set cutofflevels for dmgs identified through these means. (Letter Numbers: 330; 377)

Responsg: The NRC has decided to change the rule to reflect the commenters' concerns. The rule has been changed 30 that licensees are allowed to consult with local agencies but are not required to do so. See: FRN, Supplementary Information, Section 13.2.2.

10.3.9 Comment: Two commenters suggested that the wording of Section 26.24(b) more strongly support licensees' righi to implement lower cutoff levels than those required in the HHS Guidelines. (Letter Numbers: 284; 313)

Response: The NRC believes that the current wonling on this point is clear.

Licensees do have the option of applying more stringent cutofflevels. See: FRN, Supplementary Information, Section 13.2.3.

10.3.10 Comment: One commenter at the public meeting asked if licensees would be  ;

allowed to set cutoff levels that are more stringent or more liberal than those set in the HHS Guidelines. (Meeting Comment: M-1.64)

Resnonse: Licensees are allowed to set cutoff levels that are more stringent (i.e., lower) than those specified in the NRC Guidelines.

10.3.11 Comment: One commenter asked whether changes to drug testing technology and the accumulation of experience with drug testing in the nuclear power industry would (

10-8

)

I result in future changes to the cutofflevels set in the HHS Guidelines. (Meeting Comment: M-1.38)

Enponse: The NRC believes that changes in technology andindustry p experience may warrant revisions to the cutofflevels at some future point and has so noted in Section 2.7(e)(2) of the NRC Guidelines.

10.3.12 Comment: One commenter proposed deleting reference to the HHS Guidelines and recommended that the NRC publish its own guidelines, including more conservative cutofflimits and the addition of barbiturates, benzodiazepines, and methaqualone to the drug testing schedule. (Letter Number: 278)

Resnonse: The NRC concurs in part with the recommendations of this commenter and has published its own testing program guidelines. The Commission has decided not to require testing for any legal drugs other than alcohol at this time. However, 4 the Commission has directed the staff to continue to study the issue ofincluding particular i legal drugs in the panel of drugs to be tested. )

I 10.3.13 Comment: One commenter stated that the basis for the decision to set a particular cutofflevel is arbitrary only if the level is set below the point at which there is evidence ofimpairment. (Meeting Comments: M-1.9,M-1.10,M-1.11)

Resnonse: The NRC believes that worker reliability and trustworthiness are also legitimate concems of the rule. Also, the relationship between impairment and level of drug or drug metabolite in the urine is highly variable. Thus, the establishment of cutoff levels at or above levels ofimpairment is neither feasible nor essential. See: FRN, Supplementary Information, Section 3.2; NUREG/CR-5227, Chapter 5.

10.3.14 ,

Comment: Two commenters requested that the definition of positive test be a I test confirmed by the GC/MS as required by the HHS Guidelines. One of the commenters  !

I stressed that this should be a full spectrum GC/MS. (Letter Numbers: 329;370) l l

Resoonse: The NRC agrees with the intent of these commenters. The I definition of" confirmatory test" in the NRC Guidelines states that GC/MS currently is the '

only authorized confirmation method, although the commenters should note that the

! identification of a " confirmed positive test" requires a determination by the Medical Review  !

l Officer. j 10.3.15 Comment: One commenter suggested that a statement should be added to Section 26.24(b) to indicate that any individual who tests negative on the panel of drugs identified in the HHS Guidelines and negative for any additional substances identified by the licensee's program meets the " drug free" requirements of Part 26. (Letter Number- 1

58) l Resnonse: Based upon reviews of the available scientific and technical literature and discussions with experts, the NRC has concluded that negative test results cannot 10-9

indicate that an individual is " drug free." Results of urinalyses for drugs and breath or blood tests for alcohol indicate only that the individual had not used the substances for which testing was conducted within the time spans that the tests can detect such use at the specified cutofflevels. Consequently, the NRC considers inclusion of the proposed wording in the rule to be inappropriate. See: NUREG/CR-5227, Chapter 5.

10.3.16 Comment: One commenter stated that the rule should clearly state than an

, individual is considered drug free until the confirmatory test indicates odierwise. (Letter Number: 290)

Resnonse: The NRC agrees with this commenter that nuclear power plant worken with unescorted access should not be subject to suspicion or sanctions until GC/MS testing has confirmed drug use. The rule protects workers from any such suspicion or sanctions by mquiring that a Medical Review Officer review the test results and evaluate various alternative explanations for positive results of confirmatory testing.

Because of the strong safeguards of workers' rights incorporated into the rule and the NRC Guidelines, the NRC does not agree that such a statement is necessary.

10.4 On-Site Testine Facilities Several commenters raised issues related to the development and implementation of an on-site testing facility.

10.4.1 Comment: Several commenters stated that employers should not be allowed to conduct preliminary tests. Such preliminary testing is unlikely to comply with tbc strict safeguards and procedures outlined in the HHS Guidelines, and could result in high rates ofinaccurate msults and charges of unfaimess. Only outside, accredited laboratories should be used. (letter Numbers: 7;8;251; 267; 273)

Eesconse: The NRC is sensitive to the concerns expressed by these commenters and has developed rigorous quality requirements for conducting preliminary screening tests conducted by licensees. These requirements include initial and on-going assessments of the tmstworthiness and reliability of chemical testing program personnel, strict chain-of-custody procedures, the development of and compliance with written procedures goveming tl.: testing program, blind performance testing for false negatives, the submittal of all specimens that screen presumptive positive and a sampling of those that screen negative to the HHS-certised laboratory for ew:luation (that is, a second screening test and confirmatory testing), annt al audits of the fitness-for-duty program by qualified and objective auditors, protection of the collection site and testing facility from unauthorized intrusions, and the safeguarding of all unconfirmed positive test results and personal medicalinformation gathemd as a result of the program. The NRC believes that I compliance with these and other quality requirements in the rule and in the NRC Guidelines I

will ensure the integrity oflicensees' preliminary screening tests. In addition, the experience of licensees who are currently conducting chemical tests of workers suggests that licensee testing facilities can be operated reliably.

10.4.2 Comment: A few commenters stated that licensees conducting on-site testing should be allowed to send positive samples directly to a laboratory for confirmation testing 10-10

V l

and that no additional screening test by the laboratory should be required. (Ixtter Numbers: 275; 326;343. See also subsections 3.5.23 and 3.5.24.) l Resoonse: The NRC is highly concemed with minimizing the possibility of false positive test results and considers the second screening test of specimens first tested by licensees' testing facilities to be an appropriate safeguard to ensum the accuracy and ,

reliability of the chemical testing process. '

10.4.3 Comment: Two commenters stated that a utility should be allowed to establish its own laboratory with its own intemal quality control procedures for both initial and confirmatory tests. This may be economical for utilities with large facilities as laboratory equipment costs come down. (Letter Number: 252. Meeting Coinment: M-1.112.)

Resoonse: The NRC would not prohibit this strategy so long as the licensee's laboratory is IlliS-certified. See: FRN, Supplementary Information, Section 13.2.4.

I 10.4.4 )

Comment: One commenter described the advantages of on-site screening. The advantages mentioned include: (1) reliable and accurate testing; (2) reduced skill levels required of testing personnel; (3) decreased time to obtain results, particularly to obtain negative results; (4) greater control in handling and preserving specimens; (5) decreased reliance on outside laboratories causing increased confidentiality; (6) increased method control; and (7) better chain-of-custody procedures because fewer specimens have to be transferred to a testing laboratory. (Meeting Comment: M-1.65)

Response: The NRC concurs with this commenter's discussion of the advantages of preliminary screerdng tests conducted by licensees. j 10.4.5 Comment: Two commenters stated that allowing licensees to conduct pmliminary tests on-site is problematic and creates additional costs, requimments, and complexity. (LetterNumbers: 329;356)

Resoonse: The NRC leaves to the licensees the decision as to whether the benefits of performing initial screening tests outweigh the costs and other problems associated with maintaining a licensee testing facility.

10.4.6 Comment: One commenter stated that on-site testing to identify presumptive positives could be effective. Positive specimens should be submitted to qualified contract laboratories following full chain-of custody procedures and lillS Guidelines. (letter Number: 319)

Resoonse: The rule, as written,is consistent with the comment. See: FRN, Supplementary Information, Section 13.2.4.

10-11

10.4.7 Comment: One commenter at the public meeting asked ifit is the NRC's intent i that licensees and their contractors comply with the blind sample proficiency testing

. requirements of the HHS Guidelines. (Meeting Comment: M-1.2)

Resoonse: The procedures in the NRC Guidelines on this point are equivalent to those in the HHS Guidehnes and am required for samples sent to HHS laboratories.

See: FRN, Supplemental Information, Section 13.2.6.

10.4.8 Comment: One commenter noted the negative impact on utility personnel of involvement with preparing false documents to submit blind performance Nst samples to contract laboratories and suggested that licensee testing program personnel who prepare these samples and documents be different individuals from those involved in handling  ;

nuclear power plant workers' specimens. (Letter Number: 354) '

Resoonse: The NRC does not share the commenter's concern with a possible negative impact of blind performance testing on licensee chemical testing program personnel, and feels that such personnel will recognize the requirements for blind performance testing as proper laboratory procedure.

10.4.9 Comment: One commenter mquested guidance on the training and credential requirements for individuals performing on-site testing. (Meeting Comment: M-1.66)

Resoonse: The NRC expects that the training and credentials of the people involved in conducting licensee preliminary screemng tests will be adequate for the tasks to which they are assigned. In many cases, the people pe,rforming the tests will be trained and certified by the manufacturers of the testing kits or equipment. Licensees are expected to '

conduct independent evaluations of the knowledge and skills of their testing personnel to  !

ensure that they have successfully completed training and are qualified to perform the tests. l

.I 10.4.10 Comment: One commenter requested clarification on the acceptability of on-site testi ng and its consistency with the HHS Guidelines. (Meeting Comment: M-1.110)  !

Resnonse: Clarification can be found in the FRN, Supplementary Information, Sections 13.2.1 and 13.2.4.

10.4.11 Comment: One commenter requested clarification on who will perform the i urine tests, the licensee or an outside source. (Letter Number: 35)

Resoonse: The rule allows licensees to perform preliminary screening tests.

Any specimen that tests presumptive positive on the pmliminary screen is forwarded to an )

HHS-certified laboratory for a second semening test and, if it screens positive, for '

confirmatory testing.  !

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10-12 i

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10.5 HHS-Certified Laboratories Several commenters raised issues related to the proposed use of HHS-certified laboratories.

Commenters questioned the availability of HHS-certified laboratories to perform drug tests.

Commenters questioned whether the individual licensee or the NRC is responsible for assuring the proficiency of such laboratories that perform the tests. Commenters also questioned whether other accredited laboratories satisfied the requirements of the proposed rule.

10.5.1 Comment: A few commenters indicated that the College of American Pathologists (CAP) has implemented a Forensic Urine Drug Testing (FUDT) program to certify laboratories that are engaged in chemical testing. The CAP FUDT program is described by these commenters as equally rigorous as the HHS cenification program, but to be bet'er suited to licensees' needs for the following reasons: (1) the CAP FUDT program provides an educational component for laboratories; (2) it had accredited 25 laboratones as of October 11,1988, whereas NIDA had accredited none; (3) the CAP FUDT program allows laboratories to test for additional drugs and at other cutoff levels than those specified in the HHS Guidelines; (4) the CAP FUDT program does not require approval from the HHS Secmtary to deviate from the HHS Guidelines; (5) the program was designed to specifically meet the needs ofindustry rather than Federal agencies; and (6) CAP FUDT accreditation is less expensive for laboratories, with the result that more laboratories will be available and will provide testing services at a lower cost than HHS-certified laboratories. (Letter Numbers: 7; 8; 355)

Resoonse: The NRC has published revised Guidelines to address many of the concerns raised by the commenters. After impartial experts compared the recommended programs to the HHS standards, the NRC concluded that the rigor required for HHS certification is unmatched and has themfom retained the requirement for HHS certification.

See: FRN, Supplementary Information, Section 13.2.6.

10.5.2

~

Comment: Several commenters suggested that the HHS requirements for blind sample performance testing be eliminated or mduced for licensee testing facilities. One noted the large costs and difficulties associated with buying and submitting blind samples and staffing to perform blind performance specimen testing. One also stated that all regulated laboratories are required under other programs (e.g., the CAP FUDT program, state programs) to process blmd samples and that the requirement for licensees to do so is redundant and unnecessary. One commenter suggested that a portion of all preliminary tests be sent to a certified lab for confirmation. (letter Numbers: 252; 271:330;356.

Meeting Comment: M-1.67.)

Resoonse: The NRC agrees that blind performance testing to monitor the rate of false positives is unnecessary for licensee testing facilities. It is not clear, however, whether licensee testing facilities will be regulated as laboratories by state regulations or whether licensees will seek alternative certifications for their testing facilities. Further, the NRC is concemed with minimizing the rate of false negative tests at licensee testing facilities. Consequently, the NRC has concluded that some blind performance testing is necessary for licensee testing facilities and agrees with the commenter who recommended that a ponion of all preliminary tests that test negative be submitted to an IIHS-certified laboratory for analysis.

l 10-13 i

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z 10.5.3-Comment:. One commenter stated that the quality control requirements in the

- HHS Guidelines am excessive, given that reputable laboratories already follow adequate '

QC procedures. The commenter suggested that licensees' QA programs are sufficient to audit laboratories and described criteria for drug testing laboratories to meet. These criteria included provisions for a blind sample program, procedures for chain of custody, sample handling, training, use of equipment, QC, and records management. Thus, reference to the .

HHS Guidelines shou1 J be deleted. (Letter Number: 278)

Response: The NRC does not agme that the quality control requirements of the HHS Guidelines are excessive, that all laboratory quality control procedures are adequate, or that existing licensee quality assurance programs am sufficient to ensure the integnty and accuracy oflaboratory chemical testing programs. Consequently, the NRC has l incorporated the HHS Guidelines' quality control requirements into the NRC Guidehnes j and specifies in the rule that licensee quality assurance audits of HHS-certified laboratories d be performed by qualified individuals or organizations.

4 10.5.4 Comment: Two commenters stated that the requirement for licensees to use l HHS-certified laboratories is too restrictive, may reduce the availability of otherwise qualified laboratories, and may cause unnecessary economic and financial hardship on ,

hcensees in states that have stringent state laboratory certification programs such as the New York State program. (Letter Numbers: 347;356)

Response: . Because of the need to protect workers from false positive test -l results and the absence of clear evidence that alternative certification procedures provide equivalent rigor, the NRC has maintained the requirement for HHS certification of the a 4

testinglaboratories. See: FRN, Supplementary Information, Section 13.2.6.

10.5.5-Comment: A few commenters r uggested that the NRC specify that licensees are

.to use laboratories certified to the HHS Gaidelines to obviate the need for the NRC to establish an independent laboratory cert'fication pmgram. They also recommended that the

. final rule authorize such laboratones to conduct drug tests consistent with NRC and i licensee requirements. (Letter Numbers: 275;317;326. See also subsections 3.5.23 and 1 3.5.24.)

Resoonse: The NRC concurs with these commenters and has developed NRC i Guidelines and additionallangu, age in the rule to address these issues specifically. See:

FRN, Supplementary Information, Section 13.2.6.

10.5.6 Comment: One commenter asked for clarification of the NRC's intent with regard to the requirement in Section 2.5(d)(2) of the HHS Guidelines for licensees to submit blind performance test specimens during the first quarter of any new drug testing program. The commenter asked if this pertained to the licensee's program, or to a new laboratory. (Meeting Comment: M-1.3)

Resoonse: The NRC intends to assure that licensees' programs meet the strict

requirements of the rule. The NRC believes that this requires an elevated rate of blind 10-14

performance testing during the first quarter any time a new testing facility is employed.

Further, for their own protection, licensees may want to submit a high rate of blind performance tests any time there is a substantial change in the program. See: FRN, Supplementary Information, Section 13.2.6.

10.5.7 Comment: A few commenters expressed concem about the availability of HHS certified laboratories to conduct the required chemical testing. They noted that the unavailability of laboratories could result in delays in staffing nuclear power plants, particularly for contractor personnel who will be tested in large numbers prior to an outage.

Two commenters suggested that wording be added to the rule that allows licensees to contract with laboratories certified under other programs until there is a sufficient number of HHS-certified laboratories available to meet the demand. (Letter Numbers: 223;298; 316. Meeting Comment: M-1.1.)

Resnonse: The NRC has received assurances from the National Institute on Drug Abuse that sufficient laboratory capacity exists at HHS-certified laboratories to meet the demands of the rule. See: FRN, Supplementary Information, Section 13.2.6.

10.5.8 ,

i Comment: One commenter stated that there currently are no quality con Tols ir, place at drug testing laboratories because there is no independent agency in place to monitor the laboratories. (Letter Number: 315)

Response: The requirement that laboratories be HHS-certified addresses the commenter's concerns. See: FRN, Supplementary Information, Section 13.2.6.

10.5.9 Comment: One commenter stated that as long as licensees retain an HHS-certified laboratory for the confirmatory analysis, on-site preliminary testing should not be regulated or subject to QA requirements. Such regulations would discourage licensees from performing on-site testing. (I.etter Number: 281)

Restonse: The NRC agrees with the commenter that the rate of false positive tests from licensees' testing facilities is not a matter of concem to the NRC, because all  ;

specimens screening positive are forwarded for confirmatory testing to an HHS-certified l laboratory. However, because a specimen that is screened negative at a licensee's testing facility does not receive any further testing,it is of central concem to the NRC that the rate of false negatives (i.e., the percentage of specimens that contain a drug or drug metabolite above the cutoff level that are not detected by the test) is kept to the minimum to ensure that workers who have abused drugs are detected. Therefore, the NRC Guidelines require that the licensees develop procedures to evaluate the false negative rates at their testing facilities.

The NRC leaves to the licensees the decision as to whether the benefits of performing initial screening tests outweigh the costs of complying with the NRC regulations for licensee test facilities.

10.5.10 Comment: One commenter requested clarification on the screening procedures l I

to be used by HHS-certified laboratories receiving initial positive specimens from licensees with on-site testing. (Meeting Comment: M-1.68) ,

1 10-15 j

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[

L Resoonse: The NRC Guidelines published as an appendix to the rule require that any sample received from a licensee is to be screened by the HHS-certified laboratory,  ;

even if the sample was first screened by the licensee's testing facility before being sent to i the laboratory. I 10.5.11 Comment: A few commenters stated that the contract laboratory should be required to conduct semening and confirmation tests to the cutofflevels specified by the licensee. (Letter Numbers: 275; 326;343. See also subsections 3.5.23 and 3.5.24.)

Resoonse:

~ The NRC concurs with these commenters. The NRC Guidelines require HHS-certified laboratories to report tests at the licensee's and the NRC's cutoff j levels, j

i 10.5.12 '

Comment: Two commenters stated that the proposed rule requires licensees to have the HHS-certified laboratories conduct both initial screening tests and GC/MS confirmatory tests on every sample forwarded to the laboratory, and that compliance with this requirement would be prohibitively expensive. (Letter Numbers: 278;298)

]

Resoonse: The NRC concurs with this commenter and regrets the lack of clarity of the wording of the proposed rule. Section 26.24(f) has been revised to indicate that confirmatory testing is required only for those aliquots that test positive on the initial screening test conducted by the HHS-certified laboratory.

10.5.13 l

Comment: Two commenters indicated that it would be difficult to identify sources of samples for the blind performance tests required oflicensees under the proposed rule. (Letter Number: 329. Meeting Comments: M-1.5; M-1.6.)

Resoonse: The NRC has consulted with personnel of the Office of Workplace Initiatives at the NationalInstitute on Drug Abuse and has been assured that sufficient sources of blind samples are available. See: FRN, Supplementary Information, Section 13.2.6.

10.6 Requirements for Review of Test Results by a Medical Review Officer Several commenters questioned the procedures to be used to confirm an initial positive test, including irview of the confirmed positive test by a qualified medical professional.

10.6.1 Comment: Several commenters indicated that the requirement for a Medical  ;

Review Officer to confirm positive tesuesults before any sanctions can be taken by licensee management would result in workers remaining on the job with unescorted access during the several days required to process, mail, test, and evaluate the results. (Letter Numbers: 275;303;326;355;376. See also subsections 3.5.23 and 3.5.24.)

10-16

l Resnonse: The NRC concurs with the commenters that the requirement for a Medical Review Officer to review confirmed positive test results will allow workers to remain on the job for several days after the results of the confirmatory test are known. The Commission is also very concemed with the possibility that a person who is either untrustworthy or who may have been impaired continues to have unescorted access to protected areas of a nuclear power plant. The NRC has concluded, however, that there are many reasons that a worker may receive presumptive positive test results that are not due to substance abuse. The Commission believes that the negative impact on the worker's career, relationships with co-workers, and morale of being incorrectly identified as a substance abuser is of such significance that the few days required for the Medical Review Officer's evaluation are an acceptable price to pay for ensuring that the test results do,in fact, indicate substance abuse. The NRC expects that the multifaceted approach taken in the rule to ensuring that nuclear power plant workers are fit for duty will adequately protect public health and safety in the short period of time that the worker will retain his or her unescorted access. In particular, the extensive requirements in the rule for supervisory behavioral observation training are intended to provide supervisors with the skills and knowledge to monitor the behavior of subordinates for evidence of impainnent and of substance abuse, and to take corrective action if any indications exist that a worker is unfit for duty on a particular day. In this mgard, the rule requires that impaired workers or those whose fitness may be questionable, be removed until determined fit. Further, it is the NRC's expectation that licensees will organize and administer their fitness-for-duty programs in such a manner that the Medical Review Officer is able to complete his or her mvestigations in a timely manner so that unnecessary delays will be avoided.

10.6.2 Comment: Several commenters stated that it is unnecessary and too costly to mquire that the Medical Review Officer (MRO) be a licensed physician. To require review by a licensed physician could cause unnecessary delays. The commenters suggested that any licensed health care provider, such as a nurse practitioner, could perform the routine reviews of test results mquired in the NRC Guidelines. In cases where the licensed health care provider mquires additional guidance, a licensed physician could be available to provide consultation. (letter Numbers: 252;279;298;329;355;372)

Resnonsg: The NRC concurs with the National Institute on Drug Abuse that the Medical Review Officer must be a licensed physician with knowledge of substance abuse for two primary reasons. The first reason is that typically only physicians are allowed and extensively trained to prescribe drugs for medical purposes in the United States, and so are generally better informed than other types of medical professionals about the legitimate uses of drugs. Second, licensed physicians are accustomed to the confidentiality of the doctor-patient relationship and so can be expected to treat an individual worker's confidential medical information with sensitivity and in acconlance with the ethics and legal precedents of the profession. Therefore, although the requimment that a licensed physician with knowledge of substance abuse serve as the Medical Review Officer may result in greater costs to licensees, it is the NRC's belief that the additional costs are justified by the knowledge, skills, and professional attitudes that licensed physicians can bring to the position. Fmther,it is the NRC's expectation that licensees will organize and administer their fitness-for-duty programs in such a manner that the Medical Review Officer is able to complete his or her investigations in a timely manner so that unnecessary delays will be avoided. See: " Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis," National Institute on Drug Abuse (September,1988); FRN, Supplementary Information, Section 13.2.5.

10-17

l 10.6.3 l

Comment: . . One commenter agreed with the rule's requirement that trained medical professionals qualified in substance abuse disorden be involved in the task of evaluating workers' potential or actual substance abuse problems. The commenter stated that his utility already meets this mquirement of the rule. (Letter Number: 329)

Resoonse: The NRC concurs with the commenter that substance abuse

- professionals must be involved in the task of evaluating substance abuse problerns, but reserves the task of evaluating the results of chemical tests to licensed physicians with knowledge of substance abuse disorders. See: NUREG/CR-5227, Chaptem 6 and 7.

10.6.4 Comment: One commenter asked if the HHS Guidelines a".ow an individual

' who is not a licensed physician to act as the Medical Review Officer. (Meeting Comment:

M-1.7) ,

Resnonse: The NRC has determined that only a licensed physician with knowledge of substance abuse may act as the Medical Review Officer. See: FRN, Supplementary Information, Section 13.2.5.

10.6.5 Comment: One commenter suggested that the term " medical review officials" in

' Section 26.29(b) be revised to xad " medical n: view professionals" to clarify that personnel

' information collected under the rule is not to be made available to licensee executive officers. (LetterNumber: 252)- I Resoonse: I The NRC concurs that the wording of the proposed rule may be j confusing and so has replaced " officials" with "officen"in Section 26.29(b). The NRC believes that this term has a clear meaning under the NRC Guidelines.

{

10.6.6

)

Comment: One commenter asked for clarification of the role and purpose of the Medical Review Officer. (letter Number: 329) l Resoonse: Information on the role and purpose of the Medical Review Officer I can be found in " Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis," National Institute on Dmg Abuse (September,1988).

10.6.7 ]

Comment: Two commenters recommended that the rule not allow for removal of unescorted access unless the Medical Review Officer concurs with the confirmed positive test results. (Letter Number: 316. Meeting Comment: M-1.139.)

Resoonse: This recommendation is addressed in rule Sections 26.3 and 26.27.

Section 26.27 provides for removal from activities within the scope of this rule following a

" confirmed positive test." The Section 26.3 definition of" confirmed positive test," as )

amended, requires that the result of a confirmatory test be " deemed positive by the Medical j Review Officer (MRO) after evaluation." Yet, as Section 26.27(b) notes, these are

" minimum" actions to be taken by licensees and nothing in the rule prohibits licensees from 10-18 i i

j

l 0

taking more stringent actions. Licensees can, therefore, remove a worker from unescorted access before Medical Review Officer determination of confhmed positive test results if that

- appears to be a prudent means to ensure safety. For example, a licensee could decide to remove a worker based on information other than the screening test such as behavioral observation or evidence of involvement with illegal drugs.

L

'10.7- Solittine Snecimen Samules Commenters questioned whether specimen samples could be split prior to testing so that, in the event of a confirmed positive sample, the accuracy of the result could be verified by having the retained specimen sample tested at another certified laboratory.

10.7.1 Comment: Several commenters suggested that additional quality controls on the testing process could be achieved by splitting urine samples at the collection site and retaining part of the sample at the licensee's facility until the testing of the other part is complete. These commenters recommended that if the specimen tests positive, the worker tested be allowed to have the split sample tested. Some commenters suggested that the test of the split sample be conducted by the same laboratory that conducted the first test; others indicated that the split sample should be sent to another HHS-certified laboratory. Another commenter recommended that the split sample should be tumed over to the individual for testing at the laboratory of his or her choosmg.- (Letter Numbers: 263;308;310;352; 356;370)

Resoonse: The NRC concurs with these commenters that splitting urine samples can provide an additional check on the quality and integrity of the licensee's chemical testing pmgram and so has developed enabling language in Secti9 n 2.7(j) of the NRC Guidelines. The NRC does not believe, however, that submitting the split sample to the same laboratory that tested the first aliquot provides an adequate check on the chemical -

l- testing process and does not agree that tummg the split sample over to the individual adequately safeguards the integrity of the spht sample. Therefore, the NRC Guidelines require that,if a split sample is to be analyzed, it must be submitted to another HHS-certified laboratory and protected by the same rigorous chain-of-custody procedures that were followed for the first aliquot. See: FRN, Supplementary Information, Section 13.2.7.

I 10.8 Other Issues c ,

A number of other issues related to guidelines for drug testing programs in the nuclear power industry were raised.

10.8.1' Comment: One person at the public meeting asked about the rationale for testing a sample that the collection site person has a reason to believe is suspect. (Meeting Comment: M-1.4)

Response: The NRC believes that testing the suspect sample and comparing the results to the second sample may provide additional information about whether or not the suspect sample has been adulterated or substituted. In addition, throwing away the suspect i sample could be considered destroying evidence in a subsequent legal proceeding and so should be avoided. Furthennore, the rule allows the reporting to the Medical Review 10-19

Officer of any detected trace amounts of drugs or metabolites found in such specimens, for appropriate actions by the licensee.

10.8.2 Comment: One commenter argued that the testirg requirements of Section 26.24 create a huge potential for abuse, particularly as a means for carrying out personal vendettas. (Letter Number: 334)

Resoonse: The NRC is also concerned that the chemical testing provisions of the rule are administered fairly and are not subverted to carry out personal vendettas. For these reasons, Section 2.3 of the NRC Guidelines requires that licensees' chemical testing program personnel are selected " based upon the highest standards for honesty and mtegrity," and that licensees develop and implement measures to ensure that these standards are maintained. See: NUREG/CR-5227, Supplement 1, Chapter 5.

10.8.3 Comment: One commenter recommended that the NRC depart from the HHS Guidelines, and mquire individuals tested to complete a form listing all medications taken during the preceding 30 days, before they provide a urine specimen. (Letter Number:

298)

Resoonse: The NRC concurs with this commenter and has included in Section 2.4(g)(23)(ii) of the NRC Guidelines a requirement that workers who are tested be provided an opportunity to submit information concerning medications taken or administered during the past 30 days.

10.8.4 Comment: One commenter stated opposition to the direct observation of urination under any circumstances as unnecessary. (Letter Number: 370)

Resoonse: The NRC does not agree that there are no circumstances under which the dimet observation of urination is necessary, but is sensitive to the commenter's concern about the intrusiveness of the procedure. Consequently, the NRC Guidelines specify less intmsive steps to be taken to ensum the integrity of urine specimens and limit the conditions under which observation of urination is required.

10.8.5 Comment: One commenter noted that the NRC and licensees should require at least the same amount of quality control in chemical testing as is required for the production of safety-related equipment for nuclear power plants, given the potential for errors in chemical testing to ruin a worker's reputation and livelihood. (12tter Number: 59)

Resoonse: The NRC shares the concern of this commenter and believes that compliance with the provisions of the rule and the NRC Guidelines will be sufficient to protect workers' reputations and livelihoods.

10.8.6 Comment: One commenter requested that inspections and surveillance of the on-site urine collection process should be performed. (letter Number: 59) 10-20

1 1

)

Response: The NRC concurs with this commenter and will assess all licensees' implementation of the rule. Intemal audits are also requimd.

10.8.7 Comment: Two commenten indicated that the term " cutoff level" used in the definition of" confirmed positive test" needed additional clarification and suggested amending the last phrase to read " specimen at or above the cutofflevel." (letter Numbers:

326; 330)

' Resoonse: The comment has been adopted.

1 10-21

1 (1

11.0 TRAINING.

' Commenters raised several issues mgarding the training provisions of the proposed rule, including the scope of training to whom the training provisions apply, the necessity of employee education and awareness training and supervisory and escort training, the types of behavioral observation techniques to be used, and the frequency of refresher training for workers. A number of other issues related to training were also raised by commenters.

11.1 Scone of Trainine T

A number of commenten; raised the issue of the scope of training, that is, to whom the training provisions apply.

11.1.1 Comment: One commenter stated that the amount and scope of training that the rule requires to be provided to the contractor and vendor personnel is unreasonable.

(LetterNumber: 300)

Resnonse: The NRC believes that the training required of contractor and vendor

. personnel is prudent and necessary to ensure plant safety and security. Therefore, the amount and scope of training required of contractor and vendor personnel will remain unchangedin the final rule.

11.2 Policy Communications and Awareness Trainine

, Commenters expressed both concern and support for the type of policy communications

l. and awareness training provided in the proposed rule.

11.2.1

(. Comment: Many commenters expressed support for drug awareness education

• and behavioral observation training as effective means of combating fitness-for-duty problems. (Letter Numbers: 2; 6; 32; 273; 278; 295; 315; 329; 349)

Resoonse: The NRC concurs with the commenters' statement that drug awareness and behavioral observation training can be an effective means of combatting .

fitness-for-duty problems in the nuclear power industry. As discussed in Chapter 4, NUREG/CR-5227, an employee awareness and education program is a necessary component to drug testing and employee assistance programs (EAPs). Employees must be informed about the rationale for drug testing and about procedures for making referrals to the EAP for the program to be effective. Employee awareness and education also provides evidence of the seriousness with which management views fitness-for-duty issues. See:

NUREG/CR-5227, Chapters 4 and 6; FRN. Supplementary Information, Section 7.2.

I1.2.2 Comment: One commenter indicated that procedures for reporting and recognizing an impaired supervisor should also be included in Section 26.22. (Letter Number: 267) i 11-1

j 1

- Resoonse: Procedures for reporting an impaired supervisor are covered under Sections 26.20(a) and (d) of the rule. Training in the implementation of these procedures is covered in Sections 26.21(a)(1) and 26.22(a)(5) of the rule.

12.2.3 Comment: . - A few commenters recommended that the NRC should only require that workers be provided with information regarding a licensee's fitness-for-duty policy.

General education programs are not needed for viable fitness-for-duty programs, particularly in light of their high visibility. (Letter Numbers: 300; 329; 353)

Resoonse: NRC audits of licensee programs and interviews with contractor and licensee personnel have indicated a need for drug awareness education and training as part of an effective fitness-for-duty program. Employees must be informed about the rationale for drug testing, what is expected of them, and what consequences may result from lack of adherence to the policy. Additionally, to facilitate self-referrals, employees must be made

-aware of the employee assistance program (EAP) and its purposes. Although a policy statement and written procedures can demonstrate the senousness with which management views fitness-for-duty problems, employee training is also considered to be important.

See: NUREG/CR-5227, Chapters 4 and 6; FRN, Supplementary Information, Section 7,2.

11.2.4 Comment: One commenter expressed a desire for more specific NRC guidance regarding the required content oflicensee drug awareness education and training programs.

(Meeting Conunent: M-1.59)

Resoonse: . The NRC believes that the licensee has available several viable industry models for licensee drug awareness education and training and, thus, has not provided this guidancein the rule.

11.3 Supervisory and Escort Training Commenters expressed both concern and support for the type of supervisory and escort training provided in the proposed rule, j 11.3.1 Comment: Several commenters stated that all employees covered under the proposed rule should receive training in the matters contained in Section 26.22(a)(3), (4) and (5) of the proposed rule. (Letter Numbers: 19;58;228;251;267;308;353;370) l Resoonse: The Commission appreciates the numerous responses it received .

from commenters regarding the scope of training that should be required of employees i covered under the proposed fitness-for-duty rule. After careful consideration, the NRC has i determined that the training of all employees in the items specified in Section 26.22(a)(3),

(4) and (5) is unnecessary m light of the substantial administrative burdens this level of training would create and the little additional assurance it would provide in fostering a drug-free work environment. Thus, only supervisors and managers will be required to be trained in detail on these subjects. )

I 11-2 l

11.3.2 Comment: A significant number of commenters stated that the training required by the rule for non-supervisory personnel assigned escort duties is unnecessary and should be limited to supervisory personnel. Individuals can create very little risk to safety while they are being escorted. Thus, the training of all workers in behavioral observation techniques for detecting degradations in performance or changes in worker behavior would be overly burdensome and provide little additional assurance of a drug-free work place.

(Letter Numbers: 58; 264;269; 271;272; 275;278;281;298;300;303; 304;309;316; 317;326;329;330;331;339;340;343;349;355;356;358;366;371;373;376. Meeting Comment: M-1.56. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC has revised the proposed rule to clarify its intent that escort personnel are not required to receive trainmg in supervisory responsibilities. The revised rule requires that all non-supervisory personnel assigned to escort duties must be familiar with the techniques for mcognizing drugs and indications of the use, sale, or 30ssession of drugs; be familiar with techniques for recognizing aberrant behavior; and be (knowledgeable of the proper procedures for mporting incidents of aberrant behavior to the appropriate management authorities. See: FRN, Supplementary Information, Section 7.2; Final Rule, Section 26.22(b).

I1.3.3 '

Comment: One commenter recommended that training of supervisors should be transferable from another licensee with suitable confirmations in the same way that a site access authorization is transferable. (Letter Number: 317)

Response: The NRC recognizes the value of transferability of supervisory training between licensees as a means of reducing administrative costs and expediting the assignment of supervisory duties. However, the equivalency of the policies and written procedures, supervisory training, curriculum objectives, and refresher training requirements are not always certain. Thus, the NRC expects that the supervisor in question would be " retrained" by the new licensee.

I1.3.4 Comment: A few commenters raised the question as to whether contractor supervisors are mquired to receive the training specified in Sections 26.21 and 26.22. One stated that this training would be very costly for contractors, since supervisory authority is sometimes rotated among worken. (Meeting Comments: M 1.55; M-1.57; M-1.58)

Response: As stipulated, contractor supervisors will be required to receive the training specified in Sections 26.21 and 26.22 of the final rule. The NRC recognizes the administrative burdens associated with the training of contractor supervisors, but considers these costs reasonable in light of the need to ensure public safety.

11.3.5 Comment: Many commenten recommended that the stipulation requiring the l completion of supervisory training in behavioral observation techniques be extended to l

allow supervison to complete initial training within six months following their assignment of supervisory duties. One commenter proposed that the rule require supervisors to 11-3 l

complete initial training within twelve months. (Letter Numbers: 252;269;271;275;281; 299;317;330;335;343;353;359;371;376. See also subsections 3.5.23 and 3.5.24.)

Resnonse: Because of the critical position that supervisory and managerial personnel serve in detecting impaired workers, the NRC has determined that the current provision regarding supervisory training is necessary and will remain as stated in the proposed rule. See: FRN, Supplementary Information, Section 7.2; NUREG/CR-5227, Chapter 4; Final Rule, Section 26.22(c). ,

11.4 Behavioral Observation Technioues A number of commenters raised issues regarding the use of behavioral observation techniques for recognizing substance abuse in the workplace.

11.4.1 Comment: Two commenters expressed concem regarding the difficulty of .

detecting drug or alcohol impaired employees with behavioral observation techniques. One comr . enter stated that supervison in his program benefit from being able to discuss issues with a medical chemical dependency expert. The other commenter stated that supervisors can more easily identify alcohol problems than drug problems. (Letter Numbers: 329; 331) 3 Resnonse: The NRC realizes the difficulties associated with detecting drug or alcohol impaired employees through behavioral observation techniques. A significant training effort is therefore expected of the licensee. For this reason the NRC has attempted to develop a comprehensive program for detecting fitness-for-duty problems within the l nuclear powerindustry. The NRC believes that the combination of random, for-cause, and pre-employment drug and alcohol testing along with the use of effective EAP, workplace security, and access authorization programs will effectively deter drug and alcohol abusers and minimize fitness-for-duty problems within the nuclear power industry. The NRC strongly supports the commenter's recommendation that supervisors utilize the expertise of medical chemical dependency experts and EAP counselors in dealing with employee fitness-for-duty problems, but has not made it a requirement of the rule. See:

NUREG/CR-5227, Chapters 4 and 6.

11.4.2 l Comment: One commenter stated that supervisors are in the best position to observe diminishing performance, but they should not diagnose the cause They should instead refer the individual for a medical exam. (Letter Number: 271) i Resnonse: The NRC concurs with the commenter that this is the proper practice.

11.4.3 Comment: Two commenters questioned whether supervisors should be trained in criminal detection techniques, i.e., ". . . techniques for recognizing drugs and indications of the use, sale, or possession of drugs." Commenters felt that these activities should be left to professional law enforcement agencies. (Letter Numbers: 309;356)

Resnonse: The NRC does not expect supervison to engage in criminal investigations. These activities should be left to professional law enforcement personnel. j i

i 11-4

)

1 However, the NRC does consider supervisory training in " techniques for recognizing

[ drugs and indications of the use, sale, or possession of drugs" to be reasonable measures for the prevention of fitness-for-duty problems. A supervisor who witnesses drug-related activities would be expected to recognize the true nature of the activities and report such activities to the appropriate licensee authorities. See: Final Rule, Section 26.22(a)(3).  ;

11.4.4 Comment: Several commenters stated that a listing of specific behavioral observation techniques is inappropriate because the principle of behavioral observation is that all changes in behavior must be evaluated over a period of time. (Letter Numbers:

269; 275;317;326;330;343;371;376. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC wishes to clarify that Section 26.22(a)(4) does not reference specific behavioral observation techniques. Rather the section catalogs the behavioral observation objectives of detecting degradations in performance, impairment, or any changes in an employee's behavior that might suggest fitness-for-duty problems that 1 could potentially endanger plant safety or security.

11.5 Refresher Trainine Commenters questioned the f equency of refresher training for workers, supervisor 3, and escorts.

I1.5.1 Comment: Many commenters stated that refresher training should be required less frequently than in the proposed rule. Most suggested that it be completed every two years or more frequently when needed due to changes in the program. One commenter proposed that refresher training be every three years, because "too frequent" exposure to the material would lessen interest in it. The commenters felt that the less frequent training would still be adequate while reducing the administrative burdens on the licensee. One commenter suggested that the phrase, "or more fmquently when needed" be dropped from this section, unless the basis for such a need can be clearly identified by the Commission.

(Letter Numbers: 58;252;264;272;275;281;298;299;300;317;326;330;335;339; 343;349;353;358;359;371;376. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC has determined that the provision requiring licensee personnel to receive annual refresher training in drug awareness and behavioral observation techniques will remain as stipulated in the proposed rule. Because supervisory personnel represent the first line of defense against fitness-for-duty problems, it is critical that they be trained to recognize these problems and handle them appropriately. Therefore, the NRC believes that the training of supervisory and managerial personnel in behavioral observation techniques will provide licensees with a valuable tool for the detection and deterrence of drug-and-alcohol-related impairment and for the detection of impairment from other causes.

Because of the significant level of knowledge and training required to accurately detect subtle indications of drug or alcohol impairment and the critical need to identify drug and alcohol abusers before they compromise public safety, the NRC believes it is prudent to require supervisory training on an annual basis or more frequently when necessary. In addition, the NRC will continue to require annual refresher training of all non-supervisory personnel to ensure that licensee and contractor employees understand the requirements of the licensee's fitness-for-duty program, are aware of their responsibilities, and, in the case oflicensee employees, are aware of opportunities for assistance available through EAP services. NRC audits oflicensee programs and interviews with contractor and licensee 11-5

personnel havt indicated a need for this level of refresher training. The Commission has also detemtined that the phrase "or more frequently .when needed" is a necessary component of the Sections 26.21 and 26.22 because it would provide for a timely means of alertmg affected persons of changes in program policy or modus operandi of the drug culture. See: NUREG/CR-5227, Chapters 4 and 6; FRN, Supplementary Infonnation, Section 7.2.

11.5.2 Comment: ' One commenter stated that annual refresher training is an essential element of an effective fitness-for-duty program. Refresher training provides a timely means of alerting affected persons to changes in program policy or modus operandi of the drug culture. (LetterNumber: 356)

Resoonse: De NRC concurs with the commenter's statement that annual refresher training is a vital component of an effective fitness-for-duty program. Annual refresher training for all employees has been included in the final rule. See: NUREG/CR-5227, Chapters 4 and 6; FRN, Supplementary Information, Section 7.2.

11.6 Other Issues Other issues related to the training provisions in the proposed rule were raised by a number of commenters.

I1;6.1 Comment: Four commenters stated that the behavioral observation and training provisions of the rule were better addressed under the access authorization program.

(Letter Numbers: 300;309;329. Meeting Comment: M-1.53.)

Resoonse: He NRC recognizes that there is some overlap between Section j 26.22 of the proposed fitness-for-duty rule and Section 9(c) of the Industry Guidelines which accompanied the proposed Access Authorization Policy Statement (53 FR 7534).

However, the fitness-for-duty training requirements are compatible with the industry guidelines and more comprehensive, to melude techniques for recognizing drugs and understanding the role and responsibilities of other elements such as the Employee Assistance Program. Consequently, the NRC will retain this provision in the final fitness-for-duty rule. See: FRN, Supplementary Information, Section 14.2.2.

11.6.2 Comment: Several commenters recommended that subparagraph 26.22(a) I should be changed to read " Procedures forinitiating corrective action." By deleting the phrase concernmg counseling and treatment, each utility could then determine the most appropriate action to meet specific utility needs. Another commenter suggested that the term " counseling" be replaced with the phrase " medical assessment or counseling," again to give the licensee adequate flexibility to deal with the needs of each individual case. (Letter Numbers: 269;339;358;376)

Resoonse: The NRC has revised the proposed rule to clarify its intent that supervisory personnel should not initiate employee referrals for counseling or treatment.

Rather, supervisory and managerial personnel should refer employees to an EAP counselor for assessment. The EAP counselor would then meet with the employee to assess the Il-6

i nature of the problem and to determine what resources are needed to resolve it. See: FRN, Supplementary Information, Section 12.2; NUREG/CR-5227, Chapter 4.

11.6.3 Comment: One commenter stated that Sections 26.21(a)(2) and (3) are already addressed by subparagraph (1) and (5) of the same section. (letter Number: 356)

Resoons: The NRC wishes to clarify that Sections 26.21(a)(2) and (3) are not addressed in subparagraphs (1) and (5) of Section 26.21. Subparagraphs (2) and (3) pertain to specific training in the hazards associated with substance abuse, and the effects of prescription and over-the. counter drugs and dietary conditions on drug test results. The role of the Medical Revic.w Officer is also addressed in this section. While, Subparagraphs (1) and (5) addres' the communication of fitness-for-duty policies and procedures and employee respon'ibilities under the licensees fitness-for-duty program.

L 11-7

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12.0 SANCTIONS AND OTHER MANAGEMENT ACTIONS u

Several issues were raised by commenters regaiding the sanctions provided in the proposed rule. Commenters questioned the types and severity of sanctions, the initiating events and time periods for access denial, the processes by which a worker is referred to an employee L assistance program (EAP) for assessment, the rehabilitation requirements for a worker with 0 a substance abuse problem, the conditions of access reinstatement, and the follow-up testing requirements for reinstated worken. Other issues related to sanctions in the proposed rule were also raised by a number of commenters.

12.1 Determination of the Tyne and Severity of Sanctions A number of commenters questioned the regulatory authority of the NRC and the authority oflicensees to determine the type and severity of sanctions.

12.1.1 Comment: Many commenters argued that sanctions are matters of discipline and employment which are a management responsibility and not within the NRC's regulatory authority. Therefore, this rule should be confined to decisions regarding unescorted access and allow licensees the flexibility to establish sanctions on a case-by-case basis. (Letter Numbem: 271;272;274;275;284;285;298;306;309;317;326;329;340;343;349; 354. Meeting Comment: M;1.138. See also subsections 3.5.23 and 3.5.24.)

Resnonse:

~

Section 26.27 is confined to matters of unescorted access which is central to the Commission's responsibility to promote the safe operations of nuclear facilities. It provides minimum time periods during which workers who have been found

(

to be connected with substance abuse cannot have access to protected amas. The rule does leave matters of discipline and employment to be decided by licensees.

l I2.1.2 l

Comment: One commenter recommended that the NRC should focus in Section 26.27 on the surety and severity of punishment rather than the probability of detection to insum that the random testing program provides an adequate deterrent. (Letter Number:

330)

Resnonse:

~

It is not the Commission's intent in Section 26.27 to mandate punishment for substance abuse. Instead, the purpose of this section is to set forth minimum requirements of removal from access that licensees should take under the specified circumstances of discovery of substance abuse. The Commission believes that the sanctions called for in Section 26.27 combined with other measures mandated throughout this rule and imposed by licensees will provide a sufficient deterrent to substance abuse by licensee employees.

12.1.3 Comment: Several commenters noted that licensecs' experience indicates the need for flexibility in determining the appropriate sanction to be imposed in cases of alcohol abuse and that sanctions that are appropnate in the case ofillegal drug use may not be appropriate in instances of alcohol use. Therefore, the rule should allow separate and distinct sanctions for the two types of substance abuse. (letter Numbers: 275;326;331; 348; 375. See also subsections 3.5.23 and 3.5.24.)

12-1

Resnonse: The NRC agrees that the abuse of alcohol should not necessarily result in the same sanctions as use ofillegal drugs. Section 26.27(b) has been amended to i direct licensees to establish sanctions for the confirmed misuse of alcohol and over-the-counter drugs that are sufficiently severe to deter substance substitution. This section provides licensees considerable. flexibility in determining the appropriate sanction to be imposed in cases of alcohol abuse.

12.1.4 Comment: One commenter expressed support for inclusion oflegal substances under the rule, but stated that sanctions applied should depend on the substance and the circumstances. Alcohol-induced impairment should result in " proper discipline."

Impairment from other legal drugs should result in diffet.mt disciplines appropriate to the reasons for the use of the drug. (Letter Number: 300)

Resnonse: The Commission has followed this recommendation by adding a new Section 26.27(b)(4) which deals with licensee sanctions for the confirmed misuse of alcohol and over-the-counter drugs.

12.1.5 Comment! One commenter recommended that the abuse oflegal drugs should carry the same sanctions as use ofillegal drugs. (Letter Number: 269)

Response: The NRC believes that the sanctions in licensees' fitness-for-duty programs should recognize the important distinction between legal activities and illegal activities. The NRC does not agree that the abuse oflegal drugs should necessarily result in the same sanctions as use of illegai drugs. Section 26.27(b) has, therefore, been amended to direct licensees to establish sanctions for the confirmed misuse of valid prescription and over-the-counter drugs that are sufficiently severe to deter substance substitution.

I 2.1.6 Comment: One commenter objected that licensees would be allowed to take l more stringent disciplinary action than is specified by the proposed rule because such unfettered discretion would destroy the Commission's goal of achieving uniformity within theindustry. (LetterNumber: 273)

Resnonse: While achieving more uniform fitness-for-duty program standards is one of the Commission's goals in creating this part, such uniformity should not be gained by forcing overly prescriptive requirements on the nuclear power industry. The NRC believes that this rule will achieve an appropriate uniformity in program standards throughout the industry while preserving sufficient licensee management discretion so that each licensee can respond to its particular conditions.

I2.1.7 Comment: One commenter wamed that in utilities where termination of the employment of substance abusers and distributors ofillegal drugs already has been the practice, the proposed rule would weaken existing fitness-for-duty programs. (Letter Number: 24) 12-2

Resoonse: The mie will not weaken existing fitness-for-duty programs because i licensecs will still have the option to take more stringent actions than those set forth in l Section 26.27 and need not base their actions solely on positive test results or indications of l ~ involvement with drugs.

12.1.8 Comment: One commenter recommended that the title of Section 26.27 be changed to recognize that management actions should be characterized as corrective in nature rather than as punitive. (Letter Number: 375)

Response: The title of Section 26.27 is not meant to convey a punitive meaning and has not been changed.

12.2 Access Denial A number of commenters expressed concem over the types of events that would result in a worker being denied access, and the amount of time that access would be denied.

12.2.1 Comment: Several commenters urged the Commission to delete the 14-day removal from access requirement from Section 26.27(b) and, instead, allow licensees to consider each instance of a first positive test result on a case-by-case basis. Reinstatement should be a management decision based on performance records and the EAP-related medical advice and certification. (Letter Numbers: 230; 252;264; 271;272; 275:281; 284; 298; 303;317; 326;330; 343;349; 356. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Section 26.27(b) does allow licensees to consider each instance of a first positive test result on a case-by-case basis. Also, reinstatement will be a management decision based on the types of considerations that the commenters mention. The minimum 14-day period is necessary to ensure that each worker's problem is properly and thoroughly diagnosed and a safety-related solution is determined before the worker is again granted access.

I 2.2.2 Comment: One commenter argued that the Section 26.27(b) requirement of denial of access for at least fourteen days for a confirmed positive test is contrary to the objectives stated in Section 26.10. (Letter Number: 323)

Respong: Section 26.10 has been clarified by adding the assurance of reliability and trustworthiness of plant personnel in the performance of their duties as objectives of the rule. The Commission believes that a worker's off-site use ofillegal drugs or other substances that might impair his or herjob performance creates a question as to that worker's reliability and trustworthiness as well as the chance for on-the-job impairment. The Section 26.27(b) requirement of denial of access for at least 14 days for a first confirmed positive test does contribute to the rule's objectives. During that time the worker's problem can be diagnosed and addressed and the licensee can determine whether the positive test may have resulted from behavior that does in fact pose a serious safety threat.

12-3

12.2.3 Comment: Two commenters asked that the Commission make clear why a 14-day suspension is required after a first positive test result. (Letter Numbers: 329;376)

Resoonse: The NRC believes that the 14-day period is reasonable in that, in almost all cases, it would take at least that long to diagnose a worker's problem, determine a solution, and assure that the problem is addressed before the worker can again be granted access. Also, the NRC believes that at least 14 days is needed to conclude that the first confirmed positive :est may have resulted from behavior that does not in fact pose a serious safety threat. See the Statement of Consideration for the proposed rule in 53 FR 36814-17 and NUREG/CR-5227, Chapter 7. I 12.2.4 Comment: One commenter supported the need for a minimum requirement of suspension from access coupled with an appropriate evaluation by qualified counselors and ,

medical personnel and agreement by the worker to a plan of follow-up testing on an unannounced basis. The commenter also stated that both a second incidence of a positive '

test result and the sale of drugs should result in the permanent denial of access. (Ixtter Number: 376) ,

Resoonse: The rule does not preclude permanent denial of access in the circumstances raised by the commenter if such action appears to the licensee to be prudent following testing as required by the rule or at any other time deemed appropdate.

12.2.5 Comment: One commenter stated that immediate revocation of access, even for fourteen days, is a very severe measure, especially in light of the chance for a false positive test result. Such immediate revocation should be mandated only for on-site sale, use, or i possession ofillegal drugs or for aberrant behavior which could have an impact on the safe operation of the plant. (Letter Number: 340)

Resoonse: The severity of suspension of access for fourteen days must be viewed in light of the very imponant safety interests that this rule is intended to serve.  !

Also, the Commission believes that the use of the NRC Guidelines, published as an appendix to the imal rule, will essentially climinate false positive test results in fitness-for-duty testing.

12.2.6 Comment: One commenter believed thtt the three- and five-year employment restrictions in Section 26.27 are an arbitrarily imposed punishment and are without foundation. The commenter asked for an explanation of what authority was relied upon to establish these periods of restriction. (12tter Number: 273) {

Resoonse: The periods of removal from unescorted access established in Section 26.27(b) are not meant to serve as punishment for substance abuse. Instead, they are periods that the research and recovery literature indicate are within a reasonable and l

appmpriate range for the purposes of this rule. For example, the American Medical l

Association has developed criteria for recovery from substance abuse that include three years of abstinence from the primary drug of abuse and non-abuse of other substances.

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l i

l Other researchers have recommended five years of abstinence as a reasonable benchmark.  ;

See: NUREG/CR-5227, Chapter 7.

12.2.7 Comment: One commenter believed the three-year suspension from access after a second positive test result to be excessive. Instead, the commenter recommended that a six-month denial of access and return to work at the entry level should be the sanction for a second positive test. (LetterNumber: 2)

Resoonse: The NRC recognizes that removal from unescorted access for a minimum of three years after a second confirmed positive test is a stringent requirement.

The NRC believes that this measure is appropriate, however,in light of this rule's goal of assuring that workers are not impaired due to substance abuse. A second positive test would indicate that the person is most likely not able to stop using the substance in question and could, therefore, pose a threat to safety. Studies show that recidivism is significantly less after three years of abstention; this was the basis for the follow-up testing and the suspension period. The severity of the three-yearloss of unescorted access may also provide an incentive for employees to voluntarily enter into rehabilitation programs when they realize the seriousness of the substance abuse problem.

12.2.8 Comment: One commenter recommended the following sanctions: (1) for a first positive test, a fourteen day suspension of access as the rule proposes; (2) for a second positive, removal for a drug rehabilitation program attendance; (3) for a third positive, one month suspension plus drug rehabilitation attendance; and (4) permanent removal for a fourth positive. Additionally, workers involved in the sale, use, or possession of drugs in a protected ama should be tumed over the the appropriate law enforcement authorities.

(IztterNumber: 315)

Resoonse: The NRC believes that the degree of stringency refected in Section 26.27 is appropriate and has chosen not to amend this section.

12.2.9 Comment: One commenter recommended that (1) any person who sells or distributes drugs on- or off-site should be permanently discharged; (2) any person who uses, possesses or purchases drugs on the plant site should be discharged and considered for mhire only after three years; and (3) an employee whose involvement with drugs may have an advene impact on the licensee should be subject to appropriate corrective measures, ranging from counseling up to and including discharge. (Letter Number: 269)

Resoonse: The rule allows licensees to adopt any or all of these measures.

12.2.10 Comment: Two commenters recommended that unescorted access should be temporarily but immediately revoked upon an initial positive test until a confirmation test can confirm or refute the results of the drug screen, and is based on information in addition to the screening test. (Letter Numbers: 281;327)

Resoonse: The NRC,in consideration of the proper balance between public safety and the impact on the individual, encourages licensees to base most actions upon 12-5

drug tests that have been confirmed. The rule requires that impaired workers, or those whose fitness may be questionable, be removed. The rule, therefore, allows licensees to -

remove workers from unescorted access prior to confirmation of positive results when such action appears to be prudent, and may be based on information other than the screening test. Further, the rule requires that the review of the confirmatory test results by the Medical Review Officer (MRO) be completed within 10 days. Therefore, there does not appear to be a need to require prompt actions based on all presumptive positive screening tests.

12.2.11 Comment: One commenter recommended that a worker be assessed for potential substance abuse as soon as a urinalysis is confirmed as positive. The worker's access should be revoked and he or she should be sent to a chemical dependency physician for assessment. (Letter Number: 329)

Resoonse: The recommendations of this comment are essentially what is required by Section 26.27.

12.2.12 Comment: One commenter stressed that the speed in which the licensee is notified by the testing laboratory of a positive test result is essential. The commenter recommended that the employee's unescorted access authorization be immediately revoked upon the licensee's receipt of notification of a positive confirmed test result. (12tter Number: 272)

Resnonse: If a worker is impaired or his or her fitness is questionable, Section 26.27(b)(2) requires that he or she be removed from activities covered by the rule and retumed only after determined to be fit. The NRC makes no direct connection between impairment and a positive test. However. to deal with potential impairment, reliability, and trustworthiness considerations, speedy return of test results are ensured by: (1) Section 2.7(g)(1) of the NRC Guidelines which requires the HHS-certified laboratory to report test results to the licensee's Medical Review Officer within five working days after receipt of the specimen by the laboratory; and (2) Section 26.24(e) of the rule which requires that the Medical Review Officer's review of the test results must be completed and licensee management notified within ten days of the initial presumptive positive screening test.

Given that there is a certain level of undetected substance abuse implied by any positive test rate, and given the other design features and operating procedures which provide assurance of safe operations, the NRC believes these time frames are adequate for the potential safety hazards.

I2.2.13 Comment: Several commenters took issue with the Section 26.27(b)(2) [now Section 26.27(b)(3)] sanction for involvement in the sale, use, or possession of illegal drugs. Some of these commenters believed that the rule should reauire a sanction for such involvement occurring anywhere on the plant site rather than just within the protected area.

Other commenters recommended that the rule require permanent denial of acces: for involvement in such activities rather than allow the potential for reinstatement of access after five years. (Letter Numbers: 264;272;275;281; 298;317;326;329:330; 343;349.

See also subsections 3.5.23 and 3.5.24.)

i 12-6

l Resoonse: The NRC believes that the protected ama is the appropriate physical l focus of this section because of that area's highly safety-sensitive nature. Licensees do have the option to establish sanctions for the sale, use, or possession ofillegal drugs anywhere on- or off-site. The NRC would strongly question management's decision not to myiew the access authorization of a worker involved in such activities. Likewise, the Commission believes that a minimum period of five yean; for denial of access for these activities is sufficient for purposes of ensuring safety. Licensees can, at their discretion, permanently deny access to anyone who sells, uses, or possesses illegal drugs anywhere on- or off-site. In addition, the mle requires reporting to the NRC of any involvement in illegal drugs of licensed operators or supervisors.

12.2.14 Comment: Two commenters recommended that licensees be granted more discretion in determining the management actions and sanctions to be imposed following the first confhmed positive test and that the second confirmed positive test should result in permanent denial of access. (Letter Numbers: 326;366)

Resoonse: Section 26.27(b) sets minimum standards for sanctions and othet actions that licensees must undertake. The NRC chooses not to require permanent denial of access following a second confirmed positive test because doing so would fail to recognize the substantial diversity of circumstances under which a second positive test could occur.

The rule does not prohibit licensees from taking more stringent actions than those set forth in Section 26.27(b).

12.2.15 Comment: One commenter believed that the mandatory time period for removal from access set forth in Section 26.27(b) willinterfere with confidentiality as well as the appeal process. (Letter Number: 340)

Restonse: The NRC recognizes that removal from access may, to a certain extent, interfere with confidentiality and possibly the appeal process. Removal from access for at least fourteen days is, however, necessary to accomplish the safety goals of the rule.

12.2.16 Comment: Several commenters recommended that Section 26.27(b)(3) [now Section 26.27(b)(4)] be modified so that (1) reinstatement would not apply to workers who had been found to have been selling or possessing drugs within the protected area; (2) the

" satisfactory . . . assurance" of the worker's fitness to perform duties within the scope of the rule not be characterized as " management and medical" assurance; nd (3) that the probationary period for follow-up testing after reinstatement of unesconed access be shortened from three years to one year. (Letter Numbers: 264;275;298;326. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Section 26.27(b)(4) allows licensees to consider workers who had been found to have been selling, using, or possessing illegal drugs within the protected area for reinstatement to unescorted access. Licensees can choose not to do so at their discretion. When deding whether to grant minstated access to any worker, the NRC believes that medical expertise should be used by management decision makers. Further, the NRC believes that one year would not be a sufficiently long period of follow-up testing to ensure that the worker has fully recovered and will not be a threat to safety and has, themfore, maintained the three-year period for such testing.

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12.2.17' Comment: One commenter recommended that a regular employee should be  ;

discharged on the occurrence of the earliest of the following events: (1) the second occasion of observable impairment; (2) the third positive test result; (3) one observable impairment followed by two positive test results; and (4) one positive test result followed by one observable impairment. Such a worker should be considered for rehire only after three years with evidence of abstinence from drugs. (LetterNumber: 269)

Resoonse: The NRC believes that the minimum sanctions following a first or second confirmed positive test that are established by Section 26.27(b)(2) are proper for purposes of ensuring the safety of nuclear operations. Licensees may at thdir own discretion discharge workers following the occurrences mentioned in the comment.

12.2.18 <

Comment: A few commenters argued that the denial of access authorization provided by the proposed rule, particularly the three-year suspension following a second confirmed positive test,is too stringent. (Ietter Numbers: 6;246;267) {

i Resoonse: The NRC recognizes that removal from unescorted access for a j minimum of three years after a second confirmed positive test is a stringent requirement. j The NRC believes the measure is appropriate, however, in light of this rule's goal of assuring that workers are not impaired due to substance abuse. A second positive test would indicate that the person is most likely not able to stop using the substance in question and could, therefore, pose an unacceptable threat to safety. Studies show that recidivism is significantly less after three years of abstention; this was the basis for the follow-up testing and the suspension period. The severity of a three-yearloss of unescorted access may also  ;

provide an mcentive for employees to voluntarily enter into rehabilitation programs when they realize the seriousness of the substance abuse problem.

12.2.19 Comment: One commenter remarked that the proposed durations of removal from access appear to be adequate. (Letter Number: 252)

Resoonse: The Section 26.27 durations of removal from access appear to be well suited to achieve the safety goals of the rule.

12.2.20 .

1 Comment: Several commenters recommended that the sanctions following l positive drug test results be made more stringent. One of these recommended that a worker should have access denied and be dismissed permanently upon any positive test result. The other commenters recommended that the rule require permanent denial of access following the second positive random, for cause, or post-accident drug test. (Letter Numbers: 19; 275;281;330;349; 371. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC believes that the sanctions set forth in Section 26.27 contain an appropriate mix of flexibility and stringency. The 14-day period following the i

first confirmed positive test is necessary to properly diagnose the nature and extent of the worker's problem and establish an effective solution to the problem. This is meant to be a minimum period; access to protected areas can be withheld for a longer period if the 12-8

y

[,

situation warrants. As other commenters noted, the three and five-year periods of access denial are quite stringent. As Section 26.27(b) indicates, the rule does not prohibit the licensee from taking morc stringent actions than the minimum actions mandated in that section.

12.2.21 Comment: Several commenters mcommended that the rule should make clear that a licensee has no responsibility to reconsider an individual for re-employment or for unescorted access after the specified three-year or five-year removal periods. (letter Numbers: 329;339;358;371;376)

Resoonse: It is not the Commission's intention to create a responsibility for licensees to reconsider a person for re-employment or for unescorted access after that person has been removed from unescorted access for the three- or five-year removal periods specified in Sections 26.27(b)(2) and (b)(3).

12.2.22-3mment: One commenter recommended that the rule require that a worker who tesb 30sitive for alcohol should be denied access until he or she has been evaluated by the medical personnel as fit to return to duty. (12tter Number: 272)

Resoonse: Section 26.27(b) has been amended to provide for sanctions for misuse of alcohol and over-the-counter drugs. New Section 26.27(b)(5) directs licensees to establish sanctions for misuse of alcohol and over-the-counter drugs that are sufficiently severe to deter substance substitution. Such sanctions may wellinclude denial of access until the worker has been evaluated by medical personnel as fit to return to duty.

12.2.23 Comment: One commenter asked whether the Section 26.23 requirement that personnel having been denied access or removed from nuclear safety activities at any plant not be assigned to contracted work means that such people will not be granted unescorted access. (Meeting Comment: M-1.60)

Resoonse: Section 26.23 states that such persons ". . . will not be assigned to work ... without the knowledge and consent of the licensee." The licensee may choose to -

grant unescorted access, provided the provisions of Section 26.27 are met. The intent of this requimment is to assure contractors do not conceal adverse information from the licensee.

12.3 Referral to an Emolovec Assistance Procram Issues were raised by several commenters agarding the types ofinitiating events that would msult in a referral to an employee assistance program (EAP).

12.3.1 Comment: - One commenter objected to the rule requiring that a worker be put i into a remedial drug program after having received a positive drug test. (Meeting Comment: M-1.18) h 12-9

__ - _ _ ___ __ _ _ _ ___ _ a

l Resoonse: Section 26.27(b)(2) does not require that a worker be put into a i

" remedial drug program." Instead,it requires that the worker be referred to the EAP for assessment and that the licensee take appropriate action.

12.3.2 l Comment: In developing plans for treatment and follow-up after a first positive test as required in Section 26.27, one commenter recommended that three categories be used in assessing the worker's needs. The first category would include the casual user who would be returned to work but would be required to undergo 12 months of surveillance screening and would also be required to go through a drug education program.

The second category would include people who have been identified as not necessarily addicted but at significant risk. Such workers would be required to go to chemical dependency counseling and a specialist would determine whether the individual would be allowed to go back to work or be sent to rehabilitation. Categmy thme would include people with serious addiction. These people would be required to undergo rehabilitation and the licensee management would determine when these workers would go back to work. (Letter Number: 329)

Resnonse: While such categorization could be beneficial for some licensees' fitness-for-duty programs, the NRC has chosen not to include such prescriptive requirements in the rule.

12.3.3 Comment: One commenter asked whether the rule would require a worker who tested positive to be afermd to the EAP for assessment and counseling even though the test msults may be only 10 or 15 nanograms above the testing cutoff level. (Meeting Comment: M-1.12)

Resoonse: If the test results are above the cutofflevel established by the licensee, the worker will be mferred to the EAP for assessment and counseling. Also, the Medical Review Officer may determine that circumstances warrant similar action following detection of quantities of drugs or metabolites below the cutoff levels.

12.4 Rehabilitation Commenters expressed concern regarding the determination of rehabilitation requirements for workers with substance abuse problems.

12.4.1 Comment: One commenter recommended that a worker foond to have a substance abuse problem which causes impairment should be barred caly for a time period which assures that he or she has been successfully rehabilitated. Any other approach would discourage workers from voluntarily entering rehabilitation programs when they actually have a pmblem. (Letter Number: 251)

Resnonse: The NRC would encourage licensees to pursue successful habilitation of workers who are found to have. a substance abuse problem through a first confirmed positive drug or alcohol test. A second confirmed positive test would indicate that the person is most likely not able to stop using the substance in question and could, therefore, pose a threat to safety. Such a situation merits the more severe minimum three-year period of removal from access. The NRC believes that the severity of a three-year 12-10

- loss of unescorted access may also provide an incentive for employees to voluntarily enter rehabilitation programs when they realize the seriousness of the substance abuse problem.

It should be noted that studies indicate that successful rehab!!itation is not achieved until the  ;

patient has abstained for at least three years. In that mgard, the rule permits workers following treatment for a first positive drug determination to be reinstated during the three-year rehabilitation process.

12.4.2 Comment: Most people assigned to rehabilitation programs mlapse after treatment and a second effort is required to maintain abstinence. Therefore, two positive tests should be allowed before any major penalties are enacted. A first offense should result in a five-day suspension and the second offense should resultin a ten-day suspension. (Letter Number: 6)

Resoonse: In most cases a fourteen day period is necessary to adequately assess the worker's condition and requirements. The occurrence of a second confirmed positive test result merits a much mom serious measure than a 10-day suspension. It would indicate that the person is most likely not able to stop using the substance in question and could, therefore, pose a threat to safety. The rule's mandated removal from unescorted access for a minimum of three years properly recognizes the seriousness of a second positive test.

12.4.3 Comment: Two commenters recommended that the rule should not make rehabilitation mandatory for those failing drug tests but should leave that decision up to licensee management and allow discharge of the worker if that appears to be appropriate. i (Letter Numbers: 24; 278)  !

i Resoonse: This comment is accommodated in Section 26.27(b).

12.4.4 Comment: A few commenters stated that the successful completion of habilitation should not guarantee restoration of protected area access. (Letter Numbers:

337;339;358)

Response: A worker's successful completion of drug or alcohol rehabilitation does not guarantee restoration of protected area access under the rule's provisions.

Licensee management and appropriate medical evaluations shall determine whether unescorted access is restored.

12.4.5 Cnmp.31: Because rates of relapse are so high, one commenter believed that decisions rt 'Eng the 9 habilitation and return to work of a worker who has violated an fitness-for-6tay policy snould be left to utility management. (I2tter Number: 24)

Response: Beyond the 14-day and three-year minimum removal from access requirements of Section 26.27(b)(2), the rule does leave rehabilitation and return to work decisions to licensee management discretion.

12-11 l

12.4.6 Comment: Two commenters recommended that the rule create a right for workers to have reasonable rehabilitation and medical services prior to termination. (Letter Numbers: 32;263)

Resnonse: The NRC has declined to mandate rehabilitation and medical services prior to termination as such matters are within the province oflicensee management-employee relations.

I2.4.7 Comment: One commenter believed that rehabilitation efforts to counteract alcohol use may be more effective than after discovery of use of other drugs because (1) unlike use of illegal drugs, use of alcohol is legal; and (2) data show that professionally monitored rehabilitation efforts for alcohol use are more successful than for abuse of other drugs. (LetterNumber: 331)

Resoonse: While the information presented in this comment may be accurate, it is also true that studies show that relapse rates for alcohol are quite high. Rehabilitation for abuse of both alcohol and other drugs is by no means a straightforward process. This is one of the reasons for the follow-up testing that is required by Section 26.27(b)(4). See:

NUREG/CR-5227, Chapter 7.

I2.4.8 Comment: One commenter concurred with NUMARC's proposed wording for Section 26.27(b) and also recommended that rehabilitation be a prerequisite to having unescorted access reinstated though the rehabilitation should not be mandated through the E AP. (Ixtter Number: 278)

Resoonse: In those cases where rehabilitation is appropriate,it should be part of the program devised for the worker during the suspension period called for by Section 26.27(b). This section allows licensee management to determine whether or not such rehabilitation would be carried out through the employee assistance program (EAP).

12.5 Access Reinstatement I Commenters questioned the criteria and responsibility for determining access reinstatement.

l 12 5.1 '

Comment: Several commenters recommended that a worker's retum to duty after a positive test result should be determined by the licensee's t'edical department based on reports from the EAP and any other treatment professionals involved in the treatment plan. (LetterNumbers: 278;356;367) l Responst: This recommendation fits within the requirements of Section l 26.27(b). However, a positive determination by licensee management is also required by l the rule. l l

l l

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12.5.2 I Comment: One commenter argued that the requirement of Section 26.27(b)(3)

[now Section 26.27(b)(4)] of proof of three years of abstinence from drugs prior to returning to work is unmasonable because the worker would have to provide this proof himself at a time when he is prohibited from working in his field and because there is no  ;

- definition of satisfactory medical assurance given in the rule. (Letter Number: 323)

Resoonse: What constitutes satisfactory medical assurance of a worker's abstinence from drugs for at least three years and of his or her fitness to adequately perform ,

activities within the scope of this part must be determined by licensee management. While  ;

providing such assurance may be a burden for the worker trying to regain unescorted status, the NRC believes that burden to be justified in light of the public health and safety interests that this rule addresses.

12.5.3 i Comment: Two commenters recommended that, where there is no evidence of substance dependency, the worker should be returned to his or her regularjob upon a determination that the worker is able to perform work safely. Where the worker is found to be substance-dependent, the worker should receive inpatient treatment and, upon successful completion of the tmatment, be returned to work as long as he or she is able to remain unimpatred. (letterNumbers: 2;308) t f Resoonse: The NRC believes that future work assignments of a worker l

following mmoval under the fitness-for-duty policy should be determined by licensee i management. Section 26.27, therefore, provides that: " Plans for treatment, follow-up, and futum employment shall be developed, and any rehabilitation program deemed appropriate must be initiated as appropriate, during the suspension period."

12.5.4 Comment: One commenter believed that the rule should not require the l automatic restoration of access of a person who has completed a 20- to 30-day rehabilitation after a first confirmed positive test. The rule should allow the licensee to withhold access for an additional period of time until the licensee can feel comfonable with the worker's reliability. (Meeting Comment: M-1.126)

Response: The rule does allow the licensee to withhold access for an additional period of time or to dismiss the employee.

I2.5.5 Comment: One commenter argued that it is virtually impossible to verify abstinence from drugs over the three year period required by Section 26.27(b)(3) [now Section 26.27(b)(4)] and that it should be necessary to have an EAP review the proposed treatment before the worker is permitted to regain unescorted access. (Letter Number:

271)

Resoonse: The means to be used to verify abstinence from drugs over the three year period will be determined by licensee management. The difficulty of verifying abstinence must be weighed against the very important safety interests that this requirement 12-13 1

l I

is meant to address. While the NRC will not require it in this rule, it would seem appropriate to have EAP review during the access reinstatement process.

12.5.6 Comment: One commenter recommended that the unescorted access of an individual participating in an EAP should be revoked. Consideration of reinstatement of unescorted access should be given upon successful completion of the treatment program and enrollment in an after-care schedule. (Letter Number: 19)

Resnonse: Given the wide range of non-safety-related masons for workers being admitted to Employee Assistance Programs, there need not be a blanket requirement )

that all workers who participate in such programs have their unescorted access status revoked. Section 26.25 does provide that EAP staff shall inform licensee management when a determination has te:n made that any individual's condition constitutes a hazard to

' himself, herself, or others. When such a determination is made, the licensee should make a {

decision regarding the worker's unescorted access that is appropriate to the circumstances.

)

12.5.7 i '

Comment: One commenter stated that if an independent retest of a positive test result resulted in a negative test, that the worker be reinstated immediately and be i reimbursed for the cost of the test. (Letter Number: 370)

Resnonse: Samples taken after the initial positive tests may not be mpresentative of the condition existing at the time of the initial sample. Tests on any split samples under control of the licensee may be considemd by the licensee in verifying the positive test msult. The NRC believes that samples under control of the individual being tested are not collected, controlled, or tested under forensic standards and, therefore, l should not be given consideration.

12.5.8 Comment: Two commenters asked for clarification concerning the phrase

" initial granting of unescorted access" for contractors. They wanted to know if each time the contractor returned after having his " badge pulled," he would have to be retested.

(Meeting Comments: M-1.104;M-1.109) -

Response: The NRC believes that, when a contractor employee is removed from coverage under the scope of the rule, access must be re-established including compliance with the chemical testing provisions. However, the NRC will consider proposals from licensees on a case-by-case basis as to ways to simplify the testing provisions of contractor or vendor personnel who require rebadging several times during a year, or are on site for several brief periods.

12.6 Follow-un Testiny Commenters raised issues regarding the frequency of follow-up testing and the manner in which it is administered.

I2.6.I Comment: Several commenters believed that the frequency and extendcd duration of follow-up testing of a worker who has regained unescorted access is 12-14

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, objectionable. Other commenters recommended that the probationary period for follow-up testing be shortened from three years to one year and that the testing be done at  !

unannounced intervals at a more frequent rate during the first three or four months of that period. (LetterNumbers: 246;269;273;329;330)

Resoonse: The NRC believes that follow-up testing must be sufficiently frequent and extended to ensure that a worker who has regained access will not pose a  ;

safety threat to nuclear operations. The Commission has decided to amend Section 26.27(b)(4) by requiring follow-up tests at least once every month during the first four months and at least every three months during the remainder of the three-year testing period. This change was made in recognition of research findings that indicate that recidivism is most likely during the first 90 days following treatment. See: NUREG/CR-5227, Chapter 7.

12.6.2 Comment: One commenter believed that the decision of when to test a worker who has returned to work following rehabilitation should not be mandated by the rule but instead be left up to the employer. (letter Number: 307)

Resoonse: The NRC believes that the follow-up testing required by Section i 26.27(b)(4)is the minimum required to ensure the continued safety of nuclear operations and has, therefore, mandated these measures. Employers may adopt more stringent standards at their own discretion.

12.6.3 Comment: One commenter recommended that the words "which includes successfully completing a chemical test" be added after the word " assurance" in Section 26.27(b)(2). Such wording would require that a worker testing positive for the first time would be retested before returning to duty. The commenter believed that such a requirement is necessary because there would be no assurance that "EAP assessment and counseling" would have had any significant impact on a substance abuse problem during the 14-day period. (Letter Number: 306)

Resoonse: Licensees may determine that successful completion of a chemical test should be included as a means of achieving satisfactory management and medical j assurance of the worker's fitness to resume duties covered by this part after a first 1 confirmed positive test result. The NRC expects that this would be the normal practice for J those returned to duty. j 12.6.4 i

Comment: One commenter asked whether workers who have previously been denied access prior to the issuance of the final rule would be required to enter follow-up

],

I testing after the effective date of the rule. (Letter Number: 354)

Resoonse: A strict reading of Section 26.27(b)(4) would indicate that such a worker would not be required to enter follow-up testmg pursuant to this rule. The NRC ,

does, however, encourage licensees to require such follow-up testing when granting or i reinstating unescorted access to workers who have previously been denied access for j substance abuse reasons prior to the issuance of this rule.  !

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12.6.5.

Comment: One commenter was in favor of follow-up testing for workers who have completed rehabilitative treatment for drug or alcohol abuse. (Letter Number: 272)

Response: The NRC rule does require unannounced follow-up testing for

- personnel reinstated after treatment in msponse to a positive test result.

12.6.6 Comment: One commenter recommended that Section 26.27(a) explain exactly -

what an " appropriate follow-up testing program" should entail. (Letter Number: 377)'

Resoonse: Given the wide variety of potential personal circumstances for which follow-up testing programs will be created, the NRC cannot prescribe exactly what an l appropriate testing program should entail. The details of such follow-up testing programs

- must be tailored to fit the particular circumstances ofindividual workers.

12.6.7:

1 Comment: One commenter requested that follow-up testing be treated as an i explicit exception under the definition for " unannounced testing." The commenter pointed out that the procedures that determine follow-up testing generally preclude the use of .,

. random number generation. (Letter Number: 317) q j

Resoonse: Follow-up testing is treated separately in this rule; it must be unannounced and should be administered at random periods and times to be unpredictable.

12.6.8 i

)

Comment: One commenter stated that the phrase "previously identified" should )

be deleted from the definition for " follow-up testing," because an employee should be ]

abstaining from all drugs, and not just those previously identified. (Letter Number: 330)

Resoonse: The NRC concurs and has changed the rule accordingly.

12.6.9 ',

Comment: One commenter explicitly agreed with Section 26.27(b)(3) [now Section 26.27(b)(4)] requirement for unannounced follow-up testing when a worker's access is reinstated under the provisions of this rule. (Letter Number: 342)

Resoonse: Follow-up testing will be administered on an unannounced basis to j verify continued abstinence from the use of substances following a confirmed positive test  !

result. 1

)

12.7 Other Issues i l

Other issues related to the sanctions provided in the proposed rule were also raised by several commenters.

12-16

12.7.1 Comment: Several commenters believed that the requirements of Section 26.27(b)(3) [now Section 26.27(b)(4)] duplicate requimments in the access authorization program. They note that the industry is developing guidance to supplement the EEI Guide to Effective Drug and Alcohol / Fitness-for-Duty Policy Development to assist in uniform implementation of the final fitness-for-duty rule. Further, some of these commenters believed that any previous positive test should be put on the worker's permanent record; that any subsequent positive test, even while working for different employers should be considered a second offense; and that a worker should get temporary access authorization during the " suitable inquiry" required by Section 26.27(a). (Letter Numbers: 264;275; 298; 317;326; 343. See also subsections 3.5.23 and 3.5.24.)

Resnonse: Because fitness-for-duty and access authorization concerns overlap to a certain extent, there will undoubtedly be some duplication between this rule and the access authorization program with respect to fitness-for-duty matters. The requirements of this rule will control in such cases of overlap. The " suitable inquiry" requirement of Section 26.27(a) and the coverage of"any subsequent confirmed positive test" in Section 26.27(b)(2) should addmss the commenters'second point. When a worker is initially granted unescorted access, the licensee will have the responsibility to determine whether that person has ever previously tested positive for substance abuse. A first confirmed positive test should be discovered at that time. According to Section 26.27(b)(2) any subsequent positive test shall result in removal frem unescorted access for a minimum of three yean;. This is the case even though each confirmed positive test may have occurred while working for different employers. In response to the commenters' final point, Section 26.27(a) has been amended to provide for temporary access during the suitable inquiry.

12.7.2 Comment: One commenter recommended that Section 26.27(b)(3) [now Section 26.27(b)(4)] be amended to apply not only to workers hired by licensees but also to contractor personnel. (letter Number: 349)

Resoonse: The comment has not been adopted because the NRC believes the 4 comment's intent is already covered by the rule. Section 26.23(a)(2) requims that j contractors not assign their employees who have a history of a fitness problem without the i knowledge and consent of the licensee. The NRC expects that the licensee will determine whether or not to grant unescorted access based on criteria that, at a minimum, meet Section 26.27 requirements.

12.7.3 Comment: Several commenters recommended that the words "up to and including dismissal" be added to the second sentence in Section 26.27(b) to make clear that the licensee is free to discharge an employee if that is appropriate. (Ixtter Numbers: 264; 275;298;300;306;326;331;343. Meeting Comment: M-1.137. See also subsections 1 3.5.23 and 3.5.24)  !

I Resnonse: Whether a worker should be dismissed in the circumstances covered by Section 26.27 is within licensee management premgative and need not be referenced in this section.

12-17

12.7.4 Comment: One commenter recommended that Section 26.27(b)(1) [now Section 26.27(b)(2)] should not limit determinations of drug abuse to those that are detected by testing. For example, observed sale of drugs should serve as a basis for licensee action, even though the seller may not test positive for use at the time. (Ixtter Number: 375)-

Resoonss: Section 26.27(b)(3) does mandate licensee action upon the observed sale ofillegal drugs while within a protected area. Furthermom, licensees do have the prerogative to impose stringent sanctions if a worker is observed selling illegal drugs off-site.

12.7.5 i

Comment: Several commenters recommended that Section 26.27(c) be  !

amended so that licensees could have the discretion to consider a " resignation prior to removal for violation of company policy" following a refusal to provide a specimen for  ;

testing as a resignation without prejudice. (Letter Numbers: 267; 273;329) i Resoonse: The N'RC has chosen not to follow this recommendation.

Resignations in these circumstances are a sufficiently serious matter to be considered I removals for cause in all cases.

12.7.6  !

i Comment: Several commenters recommended that the words " Lacking any other evidence to indicate the use, sale, or possession ofillegal drugs on-site," be deleted

' frcan Section 26.27(b)(1) [now Section 26.27(b)(2)] because it is immaterial for purposes {;

of tMs paragraph to discuss where the drug use occurred. (Letter Numbers: 264; 275; 298;343; 349; 375. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC has decided not to delete this wording because,if there is j evidence that the confirmed positive test was the result of "the . . . use . . . of illegal drugs  !

while within the pmtected ama," the licensee may have to comply with Section 26.27(b)(3) l rather than with Section 26.27(b)(2). j 12.7.7 Comment: One commenter believed that licensees should be able to follow their ,

own particular policies so long as their implementing denial of access or invoking l termination is the same or more severe than described by the HHS Guidelines. (Letter '

Number: 19)

Resnonse: The rule does maintain the appropriate discretion that licensees have regarding access and termination policies. Section 26.27(b), which sets forth appropriate denial of unescorted access measures, provides that : "Nothing herein shall prohibit the licensee from taking mote stringent action." Matters of termination are within the scope of licensee employment relations and are not dealt with in this rule.

12-1 8

f 12.7.8 Comment: One commenter believed that the overall impact of Section 26.27 is to " black ball" an employee removed from access under this rule from any future work at a ,

nuclearplant. (LetterNumber: 323) 1 Resoonse: De NRC does not believe that a worker removed from access to protected areas because of the requirements of this part will necessarily be eliminated from consideration for regaining that status at some futum time. Nuclear power industry workers must realize, however, that the consequences of abusing . drugs or alcohol while holding the unescorted access status must be equivalent to the gravity of the threat to safety that this substance abuse cmates. I 12.7.9

. Comment: One commenter recommended that the words "during such suspension period" be deleted from Section 26.27(b)(1) [now Section 26.27(b)(2)]

because plans may be developed after the suspension period based upon a person's response to his or her situation. (Letter Number: 330)

Response: The wording of Section 26.27(b)(2) has not been changed because the section does not preclude the further development of plans for treatment after the suspension period.

12.7.10 Comment: One commenter believed that the term " satisfactory medical assurance" in Section 26.27(b)(3) [now Section 26.27(b)(4)] is vague and that appropriate acceptance criteria should be included to clarify this requirement. (Letter Number: 373)

Resoonse: The NRC believes that " satisfactory medical assurance" cannot be usefully specified further due to the wide variety of different types of medical assurance that would be adequate to demonstrate abstinence from drugs on a case-by-case basis.

12.7.11 Comment: One commenter recommended that Section 26.27(c) be amended to (1) make a worker's " refusal to provide a specimen for testing and resignation prior to removal" a violation of this rule rather than a violation "of company policy" and (2) make such a refusal "a subsequent confirmed positive test in accordance with Subsection 26.27(b)(1)" [now Section 26.27(b)(2)] rather than a " removal for cause." (Letter Number: 330)

Resoonse: Refusal to provide a specimen for testing and resignation prior to rem. oval will remain as a violation of company (fitness-for-duty) policy. These regulations apply to licensees and, strictly speaking, such an action on the part of a licensee's employee would not be in" violation" of the regulation. The NRC believes that making such a refusal "a subsequent confirmed positive test in accordance with Subsection 26.27(b)(2)" would be an unnecessarily mstrictive provision and has chosen not to do so.

12.7.12 Comment: One commenter recommended that the words "and future employment" be deleted from Section 26.27(b)(1) [now Section 26.27(b)(2)] because, 12-19

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while mental health workers are experts in the formulation of treatment and follow-up, they i

. are not able to predict future relapse with an acceptable degree of scientific accuracy to be sufficiemly rehable in determining the future employment of workers. (Letter Number:

317)

Besoonse: Plans for future employment should be developed by licensee management. He advice of EAP personnel should be at least part of the basis for such determinations.

-12.7.13 Comment: One commenter asked the Commission to define more specifically what the word " determined" means in Section 26.20(d) which deals with actions to be taken by the licensee when workers are determined to have been involved in the use, sale, or possession ofillegal drugs. (Letter Number: 340) i 1

Resoonse: In light of the purposes of this rule, the word " determined" as used in Section 26.20(d) should be treated with flexibility in the interests of preserving the safety of the nuclear operations. Licensees should be pmpared to take the appropriate, predesignated actions when there are reasonable grounds to believe that an employee, contractor, or vendor is or has been involved in the proscribed activities.

12.7.14 Comment: One commenter predicted that the rule would cmate a problem because there may not be enough jobs outside the protected area for people who have tested positive and are not capable of having their access restored upon release from rehabilitation.

(Meeting Comment: M-1.127)

Response: The Commission recognizes that finding suitable work outside the protected area for people who have tested positive may potentially be a problem. It would, however, be a relatively minor problem in light of the need to accommodate the safety needs of nuclear operations. The NRC expects the provisions of the rule to effectively deter most drug use and most workers who have completed treatment will have their access restored. Funhermore, licensees will probably take more stringent action particularly with those testing positive a second time. Therefom, the number of workers not capable of having their access mstored should be small.

12.7.15 Comment: One commenter asked what recourse the worker will have should test usults be confirmed positive from prescription or over-the-counter drugs. (Letter Number: 35)

Resoonse: Section 2.9 of the NRC Guidelines provides for review of prescription medication usage as well as an interview of the tested worker by the Medical Review Officer. This provision should safeguard against workers being subjected to unjust determinations because of prescription and over-the-counter drug usage. Fitness-for-duty determinations msulting from confirmed positive test results from prescription or over-the-counter drugs will also be appealable under Section 26.28.

1 12-20

l 12.7.16 Comment: One commenter proposed that the term " nuclear power plant" should be replaced with the term " licensed facility" in the first sentence of Section 26.27(a).

(LetterNumber: 330)

Resoonse: Because the NRC regulates other " licensed facilities" in addition to nuclear power plants, and the rule is meant to apply only to nuclear power plants at this time, the proposed wording change has not been adopted.

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f 13.0 EMPLOYEE ASSISTANCE PROGRAMS The commenters raised several issues associated with the provisions in the proposed rule for employee assistance programs (EAPs). A number of commenters questioned the scope of EAP services, or requested clarification as to whom EAP services should apply. Other commenters expressed concern mgarding the conflict of EAP confidentiality requirements and access considerations. Questions related to EAP certification standards and personnel qualifications were also raised. Several other issues related to EAPs were raised by the commenters.

13.1 Scone of EAP Services A number of commenters had questions conceming the scope of EAP services, and to whom the licensee's EAP services would apply.

13.1.1 Comment: A number of commenters expressed support of EAP services and rehabilitation as effective means of combatting fitness-for-duty problems in the workplace.

One stated that the licensee should not be required to pay for these services. Another stressed the importance of having worker representatives involved in establishing the EAP program and urged the NRC to include such a provision in the rule. One commenter stated that contractor personnel should have access to an EAP. Another commenter stated that the licensee should pay the cost of the EAP and the licensee and contractors should subscribe to an insurance fund that would continue to offer wage and benefit protection during the use of the EAP. (LetterNumbers: 2;6;32;257;260;263;273;295;307;328;329;356; 370)

Resnonse: The NRC concurs that EAP services are an important safeguard against the development of fitness-for-duty problems and requires that they be available.

The NRC strongly mcommends that licensees involve employee and union representatives in the establishment of EAPs. Because unions often provide medical benefits to their members, designing the EAP to coordinate with drug and alcohol abuse treatment programs that will be paid for by employee union benefits can significantly improve program effectiveness. However, licensees and contractors are not required under the current rule to i provide resources for the rehabilitation of any employee, although the NRC recognizes that the provision of these resources can only improve the effectiveness of either the licensee's or contractor's fitness-for-duty program.

13.1.2 Comment: A number of commenters recommended that licensee EAP services be made available only to regular full-time licensee employees. The licensee should not be required to provide these services to contractor employees. Also, several commenters stated that her.nsee employees should be described as regular employees rather than permanent employees. (Letter Numbers: 252;264;269;275;278;281;298;303;306; 317;326;329;330;331;339;340;343;349;353;358;371. See also subsections 3.5.23 and 3.5.74.)

Response: The NRC believes that the current wording of the rule adequately expresses its intent with regard to licensee and contractor employees. See: Final Rule, Section 26.25; NUREG/CR-5227, Chapters 4 and 6.

13-1

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13.1.3 l Comment: Two commenters stated that licensee EAP services should be made available to all licensee, contractor and vendor personnel. This will ensure that every worker has the opportunity to utilize EAP services to deal with individual fitness-for-duty problems. (LetterNumbers: 302;368)

Resoonse: As currently stipulated in the rule,it is the responsibility of each licensee to ensum that all licensee employees have access to EAP services and that contractor programs which are relied on have EAPs which meet the requirements of the rule. Contractor employees covemd by the licensee's testing program may be provided EAP services at the licensee's option and consistent with the particular contractual arrangements.

1 13.1.4 '

Comment: Several commenters asked whether licensees who do not have an EAP for contractors would be required to have one. (Letter Number: 329. Meeting l Comments: M-1.61; M-1.111; M-1.174.)

Resoonse: As currently stipulated in the rule, it is the msponsibility of each licensee to ensure that all licensee personnel have access to EAP services. This provision does not require licensees to provide EAP services to contractor or vendor personnel, but only to ensure that contractors and vendors whose programs are relied on have EAPs which meet the criteria of the rule.

13.1.5 Comment: One commenter recommended that licensees provide the EAP services to self-referrals prior to a scheduled drug test or a test failure. Licensees should )

not have to provide the service following a positive test. (Letter Number: 19) l Resoonse: The current rule does not require licensees to offer an opportunity for rehabilitation, to provide job security, or to provide the resources for rehabilitation to any employee. Rather, it requires that workers who test positive be assessed. However, because many nuclear power plant workers possess unique skills as a result of years of  !

specialized training (e.g., reactor operators), terminating these employees for positive drug i or alcohol test results would result in the loss of their knowledge and experience to the l industry. Temporary transfer to non-safety-re!ated jobs while they undergo treatment and ,

then remstating their unescorted access authorizations when they demonstrate a successful I treatment outcome would preserve the resources these employees represent. In fact, a I rehabilitated employee who is highly trained and experienced may be more fit for duty than a less experienced employee who has never used drugs. The opportunity for treatment (at the option of the licensee) may promote safety by ensuring that the labor pool for highly skilled nuclear power plant workers is not unnecessarily diminished.

13.2 E AP Confidentiality and Access Considerations A number of commenters remarked on the perceived conflict of EAP confidentiality requirements and access considerations.

13-2

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13.2.1 l 1

Comment: Many commenters recommended that EAP personnel should be required to inform licensee officials of all instances of potential hazard, not just those resulting from self-referring individuals. (Letter Numbers: 264;275;298;329;339;358; 371; 376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: In response to commenter concerns regarding EAP reporting i

obligations, the NRC has revised the proposed rule in Section 26.25 to specify that all workers, including self-referrals, who receive EAP services must be reported to appmpriatelicensee management officials when a determination has been made that an individual's condition constitutes a hazard to himself or herself or others (including those who have self-referred). See: FRN, Supplementary Information, Section 12.2.

13.2.2 Comment: Several commenters stated that EAP personnel should inform the licensee of all instances of a safety risk, and not just those from self-referring individuals.

Two of the commenters suggested that the last sentence of Section 26.25 be deleted, because it unnecessarily duplicates information in the first sentence.(Letter Numbers: 271; 343;371;375. Meeting Comments: M-1.125; M-1.132.)

Resoonse: The NRC has revised the rule in Section 26.25 to clarify its intent that the EAP staff shallinform licensee management officials when a determination has been made that any individual's condition constitutes a hazard to himself or herself or others (including those who have self-mferred). See: FRN, Supplementary Information, Section 12.2.

13.2.3 Comment: A few commenters raised the concern that EAP repo[ ting requirements governing the disclosure ofindividuals who pose a potential hazard to plant operations might undermine the effectiveness of EAP services. The major attraction of the EAP, as currently constructed, is that an individual with a problem can solicit help without fear that his position or career will be jeopardized. (Letter Numbers: 278;323. Meeting Comment: M-1.130.)

Resoonse: Section 26.25 of the rule stipulates that confidentiality shall be extended to all personnel receiving assista: ce from the EAP, except where safety considerations prevail. EAP staff shall inform licensee management officials when a determination has been made that any individual's condition constitutes a hazard to himself or herself or others. The NRC does not anticipate that EAP reporting obligations will affect employee self-referral rates given that substance abuse professionals' ethical standards currently require that they take constructive action when they have reason to believe that an individual constitutes a hazard. See: FRN, Supplementary Information, Section 12.2.

13.2.4 Comment: One commenter stated that employers should be required to make adequate provisions in their EAP to maintain the strictest confidentiality about the problems of employees seeking treatment. Therefore, there should be more discussion regarding what constitutes the safety consideration exception of the EAPs confidentiality requirement.

(Letter Number: 273) 13-3

Resnonse: The EAP requirement of Section 26.25 specifies that the staff of such programs are to provide confidential assistance except where safety considerations must prevail. The NRC believes that the plain meaning of these terms is sufficient for this rulemaking and that further clarification in the rule is not required. See: FRN, Supplementary Information, Section 11.2.4.

13.2.5 Comment: Several commenters stated that the NRC must recognize the diffemnce between company mandated discipline and employee voluntary self-referral to an EAP. (LetterNumber: 329) -

Resoonse: Section 26.27(a) exempts self-referral for treatment from being repotted as an adverse fitness-for-duty determination. Therefore, the voluntary self-referral of an employee to an EAP shall be distinct from company mandated discipline.

13.2.6 Comment: One commenter expressed concern about disclosure by the internal EAP of any mention by the patient of previous or pmsent alcohol or drug use not specifically included in the disclosure form. It is felt that following the first such disciplinary case, employee use of the EAP would be drastically curtailed, thereby negating the intent and purpose of the program. (Letter Number: 341)

Resoonse: The fitness-for-duty rule requires that confidentiality be extended to all employees participating in EAPs, except where safety considerations must prevail. EAP personnel are required to mport to licensee management officials only when it has been determined that an individual's current condition constitutes a hazard to himself or herself or others.

13.2.7 Comment: One commenter expressed concern that the proposed rula does not ban disclosing the participation of an individual in an EAP from one licensee to another licensee. This could be especially detrimental if the reason for EAP participation (i.e.,

depression due to divorce) were not also disclosed. (Letter Number: 330)

Resnonse: Section 26.29(b) of the final rule permits disclosure of personal information to other licensees or their authorized repmsentatives legitimately seeking the information as required by this part for unescorted access decisions as long as the licensee has obtained a release from the current or prospective employee or contractor personnel.

However, Section 26.27(a) exempts self-referral for tmatment from being reported as an adverse fitness-for-duty determination. The NRC expects that confidentiality will be maintained for self referrals.

13.2.8 Comment: One commenter stated that, in order to attain a drug fme workplace, even self referral to the EAP for drug abuse should create an access consideration.

(Meeting Comment: M-1.128)

Resnonse: The NRC believes that the stipulation regarding EAP staff reporting obligations is adequate to identify those individuals receiving EAP assistance who require immediate access authorization reconsideration.

I 13-4

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13.2.9 Comment: One commenter stated that the allowance for confidentiality of self referrals to Employee Assistance Programs (EAPs) does not allow responsible others, such ,

as utilities and contractor organizations, to ensure that workers have no history of drug treatment. (LetterNumber: 58)  !

Resoonse: The NRC mcognizes that there is a connection between the EAP and j access authorization requirements. Under Section 26.25, EAP staff will provide i confidential assistance except where safety considerations must prevail and when the EAP  !

counselor believes that a worker's condition poses a hazard to himself or others.

Otherwise, voluntary self-referrals to EAPs are treated confidentially, and are not reported to management. Therefore,information conceming self-referrals would not be available o

from previous employers covered under this section. However, fitness-for-duty problems  ;

that are serious enough to warrant termination of employment will probably come to the j attention of management, who would then be able to supply this information to future  ;

employers. The NRC is satisfied that them is not an inconsistency in the EAP, suitable inquiry, and access authorization requirements and consequently no changes are made to  ;

the mle.

l 13.3 EAP Certification Sinndards and l'eponnel Ounlifications

' Commenters raised several questions related to EAP certification standards and personnel  !

qualifications.

13.3.1 Comment: Two commenters recommended that EAP personnel should be  ;

required to be certified and licensed counselors. (Letter Number: 352. Meeting Comment: M-1.129.)

Resoonse: The NRC views the staffing oflicensee EAPs as a management  !

decision best left in the hands ofindividual licensees. HHS and at least one professional association have developed guidelines for the development of EAP programs that suggest qualifications for EAP staffs that could be considered for adoption by licensees. Most EAPs are staffed by professional social workers or occupational health specialists, many of whom are certified at the state level to provide alcohol and dmg abuse counseling. In light of this industry practice, the NRC does not feel compelled to stipulate specific EAP staffing  ;

requirements. See: " Guidelines for the Development and Assessment of a Comprehensive  !

Federal Employee Assistance Program,".NationalInstitute on Drug Abuse (DHHS),1988; ,

NUREG/CR-5227, Chapter 6.  !

l 13.4 Other Issues i I

Other issues related to the EAP provisions in fitness-for-duty programs were raised by a numbt.r of commenters.

13.4.1 Comment: A few commenters stated that EAP services should not be regulated under the proposed NRC rule in any manner, and would be better addressed by the utilities themselves. One commenter stated that the provisions of the rule do not allow adequate flexibility in the nature and provision of EAPs. Another stated that the NRC does not have 13-5

sufficient expertise to regulate in the ama of EAPs and has not established a clear basis for evaluating the adequacy of the licensee's EAP. Finally, one commenter stated that making the EAP part of the NRC regulations will decrease its use by employees because of fears of confidentiality. (LetterNumbers: 300;330;356)

Resnonse: The NRC believes that EAP services will pmvide a valuable tool in combatting fitness-for-duty problems in the nuclear power industry. The NRC believes that the provisions of the rule provide adequate flexibility to address individual utility needs, while ensuring the protection of employee confidentiality.

13.4.2 .

1 Comment: One commenter stated that the rule should only be concerned with detecting illegal dmg use and provisions for drug education and EAPs go beyond the I NRC's regulatory needs. (Letter Number: 300) i l 1 Resnonse: The NRC believes that drug cducation and EAPs significantly contribute to deterrence, and thus has retained provisions for both in the rule.

1 13.4.3 a Comment: One commenter stated that EAPs can help detect substance abuse problems, but that the use of medical reviews at the commenter's utility plays much the same role. EAPs cannot, alone, assure a drug free workplace. (Letter Number: 329)

Resnonse: The NRC agrees that the commenter's program has merit, and encourages licensees to consider such approaches. The NRC is also in full agreement with the commenter that a range of program elements is necessary in order to assure a drug free workplace.

l 13.4.4 Comment: One commenter stated that " Rehabilitation" and " Employee Assistance Program" should not be used interchangeably as they are two separate processes. (IxtterNumber: 329)

Resnonse: The NRC views alcohol and drug rehabilitation treatment as an effective component of an EAP. Referral to mhabiliWion services represents only a small segment of the total services available through most EAPs. EAPs have generally been understood as " systems which provide pmfessional care to employees whose job performance is or may be adversely affected by alcoholism, drug dependence, emotional problems, family difficulties, legal issues, eating disorders, and similar personal problems that not only threaten the employees effectiveness on thejob, but also tend to trigger a whole mnge of health problems." The NRC does not use these terms interchangeably.

I3.4.5 Comment: One commenter recommended that the term " constitutes" in Section 26.25 be changed to "may constitute." Such a modification would assist in clarifying--

through a Federal regulation--the breadth and scope of an EAP counselor's reporting obligation, which is now subject to conflicting interpretations. (Letter Number: 317)

Resnonse: The NRC believes that the current wording is adequate to communicate its intent in this matter. i l

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-I l 13.4.6 Comment: One commenter suggested Section 26.20(b) be deleted as the subject .

of available employee assistance programs is covered in Section (c). (Letter Number:  !

300)

Resoonse: The NRC disagrees with the commenter's statement that Section 26.20(b)is redundant and unnecessary. The Commission believes that it is important that licensees establish and implement written policies and procedures to ensure that all personnel are aware of the programs available to employees desiring assistance in dealing ,

with drugs, alcohol, or other problems that could adversely affect the performance of i activities within the workplace.

13.4.7 Comment: One commenter observed that EAP referrals may be of several types including "self," after a for-cause incident, directed by medical : .aff, from a medical clarification examination (MCE), or after a positive test. (Lette Number: 329)

Resoonse: The NRC concurs with the commenter's statement that EAP referral may result from a variety of sources.

13.4.S Comment: One commenter requested clarification regarding records of employees denied access or referred to the EAP for alcohol abuse or mental stress rather than drug abuse. The commenter asked about the length of time the records must be maintained, record-keeping requirements, and provision of the records to other licensees.

(Meeting Comment: M-1.134)

Response: The NRC has concluded that records of personnel actions related to fitness-for-duty concerns must be retained at least five years and has made the appropriate modifications to Section 26.71. Self-referrals to the EAP would not be recorded, in themselves, as a personnel action; this is reflected in a change to section 26.27(a). The provision of this information to other licensees should be limited to cases where there is a signed release form and where the information pertains to previous denial of access. See:

FRN, Supplementary Information, Sections 11.2.1 and 11.2.5.

13.4.9 Comment: One commenter stated that he does not concur with NUMARC's proposed wording on the EAP section, preferring that which is found in the proposed rule.

(Letter Number: 349)

Response: The NRC has revised the proposed rule in Section 26.25 to clarify that the EAP staff shall inform licensee management officials when a determination has been made that any individual's condition constitutes a hazard to himself or herself or others (including those who have self-n:fened). See: FRN, Supplementary Information, Section 12.2.

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1 J.4.10 Comment: One commenter stated that the EAP section in the proposed rule is -

too brief and that the rule is designed mom for the detecting and penalizing of workers instead c,f providing such assistance. (Letter Number: 246)

Resnonse: Comprehensive guidance on developing EAP programs has been published by HHS and at least one other professional association. The NRC's general objective in designing a fitness-for-duty rule is to provide reasonable assurance that nuclear power plant penonnel are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way affects their ability to safely and competently perform their duties. The NRC agrees with this commenter that it is highly concerned about detecting substance abuse problems. It is neither the NRC's intent nor it's responsibility to punish any worker for a substance abuse problem. The NRC's only concern is for protecting public health and safety. The NRC believes, however, that EAP services can be instmmental in preventing a substance abuse problem from developing. With this objective in mind, the NRC requires that each licensee ensure that all licensee personnel have access to EAP services and that contractor and vendor programs which are relied on have EAPs which meet the criteria of the rule. See: NUREG/CR-5227, Chapter 6.

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I 13-8 i

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14.0 INDIVIDUAL RIGHTS A number of commenters raised issues concerning the effects on individual rights of the proposed fitness-for-duty rule. Several commenters expressed concern regarding the i confidentiality of mcords and results. A number of commenters sought clarification on l appeals and grievance procedures, personal access to fitness-for-duty records, and the use i of specimens for other purposes. Other issues related to individual rights were also raised l by a number of commenters, including responses to the Commissioners' questions regarding the protection ofindividual rights.

I-14.1 Confidentiality of Records and Results l'

Several commenters expressed concem regarding the confidentiality of records and results.

Other commenten also recommended the adoption of certain measures to assure the confidentiality of records and results.

l 14.1.1 l Comment: Several commenters believed that Section 26.70(b)(2) as proposed would not sufficiently protect the confidentiality of personal information collected pursuant to this rule. Some commenters objected to allowing NRC representatives to inspect, copy, i and take away contractors' fitness-for-duty documents. Others would except personnel l records from the section's coverage or would favor allowing NRC representatives the right l to inspect but not to copy or take away copies of fitness-for-duty documents. Another l commenter believed that this section would negate any chance for confidentiality of personal information because, once in NRC possession, such personal information could be obtained under Freedom ofInformation Act requests. (Letter Numbers: 3;275;298; 326;340;349. See also subsections 3.5.23 and 3.5.24.)

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Resoonse: It is important that the NRC be able to evaluate the effectiveness of l licensees' fitness-for-duty pmgrams. The NRC believes that to perform this task, access to

! records, as described in Section 26.70(b)(2), is essential. The information gathered by the l NRC will be used to evaluate overall program effectiveness, and information about specific individuals will be obtained and evaluated only as necessary to achieve this end. The NRC does not believe that this use of records will unduly threaten the privacy ofindividual workers. The NRC notes that Exemption 6 of the Freedom ofInformation Act states that information that may be withheld from the public includes " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy."

14.1.2 Comment: Several commenters believed the rule does not sufficiently protect the confidentiality of medical and other personalinformation. One commenter recommended that medical information should be released only to health care professionals.

Another believed that not even the Medical Review Officer should receive confirmed positive drug test results. Still another commenter recommended that personal information should not be shared among licensees and contractors because pre-employment testing makes such sharing ofinformation unnecessary. Six commenters believed that the exceptions to the pmhibition of disclosure of personal information in Section 26.29(b) are too broad. Two of these objected to disclosure to appropriate law enforcement officials.

Another commenter objected to disclosure to NRC representatives. The fourth conunenter objected to the rule allowing disclosure to "those licensee personnel who have a need to 14-1

have access to the information in performing assigned duties" as being much too broad.

Two other commenters suggested limits on the natum of the information reportable under

' Section 26.29(b)._ One stated that test results should be mported only as positive or negative and with no indication of the metabolite or the value. The other commenter stated that Section 26.29 should require only mcords of positive tests be maintained by licensees.

(Letter Numbers: 3;19;263;267;273;310;323;358. Meeting Comment: M.1.23)

Resoonse: The NRC appreciates the concem of these commenters for the protection of the confidentiality of sensitive personalinformation. The Commission must, however, weigh this concem with the need to achieve and maintain a drug-free work place in the interest of public health and safety. The Commission believes that Section 26.29(b),

as amended, will constructively serve both these purposes. Also, licensee recordkeeping requirements for confirmed positive test msults am adequately defined in Section 26.71.

14.1.3 Comment: Many commenters submitted responses to the Commission's Discussion Question 5 regarding appropriate access to knowledge of unconfirmed initial drug test results. Some recommended that no one, not even the licensee, be notified of positive initial test results because confidentiality is lost once unconfirmed results are released to anyone. Another commenter believed that unconfirmed or confirmed results should not be released to anyone prior to final verification by the Medical Review Officer.

Several commenters recommended that only the worker and the testing laboratory personnel have access to unconfirmed results. Various commenters believed that only the worker, the worker's immediate supervisor, and the Medical Review Officer should have access. Other commenters recommended that access be confined to the immediate supervisor, the plant manager, and security or employee relations personnel. Another commenter would expand this access to senior management and labor relations personnel.

Several commenters suggested that them be procedures in place to make sure that there are

-no residual effects from unconfirmed positive tests. Sotae commenters recommended that licensees be allowed to deny access based on on-site preliminary test results. Two ,

commentes recommended the opposite. (Letter Numbers: 19;251;269;273;275:278; 281;290;298;303;308;310;315;316;326;347;349;358;367;370;376. See also subsections 3.5.23 and 3.5.24.)

Response: The NRC recognizes that there can be two types of initial test results !

produced by this program: results from initial semening tests conducted by licensees and

. results from initial tests performed at an HHS-certified laboratory. The NRC concurs that j there is a potential for abuse of positive test results from preliminary tests conducted by the licensee. These preliminary tests may not have the accuracy oflaboratory-conducted tests.

The final rule consequently limits access to the preliminary test results to the licensee's testing staff, the Medical Review Officer, the fitness for-duty program manager, and EAP staff when appropriate. Normally, access should not be denied on the basis of a screening test alone, llowever, the worker's interest in the confidentiality of those results must be weighed against the safety interest in allowing the licensee to take immediate and prudent action. Thus, if for some reason, initial test results cannot be verified or discounted within ten days, licensee management shall be notified so that appropriate action can be taken.

The NRC expects that beensees will assure that unconfirmed positive test results will not be l misused in any way.

1, 14.1.4 i Comment: One commenter strongly objected to Section 26.27(a) since it requires extensive inquiry into an employee's history, and gives any company or contractor 14-2 l

the right to obtain confidential information on individuals who were denied access or l

l-removed under the provisions of the rule. The commenter felt that this disclosure is a violation of the individual's rights and disreg trds the confidentiality requirements contained in the rule. (12tter Number: 273)

Resnonse: Section 26.27(a) does, to a certain extent, allow personal information to be exchanged among various parties. The NRC believes that this exchange ofinformation is an essential means for licensees to determine whether workers who are to be granted unescorted access are indeed reliable. It should be noted that the information that this section allows to be divulged pertains only to workers who have previously been denied unescorted access or removed under the provisions of this part.

14.I.5 Comment: Several commenters recommended that Section 26.29(b) be made applicable to contractors and vendon as well as licensees and that other licensees involved in an audit pursuant to Section 26.80 should also have access to the personal information.

These commenters also recommended that personal information be available for those making " access" decisions as opposed to " employment" decisions because employment is not within the Commission's purview. Other commenters recommended that this section stipulate that personal information can be made available to law enforcement officials only through established legal process. (Letter Numbers: 264;269;275;298;300;309;317; 326;330; 343; 347; 349; 376. See also subsections 3.5.23 and 3.5.24).

Resnonse: All these recommended changes have been made.

14.1.6 Comment: Several commenters submitted recommendations on the appropriate scope of access to confirmed positive results. Various commenters noted the great sensitivity of this information and recommended that extreme precautions are warranted in protecting its confidentiality. One commenter recommended that only the worker, the immediate supervisor, senior station management, and involved security personnel be granted access. Another commenterrecommended that only licensee higher management and the worker's union representative should have access to positive drug test results.

Another commenter recommended that only nuclear security officials and medical unit personnel have access to positive test results. A representative of the worker should have access only if authorized by the workerin writing. If the worker challenges the test result, this commenter further recommended that the licensee union relations personnel should be able to obtain access to the test results. Another commenter recommended that the disclosure of test results to law enforcement agencies should be prohibited. (Letter Numbers: 3;32;228;271;272;302;310;316. Meeting Comment: M-1.101)

Resnonse: Sections 2.9 and 3.1 of the ND.C Guidelines and Section 26.29(b) )

of the rule address these concerns. Section 2.9 provides that, following verification of the i positive results, the Medical Review Officer shall notify the applicable Employee Assistance Program and the licensee's management official empowered to recommend or take administrative action. Section 3.1 requires that HliS certified laboratories and the licensee's testing facility use and maintain test records "with the highest regard for individual privacy." Section 26.29(b) prohibits licensees and contractors from disclosing personal information, including confirmed positive results, except in certain enumerated circumstances. Among these is disclosure to "those licensee representatives who have a need to have access to the information in performing assigned duties.. ." Even with these safeguards,it must be borne in mind that the purpose of this rule is the assurance of the 14-3

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i safety of nuclear operations. Workers must be on notice that a confirmed positive test result is a serious and deleterious matter that must be made known to licensee personnel  ;

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. who are responsible for maintaining the safety of their plant's operations.

14.1.7. >

Comment: One commenter stated that sound laboratory and chain-of-custody procedures will ensure that workers' rights are protected. (Letter Number: 303)

Resnonse: The NRC concurs with this commenter and has incorporated these procedures into the NRC Guidelines.

14.1.8 Comment: One commenter asked whether Section 26.29(b) would require licensees to give law enforcement officials the results of all drug tests made at the site if such officials so mquested. (Meeting Comment: M-1.142)

Resnonse: The rule requires that results of testing be available to local law enforcement agencies un&; court order. The rule does not require that all test results be provided upon request.

14.1.9 Comment: One commenter asked whether a contractor administering its own fitness-for-duty program would be able to obtain from a licensee information about the potential drug use of a prospective employee in light of the Section 26.29(b) limitation of disclosure of personal information to "other licensees't seeking that information. (Meeting Comment: M-1.141)

Resnonse: The contractor would be able to obtain the information from the licensee in such a situation. It is the NRC's intent to provide for an efficient exchange of information among licensees, contractors, or vendors that will facilitate the making of informed decisions about the granting of unescorted access. To that end, Section 26.29(b) has been amended to allow the " authorized representatives" oflicensees to seek information required by this part for unescorted access decisions. The contractor mentioned in this comment would be considered an " authorized mpresentative" of the licensee in whos~5 plant the pmspective employee would work and would, therefom, be able to obtain the information.

14.1.10 Comment: One commenter stated that presently there are no means available to accomplish the requirement reganiing assignment of persons to contracted work who have previously been denied access e other nuclear power plants. Because individual companies maj have legal pru'o lems in mleasing such information, the INDEX system could be a means of information exchange or, attematively, a Federal agency could be designated to collect and distribute this type ofinformation to companies. (letter Number:

348)

Response: Although the development of automated systems to facilitate the collection of employment history data is encouraged, the NRC believes that it is not necessary for it to create a new information system to distribute information regarding workers' employment history.

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14.1.11 Comment: One commenter suggested that the confidentiality of all test files should be the responsibility of the fitness-for-duty administrative staff. (Letter Number:

019)

Resoonse: The NRC believes that the rule contains adequate safeguards to protect the privacy of workers, and that it is inappropriate for the NRC to dictate to licensees which licensee staff members should be responsible for ensuring that these safeguards are followed. While it is logical for this responsibility to fall on the fitness-for-duty personnel, licensees should have the prerogative of determining who will be responsible for this undertaking.

14.1.12 Comment: One commenter mcommended that a worker's personal history before enactment of the rule be considered so that a previous positive drug test would mmain on the record indefinitely and be considered in any subsequent actions. (Letter Number: 376)

Resoonse: There is nothing in this rule that would pmelude a licensee from considering a worker's previous positive drug test.

14.1.13 Comment: One commenter thought that the requirements concerning the testing of contractors and the sharing ofinformation between utilities were confusing. (Letter Number: 2)

Resnonse: The rule requims an exchange ofinformation between contractors and licensees that should alleviate this potential problem. Section 26.23(b) will require contractors to notify licensees if any of their employees who would be assigned to contract work have been denied access for violations of fitness-for4uty policy. Thus, if a contractor employee receives a positive test result from one licensee, the contractor will have the responsibility to notify any licensees for which the worker may subsequently work.

14.1.14 Comment: One commenter, referring specifically to the concerns of construction personnel but raising an issue pertinent to all nuclear power plant workers, asked whether a worker's union representative would have access to information from the testing laboratory following a positive test result. Also, if the worker is non-union, the commenter asked who could get the information from the testing laboratory. (Letter Number: 302)

Resnonse: Section 3.2 of the NRC Guidelines gives a tested individual the right, upon written request, to have access to such records. The individual, at his discretion, could provide this information to others. Unions are not considered a representative of the individual for this purpose unless specifically authorized by the individualin a particular case.

14-5

14.1.15 Comment: One commenter requested that a definition of" Release Form" be added to the mle as follows: " Release Form provides disclosure of specific information to be sought through a background investigation as well as criteria for access denial." (Letter Number: 335)

Resoonse: Section 26.27(a) specifies that fitness-for-duty information will be made available in response to an inquiry supported by a release signed by the worker. This is a standard practice, and the NRC does not believe that a definition or description of a release form is necessary.

14.1.16 Comment: One commenter recommended that rather than leave the potential l applicability of the Public Health Service's regulations on Confidentiality of Alcohol and i Drug Abuse Patient Records (42 CFR 2) up to individual licensees, the NRC should determine their applicability, inform the licensees, and make changes in Part 26 if appropriate. (LetterNumber: 309)

Resnonse: 'Ihe NRC believes that 42 CFR Put 2 has no relationship to the Commission's fitness-for-duty rule. Therefore, there is no need for the NRC to determine the scope ofits applicability. See: FRN, Supplementary Information, Section 18.2.5.

14.2 Anocals and Grievance Procedures I Several commenters sought clarification on appeals and grievance procedures. Other commenters also recommended certain measures to assure due process of appeals and grievance pmcedures in a fitness-for-duty program.

14.2.1 Comment: Many commenters submitted recommendations regarding the proposed Section 26.28 mquimment that licensees' appeals procedums "be consonant with fundamental principles of due process." Several mcommended that the elements of"due pmcess" be specifically defined. One commenter suggested that appeals procedures should melude the right to independently retest the specimen by a lab of the worker's own choice, the right to be represented by counsel or other repn sentative, the right to a hearing before an impartial tribunal, and the right to present evidence and cross examine witnesses.

Others would mquire that fitness-for-juty programs ensure that principles of due process, progressive discipline, and fairness app.y in all stages of the administration of discipline as well as guarantee that some satisfactory usolution will come about when an appeal is made. Other commenters took a contruy approach. They recommended that the reference to "due process" be eliminated and replaced with " fairness." Still other commenters recommended that the NRC should not require any specific elements to be part of the appeals process but instead leave that to be determined by individual licensees. (Letter Numbers: 251;263;271;273;275;281;298;302;306;309;323;326;330;339;343; 358. Meeting Comments: M-1.144; M-1.179; M-1.180. See also subsections 3.5.23 and 3.5.24.)

Restonse: Rather than referring to " principles of due process" as in the proposed rule, the Commission has decided to explicitly describe what the minimum appeals procedures are that would achieve the elementary fairness needed to meet that 14-6

standard. Therefore, the requirement for an opportunity for an independent review by an

[ impartial member of the licensee's staff has been added to the appeal procedure that rnust -

also provide notice and an opportunity for the worker to respond.

.14.2.2 Comment: Many commenters believed that contractors' and vendors' employees should not be covered by licensees' appeals procedure. Only one commenter recommended that contractors' and vendors' employees should be covered by licensees' appeals procedures. (Letter Numbers: 252;269;271;272;275;278;281;306;309;317; 326;330;331;339;340;343;349;358;368;376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC has revised the rule to specify that where contractors or vendors have programs that are relied upon by the licensees, any appeals are to be handled under these programs and not the licensee's. However, tests performed by the licensee on vendor or contractor personnel will be appealable under the bcensee's procedums.

14.2.3 Comment: Many commenters submitted their opinions as to whether the Commission should allow or mandate grievance procedures to be used to fulfill the Section 26.28 requirement for an appeals procedure. Many of these commenters recommended that licensee's grievance procedures should not be allowed as an appeals procedure. The potential for slow resolution of appeals and the dilution of collectively bargained agreements wem some of the reasons they cited. Several other commenters recommended that the rule should allow licensees to use grievance review procedures contained in collective bargaining agreements covering the bargaining unit of which the worker is a member. Still others recommended that the rule explicitly recognize that existing grievance procedures provided by non-union companies or provided to non-union workers can meet the Section 26.28 requirement. (Letter Numbers: 20;269;275; 281;326;330;331;338; 339;343;348;356;358;371;374;375;376. Meeting Comments: M .140; M-1.145; M-1.146. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Section 26.28 has been amended to delete the reference regarding the ui,e of grievance procedures for an appeals process. It should be pointed out, however, that existing grievance review procedures can, but need not be used to fulfill the requirement for an appeals procedure. Where it is appropriate to create s separate appeals procedure for fitness-for-duty determinations, licensees may do so. Also, existing grievance procedures provided by non-union companies or provided to non-union workers can meet the Section 26.28 requirement.

14.2.4 Comment: One commenter stated that prior to the invocation of sanctions following positive test results, the worker should have the right to discuss or explain the results with the licensee or contractor medical personnel. (Letter Number: 370)

Resoonse: The rule, as amended, does provide for a discussion between medical personnel and workers who have received positive test results. Section 26.27 requires removal from access following "a confirmed positive test." The Section 26.3 definition of" confirmed positive test" provides for evaluation of the confirmatory te.st by the Medical Review Officer. Section 2.9(b) of the NRC Guidelines requires that the Medical Review Officer review and interpret positive test results, and that alternate medical 14-7

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L explanations be examined. The evaluation by the Medical F view Officer could include conducting a medical interview with the worker as well as .eview of the worker's medical history and other biomedical factors. Section 2.9(c) further provides that, prior to making a final decision to verify a positive test result, the Medical Review Officer shall give the worker an opportunity to discuss the test results.

14.2.5 Comment: Two commenters responded that no further Commission directives on quality control measures or appeal procedures are necessary because licensees already have developed procedures that could be used in dealing with unconfirmed test results and the rule as proposed provides adequate quality control and privacy protection measures.

(Letter Numbers: 252,330)

Resnonse: The NRC believes that the quality control measures and appeal procedures in the proposed rule, and the procedures developed by licensees provide a high degree of quality control and privacy protection. However, the NRC also believes that a few additional measures are necessary. These privacy protection measures have been added to the rule as follows: (1) Section 26.24(d) has been modified to limit access to information about preliminary test results: (2) Section 26.27(a) has been modified to require a written release from an affected worker prior to the disclosme of certain information; and (3) Section 26.29(b) has been modified to include contract workers in its provisions for the protection of personal information. Comprehensive quality control .

measures are included in the newly added NRC Guidelines (Appendix A).  ;

I4.2.6 i l

l Comment: One commenter asked whether the rule would allow a licensee to discharge an employee who has brought an appeal under the appeals process mandated by Section 26.28 and whose appeal is still pendmg. (Letter Number: 251)

Resnonse: The rule would allow a licensee to discharge an employee while his or her fitness-for-duty appeal is still pending. The function of the appealis to review a positive drug or alcohol determination and conect it if found to be in error. Because the j appeal is a procedure to correct a record, it should be available to a discharged employee as l well as to a retained employee. l 1

14.2.7 )

1 Comment: One commenter believed that the Section 26.27(b)(1) sanctions state I a presumption of guilt without due process and, therefore, conflict with the Commission's l stated desire in Section 26.28 that the implementation of this rule be " consonant with l fundamental princinles of due process." (letter Number: 340) '

Resoonse: The sanctions and management actions provided by Section 26.27 to be taken by licensee management are both reasonable and necessary in light of the safety interests that they are meant to protect.

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14.2.8 Comment: One commenter recommended that the rule require that each licensee have a written, formalized appeals procedure that covers all employees, both union employees and non-urion employees. (Meeting Comment: M-1.143) 14-8

Response: The rule addresses the commenter's concern. Under the rule, each g licensee and each contractor or vendor administering its own fitness-for-duty program under the provisions of this rule will have a written appeals procedure that covers all employees covered by this part. Section 26.28 provides for the appeals procedure and Section 26.20 requims each licensee to establish such procedures in written form.

14.2.9 Comment: In response to the Commission's request for comments on the provision of a mechanism to cormet any errors, one commenter noted that a worker can sue a licensee for infringement of rights and thereby protect the right to an accurate and reliable testing program. The commenter believed that no further action was required by the NRC to provide a mechanism to correct erron; in the progra n. (letter Number: 330)

Resoonse: The NRC would hope that this program would not result in any ,

infringement of a worker's rights that would result in tie need for litigation. To avoid such a necessity, this part contains numemus pmvisions designed to protect workers' rights.

14.2.10 Comment: Two commenters recommended that the appeals process should be consistent with that of the access authorization policy. (Letter Numbers: 264;376)

Resoonse: The NRC recognize., that them is a close connection between the fitness-for-duty appeals procedure requirement and the review process called for in the access authorization pohey. In the Commission's judgment, the amendment to Section 26.28 ma' :s the two requirements consistent.

14.2.11 Comment: One commenter stated that workers should be compensated for costs associated with a successful challenge of positive test results. The same commenter stated that compensation for the mental duress associated with having been subjected to testing should be paid to workers who have negative test results or to workers who have successfully challenged positive test results. (Letter Number: 308)

Resoonse: The NRC does not agree with the need for such provisions given the other extensive projections afforded by the rule. ,

14.3 Access to Personal Records A number of commenters sought clarification on worker access to personal records as -

provided in the proposed rule.

14.3.1 Comment: Several commenters raised concerns about the information to be provided to the individual regarding his/her records. The following specific concems were mentioned: (1) the proposed rule does not clearly state that an individual has the right to review his/her records at any time to ensure their accuracy; (2) the proposed rule does not require the individual be notified if the licensee has disclosed his/her records because of a legitimate request (Section 26.29); (3) upon confirmation of a positive test result, the licensee or contractor should provide the employee with all records, documents and chain T

14-9

of custody forms relating to the finding of initial and positive test results. (Letter Numbers: 308;310;330;370)

Resoonse: Section 26.29(b) does authorize licensees and contractors to disclose personal information collected on employees for the purpose of complying with this rule to "the subject individual or his or her representative...." Section 3.2 of the NRC Guidelines requires that any covered individual shall, upon written request, have access to records relating to his or her tests. The NRC expects licensee management to allow workers to review their personal records at any leasonable time and place and to comply with warranted employee requests to corrxt inaccuracies in those records. The rule does not

cquire workers to be notified when the licensee has disclosed his or her records pursuant to a legitimate request as these may involve law enforcement officials acting in accordance with court orders or NRC investigations. Also, if a worker appeals a fitness-for-duty determination following a positive test result, the NRC would expect licensee management to provide the worker with all records, documents, and chain-of-custody forms relating to the finding ofinitial and positive test results, as provided for in Section 3.2 of the NRC Guidelines.

14.3.2 Comment: Two commenters stated that there is a lack of consistency in rpproach between Sktions 26.27(a) and 26.29. Section 26.27 requires licensees to request information90m non-licensee employers, while Section 26.29 expressly forbids the sharing of information with non-licensee employers. Thus, non-industry employers will be unlikely to cooperate since they cannot expect cooperation in return. (Letter Numbers: 309;340)

Resoonse: The NRC does not object to the release of pertinent information to a non-licensee employer provided the reguest for such material is accompanied by a signed release form for that purpose from the mdividual about whom the information is requested.

In that case, the prospective employer would fall under the provision of an authorized representative of the subject individual.

14.4 Use of Snecimen Samoles for Other Purooses A number of commenters expressed concern that specimen samples may be used for other analytical purposes and recommended that provisions be adopted to address this issue.

I4.4.1 pomment: Several commenters recommended the addition of wording to Section 26.29(a) that would prohibit the use of test results for anything other than  ;

evaluation of drug or alcohol use and stipulate that samples taken may not be used to I conduct any other analysis or test unless otherwise authorized by law. One commenter further recommended that licensees should not maintain multiple files and procedures as doing so would decrease confidentiality of personal information. (I.etter Numbers: 264; 271; 275;278;317;326;343;349. Meeting Comments: M-1.21; M-1.24. See also l subsections 3.5.23 and 3.5.24.) l Response: Under Section 2.l(d) of the NRC Guidelines, a licensee may test specimens obtained under this rule only for the substances specified in the licensee's fitness-for-duty pre-access and random substance testing program (i.e., the minimum panel plus any additional substances specified by the licensee). Such specimens shall not be used to conduct any other analysis or test without the permission of the tested person. The NRC l l 1 14-10 )

I believes that this section and Section 26.29(b) of the rule make it unnecessary to amend Section 26.29(a). In response to the second comment regarding multiple files, Section  !

26.29(a) requires a filing system. That system could incorporate the many individual files j and procedures needed to accommodate data pertaining to all workers with unescorted  !

access and all fitness-for-duty procedures. Such a filing system should effectively provide for confidentiality of personal information.

14.5 Other Issues Other issues mlated to individual rights were raised by a number of commenters. These included a concern for the effect the rule would have on the nuclear industry labor force and for the proper balancing of public safety and workers' rights. l 14.5.1 Comment: Several commenters considered the proposed rule to be an infringement upon workers' rigats. Secondary concems given stated that the rule sends a l strong message that nuclear workers are not trustworthy, that the NRC should make a concentrated effort to adequately safeguard the rights of industry workers, and that the rule would result in a decreased labor pool as a result of workers leaving or choosing to not enter the industry. (Letter Nambers: 16;41; 60;223;228;229;245;246;251;257;267; 273;288;302;336;342;344;345;360)

Resoonse: The NRC agrees that a work place drug testing program has the potential for infringement of workers' rights, especially their right to privacy. The NRC also believes, however, that a drug testing program is necessary in the nuclear work place to ensure that public health and safety are protected. Thus,it is essential to balance the need to protect the individual rights of workers against the need to protect the health and safety of the public. The NRC believes that, when a person accepts ajob which can severely and adversely affect public health and safety, that person must also accept certain responsibilities. One of those responsibilities is providing society with assurance that he or J she is always fit-for-duty. Given the trust that society must place in nuclear power plant l workers, and the responsibility those workers owe to society, the intrusion of work place {

drug testing into the private lives of workers is fully justified. Further, the rule contains l numerous provisions to protect the rights of workers. Thus, the NRC believes that the j potential infringement on individual rights has been offset by clear projections and provisions for fairness.

14.5.2 Comment: One commenter said that the issue seemed to be deciding whether the rights of a few nuclear industry workers are more important than the rights of the hundreds of thousands of captive customers around each nuclear utility in the country.

(Letter Number: 23) l Response: The NRC agrees with this commenter that public safety is of )

paramount concern in the present rule. However, the NRC has made every effort to protect I the rights ofindividuals covered within the scope of this part. i 14.5.3 Comment: One commenter recommended that use of numerical references i

rather than names to identify testing samples would be an effective means of protecting l workers' privacy interests. (Letter Number: 329) J l l l 14-11

,. c I

l[

t t Response * - ' The concern of this commenteris addressed in Section 2.4(g)22 of1

- the NRC Guidelines which requires drug test specimen containers to be identified by "the :

individual's specimen number and any other identification information provided or required by the drug testing program." Section 2.4(g)23 requires that the tested person initial the identification labels for the purpose of certifying that it is the specimen collected from him or her.

I'4. 5.'4 ~ .a Comment: One commenter thought that the use of certain qualifiers in Section

' 26.29(a) - " appropriate" law enforcement officials, and licensees " legitimately" seeking background information --is gratuitous and unnecessary. (Ietter Number: 309)

Resnonse: While such qualifiers may seem gratuitous to s, .ne, they will be thought by others essential to protect the confidentiality of personal information collected pursuant to this part. To increase the protective nature of this section, the NRC has added wording to make it clear that the information can be divulged to appropriate law enforcement officials who are "under court order."

.' o 14-12

l l

l 15.0 RELATIONSIIIP TO ACCESS AUTIIORIZATION Several commenters raised issues regarding the relationship of the pmposed fitness-for-duty rule and the access authorization program. A number of commenters questioned the relationship and possible overlap of the general performance objectives of the fitness-for-duty rule with those of the access authorization program. A number of commenters sought clarification or provided recommendations on the scope of a suitable inquiry. Other issues pertaining to the access authorization program and its relationship to the fitness-for-duty rule were also raised.

15.1 General Performance Obiectives Several commenters expressed concem over the mlationship between the general performance objectives of the access authorization program and the proposed rule.

15.1.1 Comment: Several commenters stated that the provisions of the rule should be consistent with the access authorization program. (Letter Numbers: 275;285;317;326; 331. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC believes that the rule, as amended, is consistent with the proposed access authorization policy statement. Assurance of consistency between the regulatory initiatives will continue during future Commission consideration of fm' al versions of the access authorization program.

15.1.2 Comment: Several commenters proposed the deletion of Section 26.27(b)(3)

[now Section 26.27(b)(4)] since the content of that section is already addmssed in the access authorization pmgram. (Letter Numbers: 264;309;326;329)

Resoonse: Section 26.27(b)(4) provides for reinstatement after being removed for three years or more, i.e., satisfactory medical assurance of abstinence for at least three years, assurance of fitness, frequent unannounced follow-up tests for three years, and permanent removal for any subsequent involvement with dmgs. The access authorization program does not include any of these provisions.

15.1.3 Comment: One commenter thought that the requirement for review by the Medical Review Officer of positive test msults is inconsistent with the provisions of the access authorization program. (Letter Number: 329)

Resoonse: The NRC does not find any inconsistencies between the requirement for review by the Medical Review Officer of positive test results and the provisions of the access authorization program. The fitness-for-duty rule does not require licensees to dismiss workers who have tested positive, but rather requires that their unescorted access be revoked.

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15.2 What is an Anorooriate " Suitable Inouirv?"

A number of commenters provided questions and recomrpendations concerning the i provisions in the rule for determining a suitable inquiry as part of an access authorization protocol.

.15.L 1 Comment: Several commenters recommended that the Section 26.27(a) 1 requirement of a " suitable inquiry" into an emplo.yee's work background either be deleted or modified to recognize that such an inquiry is already undertaken in accordance witn the d access authorization program. (Ixtter Numbers: 275;278;309;326;330;331;340;343; 349; 376. See also subsections 3.5.23 and 3.5.24.) j Resoonse: The suitable inquiry required by Section 26.27(a) is an essential part of the fitness-foratty program. The defimtion of" suitable inquiry" in Section 26.3 has been revised to mom accurately reflect the background investigation in Section E2.1 of the Industry Guidelines appended to the Commission's proposed access authorization policy statement. The Commission has not yet made final decisior.s on the character, scope, and ,

content of the access authorization program. When such determination is made, licensees j will not be expected to duplicate efforts should identical requimments exist under both j programs. j 15.2.2 ,

s Comment: Two commenters stated that the definition of" suitable inquiry" should be defined as a " good faith" effott to obtain information from previous licensee employers. One of the commenters stated that the period for which licensees are ,

responsible for seeking information from non-licensee employers should be limited to the j past five years, and employers should be confident that the disclosure of information is 1 confidential. (LetterNumbers: 317;340)

]

Resnonse: Licensees are required by Section 26.29 of the rule to establish.a  !

system of files and procedures to protect personal information, allowing access only to j selected individuals and agencies demons.trating a legitimate need to know. The NRC has J amended Section 26.3 to recognize the commenters' concerns that access to information I may be limited and that a "best effort" verification of employment data for the past five I years, but in no case less than three years, is adequate. It is expected that non-licensee j employers may not be able to provide the requested information in all cases. The i responsibility to conduct a thorough investigation is the licensee's.

15.2.3  ;

Comment: One commenter stated that the period specified for suitable inquiry should be limited to the past five years. (Ixtrer Number: 309) 1 Resnonse: Section 26.3 has been amended to define " suitable inquiry" av a best i effort verification of employment history for the past five years, but in no case for less than 1 three years.

l

[ I i

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1 15.2.4 Comment: One commenter asked what course should be followed in case the licensee cannot complete a " suitable inquiry," such as a case in which a former employer refuses further cooperation.' (Letter Number: 309)

Resoonse: ' It is not expected that a licensee legitimately seeking the information as required by the rule and with a signed release from the worker would be denied such by

! ~ a previous employer. However, the proposed rule has been amended to require a "best effort" inquiry. It is ultimately the responsibility of the licensee to grant or deny access authorization. Temporary access authorization, not to exceed 180 days, may be granted .

while an investigation is in progress but this time may not be exceeded. It is, therefore, particularly important that the licensee exercise its "best effort" to gain the cooperation of -

past employers from whom the information is requested.

15.2.5 Comment: The definition of" suitable inquiry" should include the requirement to obtain a signed release form prior to a background investigation. In addition, the following should be added to the definition: "' Suitable Ingmry' means a signed release form from the current or prospective employee to conduct employment verification is obtained and . . . " (Letter Numbers: 275;278;298;306;310;317;326;329;335;343; 349. See also subsec: ions 3.5.23 and 3.5.24.)

Resoonse: A requirement has been added to Section 26.27(a) that a suitable inquiry will be conducted only after obtaining a signed micase from the worker authorizing the mquiry. Should the applicant refuse to provide the signed release, the NRC expects that accons related to the granting of unescorted access will be discontinued.

15.2.6 Comment: The Section 26.27(a) requirement for a five-year background check of wor'kers is objectionable due to confidentiality policies of former employers, the extensive amount of cooperation required from former employers to conduct such an inquiry, and potential high costs associated with this requirement. Therefore, this i requirement and the refemnce in Section 26.3 to a five-year background check should be eliminated. '(Letter Numbers: 281;300;329)

Resoonse: The NRC agmes that the background investigation requimd in the fitness-for-duty rule may be difficult to conduct in some cases and that the desired  ;

information may not always be forthcoming. Consequently, the term " suitable inquiry" in Section 26.3 has been modified to provide for the "best effort" provisions of paragraph 6.2.1 of the Industry Guidelines. That is, attempts should be made to obtain mformation for the entire five year period, but under no circumstances may unescorted access be granted based on an employment check of less than three years.

15.2.7 Comment: Two commenters asked whether the rule directs a licensee to make an inquiry into a prospective worker's past record before the worker is hired or whether the rule allows that the inquiry come after the hiring decision is made but before unescorted access is granted. (Letter Number: 309. Meeting Comment: M-1.135.)

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g-Resnonse: The NRC considers that a decision to hire and an access investigation are two separate processes. Whether to hire is a licensee's prerogative; the NRC's interest extends only to tne licensee's decision to grant unescorted access. It is obviously to the licensee's interest to ensum that an applicant for employment is qualified in all respects. Nothing in this rule is intended to inhibit the licensee's completing all prudent pm-employment measures.

15.2.8 Comment: One commenter stated that the definition of" suitable inquiry" conflicts with 10 CFR 73.55. To make the defini' ion in the rule consistent, the definition should be as follows: '" Suitable Inquiry' means verification of employment history consistent w!th the Licensee Security Plan, obtained through contacts with previous employers to determirse if a person was, in the past, tested positive for illegal drugs . . . "

(letterNumber: 278)

Resnonse: There is no requirement for a suitable inquiry in 10 CFR 73.55. If a licensee's security plan should conflict with the requirements of 10 CFR 26, the licensee must amend its security plan under 10 CFR 50.54(p).

15.2.9 Comment: One commenter stated 'that licensee management is responsible for assigning a worker to a job, as well as determining the worker's overall fitness for duty.

Thus, specific requirements for a medical determination are not necessary. Therefore, Section 26.27(a) should be modified to delete the reference to a medical determination of fitness. (LetterNumber: 330)

Resnonse: The requimments in Section 26.27(a) relate to what information must be obtained and considered plipI to the initial granting of access (essentially a pre-employment mquirement). The day-to-day determination of fitness and assignment of work is not covered by this provision.

15.2.10 Comment: In light of the Section 26.71(b) requirement that licensees retain reconis of confirmed positive test results for (at least) three years, one commenter asked i whether the Section 26.27(a) requirement that licensees make a suitable inquiry to determine if a worker being considered for unescorted access would not be likely to be able to draw upon test result data from only the past thme years. (Meeting Comment: M-1.136)

Resnonse: Section 26.71(b) of the rule has been modified to require the retention of records of confirmed positive test results for at least five years, and Section 26.3 has been modified to defir,e " suitable inquiry" as a "best effort" verification of employment history for five years but in no case less than three years. These revisions establish consistency between suitable inquiry requirements and recordkeeping mquimments.

15.2.11 Comment: One commenter mcommended that an additional subsection be added to Section 26.27 which would declare that a worker's failure to sign a release form to allow background information to be obtained should be considered presumptive evidence that

)

l 15-4

information exists which would prevent the granting of unescorted access under the rule.

(letter Number: 335)

Resoonse: It is the NRC's intent that a worker's refusal or withdrawal of consent for a background check as required by this rule would be considered a withdrawal of application for unescorted access. Section 6.1 of the access authorization draft policy statement allows a worker to refuse or withdraw permissico for a background examination.

Ary personal information obtained prior to revocation of consent is to remain confidential.

Thus, the NRC does not agree that an addition to the rule is necessary.

15.2.12 Comment: One commenter proposed that the term " initial" should be replaced ,

with the term " original" in the first sentence of Section 26/27(a). (Ixtter Number: 330) i Resoonse: The NRC is satisfied with the definition of the word " initial" and its use in the fust sentence of Section 26.27(a). " Original" implies that only one inquiry would ever be conducted even if the person returned after being employed elsewhere for several years.

15.3 Pre-Access Chemical Testing Several commenters remarked on the need for and timing of chemical testing before the

{

granting of unescorted access. l 15.3.1 Comment: Several commenters recommended that Section 26.24(a)(1), which l states that testing should be performed "immediately before the granting of unescorted access," should be revised to state that testing should be performed not more than 60 days prior to the granting of unescorted access. Another commenter suggested that 30 days was an adequate amount of time. (Letter Numbers: 252;264;269;271; 275; 278;281; 317; 326;343;349;371;373;376. Meeting Comments: M-1.94; M-1.107; M-1.114. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC concurs with the commenters' concern and has revised Section 26.24(a)(1) to specify that testing should be performed within 60 days prior to the initial granting of unescorted access to protected areas or assignment to activities with the scope of the rule.

15.3.2 Comment: One commenter agreed with the NRC position that testing prior to the initial granting of unescorted access should be required. (Letter Number: 342)

Resoonse: The NRC concurs that testing prior to the inida! granting of unescorted access is necessary.

l 15.3.3 Comment: Os nmmenter said that candidates at his facility are required to undergo a screening for drugs and alcohol as part of the hiring process. (Letter Number:

329) 15-5 1

Resoonse: The NRC agrees that this is a necessary precaution but not sufficient to assure fitness-for-duty.

15.4 Other Issues-A variety of ouer issues were raised by commenters regarding access authorization and the proposed rule.

15.4.1 Comment: Several commenters stated that while a suitable inquiry was being conduc:ed, temporary access authorization should be allowed. (Letter Numbers: 326; 339;358;371;376)

Resoonse: Consistent with the industry guidelines for nuclear power plant access authorization programs, the NRC agrees that granting temporary access authorization is acceptable provided the access is limited to 180 days or less, the individual is undergoing investigation for permanent authorization, that certain provisions of the access authorization program have been completed, and the employee has passed a chemical screening test conducted according to the requirements of Section 26.24(a)(1).

Language to this effect has been added to Section 26.27(a).

15.4.2 Comment: Two commenters stated that the licensee should impiement programs to assum that escorted access is not utilized to circumvent requirements for pre-access testing. (Letter Numbers: 275;278;298;326;349. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Given the substantial burden to the licensee, the NRC does not believe that the licensee will systematically attempt to circumvent the rule by providing escorts to individuals with known fitness-for-duty problems.

15.4.3 Comment: One commenter proposed that methods such as the Integrated Nuclear Data Exchange system be used by utilities to track individuals who have been denied unescorted access. (Letter Number: 339)

Resoonse: The NRC believes licensees may use whatever sources they deem appropriate in conducting background investigations into the suitability ofindividaals applymg for employment. However, the provision of information collected under this part to other licensees is govemed by the conditions laid out in Section 26.29.

15.4.4 Comment: One commenter stated that the tracking of personnel denied access is an area of employee relations that must be left to management. The rule as drafted will have a negative impact on worker morale and will inhibit self-referrals to the employee assistance program, thus undermining the program's primary objective. (Letter Number:

304)

Response: The NRC disagrees with the commenter and believes that the current provisions of the rule are necessary to ensure the objectives of plant safety and security.

15-6

Further, the NRC believes that the tracking of personnel denied access will have minimal effects on employee assistance program self-referrals because such referrals are exempt from disclosure.

15,4.5  ;

Comment: One commenter recommended that Section 26.27(a) should include specific guidelines describing what an adequate " management and medical determination of fitness for duty" should be based on. This was thought to be necessary because of the variance in industry judgment as to what these words require. (Letter Number: 377)

Resoonse: The NRC has provided through this rule a standardized basis for screening for substance abuse. The NRC believes that existing industry practices, medical expertise, and prudent management are adequate to assure adequate " management and medical determination of fitness for duty" at this time.

15.4.6 Comment: One commenter recommended that the words " management and"  !

before " medical assurance" in Section 26.27(b)(1) be deleted because management personnel are not trained to make medical assurances. (letter Number: 330)

Resoonse: The wording of Section 26.27(b)(1) has not been changed because management bears the ultimate responsibility to determine the worker's fitness to adequately perform activities within the scope of this part, based upon review of medical history and assessment of fitness.

15.4.7 Comment: One commenter recommended that the NRC create and maintain a  ;

central data base to track fitness-for-duty incidents and, by doing so, contribute to the j screening of employees' work histories prior to granting unescorted access as required by Section 26.27(a). (Letter Number: 377)

Resnonse: The NRC believes it is the responsibility of the licensees to collect sufficient information to be able to make pmdent informed decisions regarding access authorization for employees and applicants.

15.4.8 Comment: One commenter gave the following conditions for pre-access testing:

pm-access testing should be defm' ed to mquire that a licensee has within 60 days of granting access to perform the test and a person is not subject to this testing if unescorted access has never been denied, unescorted access was voluntarily deactivated under favorable conditions, and a pre . access test was performed within 365 days prior to the request for reinstatement of unescorted access. The commenter also suggested that the NRC " replace the entire section with ' pre-access testing.'" (Letter Number: 330)

Response: The wording of Section 26.24(a)(1)in the proposed rule has been changed to " pre-access" instead of" pre-employment" and the requirement changed to within 60 days prior to granting access. However, the NRC believes that the additional suggestions would be more complex to administer than additional pre-access testing.

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16.0 INSPECTIONS, RECORDS AND REPORTS The commenters raised several issues concerning the provisions in the proposed rule for inspections, mcords and reports. A major concern expressed by commenters was the Fitness-for-Duty Program Performance Data form. Commenters also raised issues and requested clarification regarding fitness-for-duty record retention and reporting requirements, the time requirements for reporting fitness-for-duty incidents to the NRC and .

NRC inspections. Other issues related to mspections, records and reports were also raised by the commenters.

16.1 Eitness-ror-Duty Procram Performance Data Form A number of commenters expressed concern over the content and use of the proposed Fitness-for-Duty Program Performance Data form for reporting licensee fitness-for-duty information to the NRC.

16.1.1 Comment: Numerous commenters objected to the provisions of Section 26.71(d). Some of the commenters requested that all of the section be deleted. Others requested that the proposed data collection form be deleted. Still others took exception to specific aspects of the data collection form including items pertaining to the use of FAPs and the various proactive efforts. Reasons given included: 1) the information required goes beyond the content of the rule and health and safety concerns; 2) requiring information on EAPs would inhibit their use; 3) them is no justification in the rule for requiring information on family and legal problems; 4) information mquirements on proactive efforts should be part of the access authorization program: 5) the data requirements are excessively buniensome; 6) the data are irrelevant to determining program weaknesses; 7) other provisions of the rule including chemical testing and pmcedures in the HHS guidelines are sufficient for assuring an effective program; 8) the EEI guide provides adequate guidance on evaluating program effectiveness; and 9) the licensee should be responsible for evaluating its own program and the NRC should audit this evaluation. (Letter Numbers:

19;252;264;269;271;275;278;281;290:298;300;303;306;309;317;319;326;329; 330;339;340;343;349;354;356;358;371;376. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC has decided to mquire that data be collected on a standard form. Section 26.71(d) has been amended to specify the data to be collected, analyzed, and submitted to the Commission every six months. See: FRN, Supplementary Information, Section 15.2.1.

16.1.2 Commt01: Several commenters objected to the proposed data collection form stating that infognation collected under this rule should be protected from public disclosure to prevent improper interpmtations of the data. Analyzing data in this manner could adversely reflect on licensees and their employees, be counterproductive to the objectives of the mle, and possibly be a source ofliability to licensees. One commenter suggested deleting the form and the NRC's inspection of this information, since management has responsibility to protect such information. The commenter suggested that a substitute form be composed and maintained by licensees for NRC inspection and evaluation. Others recommended that, to prevent isolated facts from being publicly analyzed out of context, the NRC form should not be used and Section 26.71(d) be deleted. (Letter Numbers:

16-1

264;269;275;309;326;329;330;340; 343;376. See also subsections 3.5.23 and 3.5.24.)

]

l Resnonse: The NRC will require that licensees collect and compile fitness-for- '

duty pr,ogram performance data on a standard form which will be submitted to the  ;

Commission every six months. The NRC believes the information is necessary to evaluate the effectiveness of the rule and industry programs. {

j 16.1.3 i

Comment: One commenter stated that the proposed data collection form seems J to make it impossible to track a program's handling of a specific case. A more detailed form listing each case by number and tracking it through its programmatic stages would be more effective. Summary data could still be provided. (LetterNumber: 377)

Resoonse: The NRC does not object to a licensee developing a method for l tracking an individual case provided the rule's provisions regarding employee privacy are I followed.

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16.1.4 i

Comment: One commenter stated that information reported for program performance should consist only of violations of NRC or licensee policy and the percentage of random tests identified as positive or negative. (Letter Number: 319)

Resoonse: The NRC believes that the data required by Section 26.71 are the minimum necessary to evaluate fitness-for-duty program effectiveness.

I6.1.5 Comment: A few commenters asked iflicensees will be required to perform all the efforts listed on the proposed data reporting form. Two commenters recommended deleting sections dealing with searches of the workplace and the references to searches on the proposed NRC form. One of the commenters strongly objected to the implications of requinng searches and investigations because of the possibilities of abuse and effects on morale. (LetterNumbers: 323;348. Meeting Comment: M-1.147)

Resoonse: The proactive measures listed on the form are not required by the rule but should be considered by the licensee as possible " good practices." Those proactive measures were included in the proposed form because they could affect the results of other program elements, and they appeared to be proper to program analysis.

16.1.6 Comment: One commenter stated that data required for unannounced, periodic tests and follow-up tests would be the same. (Letter Number: 329)

Resoonse: The NRC agrees that the meaning of" Unannounced Periodic" test on the reporting form is unclear; however, it was meant to cover any periodic testing a licensee chose to use in addition to the testing required by the rule. If the NRC elects to use this form in the future, a definition will be provided which accurately describes the meaning of this type of test.

l 16-2

p' 16.1.7 Comment

One commenter requested a definition of the term " total manhours,"

on the proposed data reporting form. (Letter Number: 329)

Resoonse: The " total manhours" column on the reporting form means the number of hours expended in each of these activities. If the NRC elects to use this

particular form in the future, definitions of all terms will be provided.

-16.1.8 Comment: One commenter stated agmement with NUMA'RC's comment on Section 26.71(d) but also added that the NRC should conduct its review of data and management actions on site rather than through submissions to the NRC. (Letter Number:

278)

Resoonse: The final rule requires periodic submission of data to the NRC.

I6.1.9 Comment: One commenter stated that because alcohol is included on it, the proposed data collection form is inconsistent with the drugs identified in the rule. (Letter Number: 329)

Resoonse: The NRC has added alcohol to the rule.

16.2 Renorting Requirements Commenters expmssed concem regarding the requirements for reporting fitness-for-duty incidents :o the NRC. These commenters believed that the requirements for reporting fitness-for-duty incidents to the NRC were in conflict with other reporting time requirements described in 10 CFR 73.71, or that these requirements were redundant.

16.2.1 Comment: Several commenters stated that Section 26.73(b) is redundant to and in conflict with the requirements of currently existing rules, such as those in 10 CFR

?3.71, and the Regulatory Guide 5.62. Several commenters asked if the 24-hour report required in 26.73 would replace or be in addition to the one-hour telephonic report required for discovery of a controlled substance within the protected area. Commenters stated that establishing more requirements conflicts with the stated objective of simplifying reporting.

(Letter Numbers: 252;317;340. Meeting Comments: M-1.153; M-1.154)

Resoonse: The NRC believes that the reporting requirements in Section 26.73 support the stated performance objectives of the rule. Licensees should note that the provision of Section 26.73(c) supercedes and relaxes the 1-hour reporting period for the fitness-for-duty categories of safeguards events in 10 CFR 73.71. In addition, the NRC

. will publish a revision to Regulatory Guide 5.62 to ensure consistency with this rule.

Therefore, in instances where a controlled substance is discovered in a protected area, licensees am required to report this as a significant fitness-for-duty event in accordance with Section 26.73(a)(1) of the rule within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> following the occurrence of the event.

I6-3

16.2.2 Comment: One commenter asked ifit is the licensee's responsibility to report a drug event of a contractor's employee 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after the contractor discovers it or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after the contractor reports it to the licensee. (Meeting Comment: M-1.162)

Resoonse: The 24-hour reporting ps.od commences after the contractor reports the event to the licensee. However, if the contractor consistently delays reporting incidents to the licensee, the NRC would expect the licensee to take appropriate action.

16.2.3 Comment: One commenter asked whether the 24-hour notification begins with initial or with confirmatory tests. (Meeting Comment: M-1.161)

Resnonse: The 24-hour notification period to the NRC for confirmed positive test results for licensed operator and supervisors follows notification to licensee management by the Medical Review Officer of a confirmed positive test.  ;

16.2.4 J 1

Comment: One commenter mcommended that the 24-hour notification should be by telephone to the Regional Administrator instead of the NRC Operations Center.

(LetterNumber: 281) l Resoonse: The NRC believes that the NRC Operations Center should be I initially notified within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of significant fitness-for-duty events. The NRC Operations Center is responsible for determining the appropriate actions and notifying the responsible NRC parties.

16.2.5 Comment: One commenter asked whether the rule requires a licensee to report to the NRC in 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> the removal from access of a worker who has been arrested off-site for a drug-related offense, particularly in light of the not uncommon occurrence of invalid ,

arrests in such circumstances. (Meeting Comments: M-1.155; M-1.156; M-1.157; M-  !

1.159; M-1.160)

Resoonse: If the individual is a licensed operator or supervisor, any offsite involvement with drugs must be reported to the NRC within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.

16.2.6 Comn ent: Several commenters believed the requirement for 24-hour notification to be unnecessary or unmalistic. One stated that 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> is too short a period for licensees to get arrelinformation. One commenter mcommended a 72-hour notification period. One thought that the 30-day notification would suffice, while another recommended quarterly reports. (Letter Numbers: 304;309;330;359)

Resoonse: The NRC believes that a 24-hour notification period to report  ;

significant fitness-for-duty events is realistic and in many cases will be a relaxation of l

current 1-hour mporting guidance.

l 16-4 l 1 l 1

-s lNI 16.2.7:

Comment: One commenter asked what actions the NRC would take in response to the 24-hour notification, to the 30-day notification, and to the data it requires the licensee to compile regarding program performance. (Meeting Comments: M-1.148; M-1.150)

Resnonse: The NRC has amended the proposed event reporting requirements to -

require only the 24-hour notification. However, the NRC cannot anticipate specific responses following notification of significant fitness-for-duty events. These situations will be evaluated by the NRC on a case-by-case basis and will depend on the nature and circumstances surrounding the events and general fitness-for-duty program effectiveness.

16.2.8 Comment: Two commenters recommended that the 30-day notification be

. deleted in the rule in favor of quarterly or even annual reports. (Letter Number: 330.

Meeting Comments: M-1.149; M-1.151) g Response: The NRC has chosen to mquire only the 24-hour telephone l notification to the NRC Operations Center for significant fitness-for-duty events. I i

.' 16.2.9 l

Comment: One commenter asked for clarification as to what the content and I format of the 30-day report should be. (Meeting Comment: M-1.163)

Response: The NRC has decided to require notification only through the 24-hour telephone notification process for significant fitness-for-duty events.

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16.2.10 l

I .

I Connnent: One commenter recommended that Section 26.73(b) be deleted since it does not matter how the reports are submitted, only that they are submitted. A licensee may choose to use the reporting requirements of 10 CFR 73.71 as the reporting vehicle.

(LetterNumber: 300)-

Response: The NRC believes that the reporting requirements of Section 26.73(b) are necessary to satisfy the performance objectives of the rule, and that those of 10 CFR 73.71 would not adequately satisfy these objectives. ,

16.2.11 Comment: One commenter stated that licensees must be able to verify significant fitness-for-duty events prior to reporting, since an investigation which proves nothing may cause adverse publicity to the plant and the people involved. (Letter Number:

267) e Resoonse: The NRC believes that the majority of significant fitness-for-duty events as described in Section 26.73 are verifiable by the licensee within the 24-hour notification period, su::h as confirmed positive test results or an arrest for drug involvement by licensed operators or supervisors. Licensees are therefore required to report the event within this period of time. In instances where funher investigation is required, licensees should notify the NRC of this fact when the event is reported. The Commission will then take the need for funher investigation into account.

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16.2.12 Comment: TNo commenten recommended that Section 26.73 be amended to require licensees to eport the identities of workers involved with drugs to the NRC on a monthly basis so that such information could be distributed to all other licensees by the Commission. (LetterNumbers: 300;309)

Resnonse: The NRC believes that the release of such information should occur only on a case-by-case basis, based on a suitable inquiry request by a licensee, and should be released only upon written consent by the effected worker. If the worker decides not to provide such a release, he or she must be denied unescorted access to protected areas.

I6.2.13 Comment: Two commenters asked for clarification of who falls within the scope of Section 26.73(a). One asked specifically which " supervisors" are covered by this section. (IxtterNumber: 317. Meeting Comment: M-1.152)

Resnonse: Section 26.73(a) applies to all persons granted unescorted access to pmtected amas and to licensee, vendor or contractor personnel required to physically report to a licensee's Technical Support Center (TSC) or Emergency Operations Facility (EOF) in accordance with licensee emergency procedures. Supervisors on or off site within the scope of Part 26 are included.

16.2.14 Comment. One commenter recommended that the Commission retain current copies oflicensees' written policies and procedures. Public review oflicensee programs would then be possible either through the NRC's Public Document Room or the Freedom ofInformation Act. (1xtterNumber: 377)

Resoonse: The NRC does not maintain current copics of licensees' written policies and pmcedures. However, the NRC will inspect the licensees' written policies and procedures as part ofits normal inspection activities to ensure that they satisfy NRC requirements.

16.2.15 i

Comment: One commenter asked if NRC Form 366, which is currently used for Licensee Event Reports and Safeguards Event Reports, can be used for compliance with the Section 26.73(a)(3) requirement for " written reports." (Ixtter Number: 317)

Resnonse: The NRC has decided to require notification only through the 24-hour telephone notification process. Written reports will not routinely be mquired for significant fitness for-duty events.

16.2.16 Comment: One commenter stated that the proposed rule fails to require clear records of all incidents of drugs and alcohol at the work place along with timely reports to the Commission. (Letter Number: 4) 16-6

Resnonse: The NRC believes that the requirements pertaining to periodic performance data and timely reporting of specific significant events are adequate and, therefore, sees no reason to change the reporting requirements of the rule. The reporting requirements in Section 26.73 are reasonable as stated. See: FRN, Supplementary Information, Sections 15.2.2, 15.2.3.

I6.2.17 Comment: One commenter asked if the Safeguards Event 1.og could be used instead of a telephone report to fulfill requirements under Section 26.73(a)(2). (Letter

. Number: 317)

Resnonse: The Safeguards Event Log does not fulfill the requirements for reporting a significant fitness-for-duty event to the NRC as required by Section 26.73(a)(2).

16.2.18 ,

Comment: Two commenters thought that the provisions of Section 26.73(a)(1)(i) are not sufficiently inclusive. One commenter sul;gested the rule should require reporting incidents in which persons within the protected area are under the influence of dmgs or alcohol even if they had used the substance off-site. Another suggested the rule include reporting any incidents regardless of where they occur in the plant. (Letter Numbers: 328;377)

Resnonse: The NRC believes that the provision in Section 26.73(a)(1) includes the reporting ofincidents in which licensed operators or supervisors within the protected area are determined to be unfit due to alcohol or test positive for drugs (including for-cause tests performed because of apparent impairment). In addition, reporting is requimd for j sale, use or possession of a controlled substance by licensed operators or supervisors at any location. All other fitness-for-duty cases would be periodically reported to the NRC as program performance data. I l

i I 6.2. I 9 Comment: Two commenters stated that since the ability for licensees to disclose information on illegal drug offenders is not cicar, the NRC should take the responsibility and provide the names and social security numbers of those persons reported by individual licensees to all licensees on a monthly basis. (Letter Numbers: 264;317)

Resnonse: The NRC believes that the actions needed to meet the provisions of Section 26.27(a) regarding suitable inquiries of applicants for unescorted access are best accomplished by the licensees.

16.3 NRC Insocctions Commenters requested clarification on the nature and frequency of NRC inspections of licensee fitness-for-duty programs.

I6.3.1 Comment: One commenter stated that the rule should specify the frequency of the NRC's inspection of the licensee's fitness-for-duty program for two reasons: 1)to legally require the NRC to carry out these inspections on a regular basis to make fitness-16-7

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for-duty a priority in the industry; and 2) to dispel any uncertainties licensees may have about what is expected of them and what sort ofinspection regimen they can expect.

(LetterNumber: 377)

Resoonse: The NRC does not specify NRC inspection frequency in its regulations. The NRC does specify a frequency for licensee internal audits. NRC inspections will be based,in part, on experience with the implementation of programs required by the rule.

-16.3.2' Comment: One commenter stated that inspections should be made at least as often as the Systematic Assessment of Licensee Performance (SALP) reports are released for each plant. (Letter Number: 377)

Resoonse: The NRC has not yet determined a schedule for inspecting licensee fitness-for-duty programs.

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16.3.3 i Comment: One commenter requested that Section 26.70(b)(2) be revised to read: "The NRC may inspect and take away copies..." to explicitly allow the NRC to take away copies of the records. (Letter Number: 377)

Response: The NRC believes that the proposed rule adequately addressed this comment and, therefore, has made no change. See: Final Rule, Section 26.70(b)(2).

16.3.4 Comment: Several commenters stated that, in order to maintain protection of personnel records, the NRC should not copy or take personnel records but should only tequire access to them. Another commenter stated that only very few NRC personnel should be allowed access to the records. One commenter thought that information should be anonymous and that only statistical information should be provided for inspections.

Another believed that the NRC should be able to inspect program elements to verify compliance but that individual medical files should be privileged. (Letter Numbers: 3; 267; 271; 278;317; 343)

Resnonse: The Commission believes that the current provisions of Section 26.70(b)(2) are necessary for the NRC to evaluate the effectiveness of the rule and industry programs. This section provides a valuable tool for the Commission's periodic review of the rule's provisions. The NRC does not anticipate requesting the results oflaboratory tests correlated to individual names except when related to the required 24-hour reports.

Nevertheless, the NRC wishes to reserve the right to have access to specific results when needed for particular situations involving safety and investigative matters such as malfeasance in the administration or management of the fitness-for-duty program. See:

FRN, Supplementary Information, Section 11.2.5.

16.3.5 ,

Comment: One commenter opposed formal written agreements between  :

licensees and contractors and advocated a review for program verification only. The commenter thought that the provisions of Section 26.70(b) were too formal and 16-8

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/ l prescriptive, particularly in comparison to safeguards and emergency planning. (Letter Numbers: 271)

Resnonse: The NRC believes it is imperative that licensee contractors and vendors are fully aware of the provisions and requirements of the NRC's fitness-for-duty rule and the implications of these obligations upon the licensee, contractor or vendor.

Further, the NRC believes it is essentM

• s enforcement of the rule that each contractor and vendor be legally required through thetw .. tact with a licensee to be subject to NRC inspections. In this regard, contractors and vendors must be informed of the NRC's inspection privileges in regards to licensee, contractor and vendor documents, records, or reports related to the implementation of the licensee's, contractor's, or vendor's fitness-for-duty program under the scope of contracted activities.

16.4 Record Retention Several commenters provided the NRC with recommendations on the types c' records to be retained artd the appropriate length of the retention period.

I6.4.I Comment: One commenter recommended that utilities not be required to keep records for contractors. The NRC should maintain these records and require licensees to periodically report contractor employees who have been denied access. These records should be availdie to all licensees and should be permanently retained. (Letter Number:

330)

Response: The NRC does not expect licensees to keep contractor records.

However, licensees are expected to maintain records of access authorization decisions, including those individuals denied unescorted access to protected areas, and to obtain records of these matters from other licensees prior to granting unescorted access.

16.4.2 i Comment: Commenters had various opinions as to the period that records of removal from duty should ha maintained. One commenter thought that records were no longer needed once the employee clearly demonstrates that drugs or alcohol is no longer a problem. Another suggested that recortis be kept until the employee's job description no longer involves a safety issue. Some commenters suggested periods ranging from 18 months to permanently, or for the life of the plant. Other commenters suggested the period should correspond to the length of time needed for background screening or for the period of access denial, whichever is longer. (Letter Numbers: 19;252;269; 271; 272;278;281; 308;315;330;349;367;376)

Response: The NRC concluded that records must be retained for at least five years and has made the appropriate modifications to Section 26.71. See: FRN, Supplementary Informaton, Section 15.2.5 and Final Rule, Section 26.71(a).

I 6.4.3 Comment: One commenter stated that licensees should be required to keep copies of the procedure manuals used by the labs performing the confirmatory tests for a period of 6 years to defend against tort suits. Copies of all test procedures, principles of testing, criteria, controls, dates on which procedures are in effect, etc., should be maintained as part of these procedure manuals. (Letter Number: 370) 16-9

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Response: The NRC believes that records pertaining to the administration and conduct of the testing program (e.g., laboratory procedure manuals, records of certification, etc.) should be retained until all appeals and any judicial actions arising from any test covered during the effective period of those records have been exhausted. No retention requirements are specified for these records. See: FRN, Supplementary Information, Section 15.2.5.

16.4.4  !

Comment: One commenter stated that since administrative procedures do not

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have mandated retention periods, references to the retention of mcords in Sections 26.20 and 26.21 should be deleted. In the case of policy and procedures, Section 26.20 should read: Each licensee shall retain a copy of the current written policy and procedure as a .

record until the Commission terminates each license for which the policy and procedures were developed. (Letter Number: 371)

Resoonse: The NRC sees no reason to change the records retention provisions of Sections 26.20 and 26.21 of the proposed rule. The Commission desires that the superceded material referred to in Section 26.20 be retained for three years to permit 1 inspection and review. In addition, licensees should retain such material until matters I under review or appeal have been decided. I 16.4.5 Comment: One commenter mcommended that, for consistency in rulemaking and in order to standardize the location of records atention and disposition requirements in the rule, the mcord requirements in Sections 26 20 and 26.21(b) be moved to 26.71 and that the wording of Section 26.71 be changed to read: (e) Retain records specified in i subparts 26.20,26.21(b),26.22(c), and 26.80(c). Policies and procedures shall be mtained undl the Commission terminates each license for which those policies and procedures were developed. All other rec,uired records shall be retained for a period of 3 years after the record is completed or revised. (Letter Number: 278) l Resoonse: Be NRC has concluded that certain specified records must be retained at least five years and has made the appropriate modifications to Section 26.71.

Other recortis retention requirements remain as contained in the proposed rule and are not consolidated into Section 26.71. See: FRN, Supplementary Information, Section 15.2.5.

I6.4.6 Comment: One commenter recommended maintaining the system referred to in Section 26.29(a) for a period of 5 years rather than "until the Commission terminates each licensee for which the system was developed." (Letter Number: 358)

Resnonse: The NRC sees no reason to change this provision of the rule. A system for protecting information will be necessary as long as the plant is operating. The requirements regarding the protection ofinformation in Section 26.29(a) are reasonable as stated. See: Final Rule, Section 26.29(a).

16.5 Other Issues 1

Other issues related to inspections, records and reports were raised by several commenters.

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i 16.5.1 Comment: Two commenters suggested that Sections 26.21,26.22, and 26.23 l of the proposed rule relating to training and contractors be eliminated and that this fact be I reflected m the information collection requirements listed in Section 26.7. (Letter Numbers: 300;329)

Resoonse:

~

The NRC believes that Sections 26.21,26.22 and 26.23 are .

essential components of the proposed fitness-for-duty rule. Therefore, since these sections are included in the final rule, the information collection requirements listed in Section 26.7 will remain unchanged.

16.5.2 Comment: One commenter requested that all references to record-keeping for access authorization procedures be deleted from Section 26.71(a). (letter Number: 376)

Besoonse: The NRC is satisfied with its inclusion of record-keeping requirements for access authorization procedures in Section 26.71(a) of the rule.

16.5.3 Comment: Two commenters thought that the scope of Section 26.73(a)(1)(ii)

[now Section 26.73(a)(2)] should be clarified by replacing the phrase " supervisory personnel assigned to perform duties within the scope of this part" with either " supervisory personnel who fall within the scope of Section 26.22" or " supervisory personnel assigned to perform duties within the scope of 10 CFR Part 55." (Letter Numbers: 284;330)

Response: The NRC believes that the wording in Section 26.73(a)(2) is adequate.

16.5.4 3 Comment: One commenter stated that the Commission will be unable to enforce its regulations unless it requires complete records and reports. (Letter Number: 4)

Resnonse: The NRC is confident that the rule requires adequate records. The NRC is satisfied at this time with the types ofinformation it requires licensees to report.

16.5.5 Comment: One commenter stated that all records of removal from duty should be kept in a file separate from the standard personnel file and access should be limited to a "need to know" basis. (Letter Number: 278)

Response: The current provisions of Section 26.29 require licensees to establish and maintain a system of files and procedures for the protection of personnel information. However, this provision does not necessarily imply the need to esWish a separate filing system as long as the requirements of Section 26.29 are met by the licensee's standard personnel procedures.

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- 16.5.6 Comment: One commenter stated that the mle does not specify a time frame for the correction of " program weaknesses" identified through an analysis of performance data.

The commenter recommended that 30 days should be specified as the time frame for

" appropriate actions" to be taken. (Ietter Number: 377)

Resoonse: The NRC expects that the licensee will address program weaknesses with all seriousness and in a timely way. Since the time needed to complete actions will vary depending on circumstances, the NRC will not specify a particular time period in which these weaknesses must be corrected. See: FRN, Supplementary Information, Section 15.2.1.

16.5.7 Comment: One commenter recommended that Section 26.29(c) be amended to require licensees to maintain a system of files and procedures for the protection of personal information for five years rather than until termination of the license and that only records of positive tests be maintained. (IetterNumber: 339)

Resoonse: Section 26.29(a) requires a system for protecting records. It does not require the retention of any specific records. Section 26.71(b) has been modified to

. require the retention of records of confirmed positive test results for at least five years.

Records of negative test results should be kept to ensure that the rights of workers are protected, and to provide an audit irail of program performance.

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17.0 AUDITS OF FITNESS-FOR-DUTY PROGRAMS Several commenters raised issues regarding the required audits of fitness-for-duty programs, including the types of audits to be conducted, whether contractors' fitness-for-duty programs are to be audited by the licensee, auditor qualifications, and the frequency of audits. Otherissues related to audits of fitness-for-duty programs were also raised by commenters.

17.1 Tynes of Audits Commenters raised issues regarding the types of audits to be conducted and the responsibility for conducting the audits.

17.1.1 Comment: Two commenters were concerned with the level and type of audits required by Section 26.80(c). They asked for clarification as to what level of review the Commission would expect for procedures that fall under a regulatory review, such as

, technical specifications. Would they be reviewed by a PORC or a SORC, or off-site safety I

review? Are plans and pmcedures for compliance with this regulation part of the quality

! assurance program - would they be reviewed by the station operations review committee j or the plant operations review committee? (Meeting Comments: M-1.42; M-1.43; M-l 1.165)

Resoonse: The rule specifics that the audits are to be conducted by people who are expert in the subjects being audited and that the results of the audits will be reviewed I and acted upon by senior site and corporate management. The NRC sees no need to I

require any other review. See: Final Rule, Sections 26.80(b) and 26.80(c).

17.1.2

(

l Comment: One commenter stated that the rule should be clarified as to whether joint audits orjust audits done by others would be allowed. (Meeting Comment: M-1.170)

Resnonse: The NRC believes that the current wording of the rule accurately mflects its intent thatjoint audits, contracted audits, and audits done by the licensee are acceptable. Obviously, a contractor may wish to audit its program and may do so in {

addition to the licensee audit.

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17.2 Audits of Contractors

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1 Several commenters questioned whether the licensee or the NRC is responsible for auditing a contractor's fitness-for-duty program.

I 17.2.1 Comment: Two commenters stated that, although the rule allows the licensees to accept audits of their contractors' fitness-for-duty programs conducted by other licensees, NRC representatives at the fitness-for-duty workshop in Rockville, Maryland stated that each licensee is responsible for the implementation ofits contractor's programs; mliance on an acceptable audit by another licensee would not shield the licensee from NRC enfomement action. Holding each licensee responsible for a bad audit would force 17-1 a

l licensees to duplicate audits. This inconsistency in the NRC's position should be clarified. ,

(Letter Number: 309. Meeting Comments: M-1.168; M-1.169.)

Resoonse: The intent of the wording in the proposed mie is to reduce the burden on licensees by allowing audits of contractors to be shared between licensees. The l

intent is also to reduce the burden on contractors who provide personnel to several utilities by reducing the number of required audits. However, each licensee has the ultimate responsibility to ensure that all contractors performing activities within the scope of the rule comply with the rule. See: FRN, Supplementary Information, Section 16.2. ,

17.2.2 Comment: One commenter believed that the provision in Section 26.80(a) ,

which makes the licensee responsible for " implementation of corrective action in the contractor's program" should be deleted, as this is the contractor's responsibility. (Letter l Number: 271)  !

I Resoonse: The NRC does not agree with this commenter. As noted in the j discussion of comments pertaining to the scope of the rule, the licensee is the granting authority for unescorted access to protected areas and so is responsible for all actions related to the safe and secure operation of their facility. This obviously includes the fitness for duty and the reliability of any people to whom unescorted access is granted, whether contractor or licenset employee. Only by assuring that necessary corrective actions are taken by the contractor can the licensee be assured that its obligations to the NRC and the public are met.

17.3 Auditor Qualifications Commenters requested clarification on auditor qualifications.

17.3.1 Comment: A few commenters asked for clarification on the qualifications of auditors as envisioned in Section 26.80. They stated the term " qualified" should be defined in the context of the rule; it could mean qualified medical, psychological, and laboratory personnel. One commenter suggested the section be revised to read: ". . . conducted by mdividuals qualified as auditors in accordance with ANSI /ASME N45.2.23." (Letter Numbers: 252;354;373. Meeting Comment: M-1.175.)

Resnonse: The NRC believes that current wording in the rule is adequate to define auditor qualifications. The intent of this section is to ensure that a person, for example, who is not a licensed physician and has no knowledge of substance abuse is not assigned to evaluate the effectiveness of a particular Medical Review Officer's decision-making. Similarly, the NRC expects that persons who are evaluating testing laboratories will be knowledgeable about the forensic implications of laboratory procedures. Because people who possess the requisite special skills to conduct these audits are likely to be relatively rare and their services needed only infrequently, licensees will probably find it necessary to contract for appropriate audit staff rather than staffm' g an entire audit team from their quality assurance programs. Current wording in the rule is intended to recognize and encourage such an approach to staffing program audits. See: FRN, Supplementary Information, Section 16.2.

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17.3.2 Comment: Two commenters recommended that Section 26.29(b) include fitness-for-duty program auditors among those to whorn personal information can be disclosed. (Meetmg Comments: M-1.164; M-1.166; M-1.167)

Response: This recommendation has been adopted. The NRC has revised the wording of Section 26.29(b) to expand the definition of "those licensee personnel who have a need to have access to the information in performing assigned duties" to include

" audits oflicensee and contractor programs. . . ."

17.4 Frecuency of Audits Commenters questioned the fmquency of audits provided in the proposed rule.

17.4.1 Comment: A number of commenters responded to the proposed frequency of audits. Most commenters thought the 13-month penod was excessive due to cost and logistics pmblems. Commenters recommended replacing this 13 month period with bi-annual,3-year, or 5-year audits. One commenter agreed with the proposed 13-month period. (LetterNumbers: 269;271;275;281:317;326;330;340;343;353;354;356; 373. Meeting Comments: M-1.171; M-1.172. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC has slightly modified the Section 26.80(a) requirement for an audit frequency to be nominally every 12 months. This will provide a little flexibility in conducting annual audits, which was the intent of the original 13-month frequency. The audit frequency is based on the need to assum the reliability and accuracy of chemical testing procedums. As industry experience with fitness-for-duty programs accumulates and is made available to the NRC, de Commission may re-evaluate the frequency of required audits if warranted. See: FRN, Supplementary Information, Section 16.2.

17.5 Other Issues Otherissues mlated to audits of fitness-for-duty programs were also raised by the commenters.

17.5.1 Comment: One commenter stated that Section 26.80(a)is too prescriptive as compared to the Safeguards area (security) and Emergency Pianning areas. The commenter prefermd the use of the term " reviews" rather than " audits." (Letter Number: 271) ,

Resnonse: The NRC is satisfied that C.c vne ' W. dit" accurately reflects its intent. An audit is considered part of the meas n - f". pe r management of the program.

17.5.2 Comrutal: One commenter requested that the phrase "after approval of their program as defined in Section 26.23" be added after the phrase " implemented by contractors in Section 26.80(a)." (Letter Number: 330)

Response: The NRC does not want to inhibit a licensee that may wish to audit a contractor's program as part of the review and approval process.

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17.5.3 Comment: Two commenters recommended adding the phrase "if any" to qualify the term " recommendations" in the first sentence of Section 26.80(c). One of these commenters also suggested that the wording of this section be modified to allow results of the audits to be reported to senior corporate management and not necessarily plant management. (LetterNumbers: 252;284)

Resnonse: The NRC has implemented the wording changes recommended in this comment. The NRC expects that plant management will be provided with audit reports by senior corporate management but does not see a need to explicitly require it at this time.

17.5.4 Comment: A number of commenters requested that the wording in Sections 26.80 (a) and (b) be changed to eliminate the term " effective." These sections should be revised to state that the licensees' compliance with the regulations is sufficient. (letter Numbers:. 264; ?71; 275; 278; 298; 306; 317; 326; 343; 349; 373. See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC intentionally has used the word " effectiveness" throughout the rule to ensure that all affected parties maintain an overall concem for the rule's objectives rather than simply focusing on documentation of program compliance.

Although compliance is important, the Commission's overriding concern is an answer to the question,"Is the program achieving its goals?" See. FRN, Supplementary Information, Section 16.2.

I7.5.5 Comment: One commenter suggested that the term "on site" be deleted from Section 26.80(a). (Letter Number: 284)

Response: The comment has been adopted.

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l l-18.0 LEGAL ISSUES The legality of the proposed rule was a principal concern of many commenters.

Commenters raised legalissues regarding the constitutionality of the proposed rule, 4 collective bargaining agreements, the public disclosure of fitness-for-duty information, the preemption of state and local law to implement the provisions of the proposed rule, the relationship of the Federal Rehabilitation Act to the proposed rule, and the NRC's authority to adopt the rule. Other issues related to the legality of the rule were also raised by a number of commenters.

18.1 Constitutionality Issues A principal concern of many er menters was the constitutionality of the rule.

I8.1.1 Comment: Many commenters argued that the proposed rule would violate the Fourth Amendment to the U.S. Constitution. They generally argued that urinalysis is an unreasonable search or seizure and that any type of drug testing without probable cause would violate the Fourth Amendment. One commenter noted that r.iany licensees, as private employers, are not subject to the Fourth Amendment. However, the fitness-for-duty rule may eliminate such immunity and cause all existing licensee fitness-for-duty programs to fail should the NRC's rule be found to be unconstitutional. This commenter and others proposed that the Commission postpone issuance of a final fitness-for-duty rule until the Supreme Court renders its decisions m the Von Raab and Burnlev cases in 1989.

These cases are expected to provide important guidance on the permissibility of fitness-for-duty requirements. (letterNumbers: 9;16;24;60;232;251; 263;269;273;276;286; 290;293;295;310;311;313;315;322;323;325;332;334;336;342;352;359;370)

Resnonse: The NRC has carefully considered the arguments that individual rights projections under the Fourth Amendment to the U.S. Constitution will be violated by this fitness-for-duty rule. The Commission has concluded its rule would not be a violation of the Constitution. It is well established that nuclear power plant workers have diminished expechtions of privacy in the work place because of the important public safety aspects of theirjobs. People working in nuclear power plants are highly regulated and are arguably within the ambit of Shoemaker v. Handel. 795 F.2d 1136 (3rd Cir.1986). Also, the Supreme Court has rendered its decisions in both of the above cited cases since the comment period on this proposed rule. In both cases the Court decided in favor of drug testing in the context of the circumstances presented in the cases. Neither case presented issues in the context of the imperatives of nuclear safety nor did either address random testing. The logic of those cases, however, gives the Commission added assurance that this rule represents a proper and prudent regulatory action for the protection of public health and safety. The NRC will continue to closely monitor future case law to assess its consistency with this rule.

I8.1.2 Comment: Three commenters expressed their belief that the random testing provisions of Section 26.24 would violate workers' constitutional right to privacy in that such testing would,in effect, allow employers to regulate the private lives of their employees. (Letter Numbers: 60; 233. Meeting Comment: M- 1.17.)

18-1

Resnonse: The NRC believ. s that random drug testing will not violate workers' constitutional right to privacy. It is already well established that. people working in nuclear power plants have diminished expectation of privacy in the work place with respect to fitness-for-duty issues. For example, contml room operators are licensed under rules (10 CFR Part 55) that require medical examination biennially and general good health. All personnel and their hand-carried items are subject to search upon entering the protected areas of nuclear power plants, including pat down searches when metal and explosive detectors are not working or when there is suspicion that the person may be attempting to bring proscribed items into the protected area. Most, if not all, licensees of nuclear power plants also are committed through their security plans under 10 CFR Part 73, to conduct background investigations, administer psychological examinations, and observe employees for indications of aberrant behavior. Licensees also have behavioral observation programs that follow Edison Electric Institute guidelines. Finally, all persons with unescorted access to nuclear power plants are, by Federal law, sub, ject to a criminal history records check that requires the taking of fingerprints and the submission of the fingerprints to the Federal Bumau ofInvestigation. The pmvision of a urine sample or taking of a breathalyzer test is a small increment in the diminished expectation of privacy under which persons work in a nuclear power plant. Accordingly, the NRC concludes that its rule does not constitute an unconstitutional invasion of the right of privacy.

18.1.3 Comment: One commenter believed that Sections 26.27(c) and 26.29(b) would violate workers' constitutional rights to due process and to be shielded from self incrimination. (LetterNumber: 323)

Resnonse: The Section 26.29(b) provisions for the protection ofinformation do not infringe upon the right of a person to not meriminate himself when it allows licensees and contractors to disclose personal information to " appropriate law enforcement officials under court order . . ." In the Commission's view the case of Schmerber v. California, 384 U.S. 757 (1966) controls the issue. In that case the Court upheld the taking of a blood sample for alcohol analysis against a Fifth Amendment challenge. A urine sample is no more incriminating. Likewise, the Section 26.27(c) provision that a worker's refusal to provide a specimen and resignation prior to removal would be recorded as a removal for cause does not violate the right to due pmcess nor indicate guilt until innocence is proven.

There would be no guilt here in the constitutional sense; the removal action would result from the worker's violation of a reasonable company policy. Nor would there be a violation of due process because the worker would have the benefit of prior knowledge of the, company policy, notice and opportunity to respond, and an internal management review.

18.1.4 i

Comment: One commenter stated that the possible damage to peopic and the environment caused by someone impaired is of greater concem than individual rights.

(Letter Number: 23) i Resnonse: The NRC believes that this comment's attempt to weigh concern for individual rights against the damage that can be done to public health and safety by an impaired nuclear power plant worker is both a futile and needless exercise. There is no j doubt that this Commission and its licensees must take all reasonable measures to ensure I the safe operations of this nation's commercial nuclear power plants. The Commission believes that this rule will be an effective step toward that goal. Yet, this Commission must also strive to protect and preserve the individual rights of nuclear power plant workers by 18-2

t every feasible means that is consistent with its constitutional and statutory responsibilities.

To this end, the NRC has taken great care to provide strict specimen collection procedures, chain-of-custody, laboratory certification, test confirmation, and confidentiality l requirements within the rule. The Commission has also provided safeguards in the program to assure the fairness, uniformity, and accuracy of random testing. Stringent quality assurance requirements are imposed upon the licensees, contractors, and vendors as well as upon the laboratories that will be corducting the chemical tests to ensure that test results will be accurate and that false positive results will be essentially climinated. The NRC believes that tMs rule thereby will accomplish the two goals of ensuring public health and safety and pre'erving the individual rights oflicensee employees.

I8.1.5 Comment: One commenter stated that the NRC should authorize licensees to have a random testing program rather than requiring such a program. The commenter believed that such a change to the rule would make it more likely to pass legal scrutiny.

(LetterNumber: 376)

Resnonse: The NRC has concluded that this fitness-for-duty rule as published will pass legal scrutiny and does not need to be changed in order to enhance a positive judicial response.

18.2 Federni Rehabilitation Act Commenters expressed concern regarding the Federal Rehabilitation Act and its relationship to the provisions of the rule.

18.2.1 ,

Comment: Two commenters expressed concern whether Section 26.27(b)(2) would discriminate against potentially disabled persons contrary to Federal law. (Letter Numbers: 271;311)

Resoonse: The Rehabilitation Act of 1973, as amended, does not protect an employee whose current use of drugs or alcohol prevents him or her from performing the duties of his or herjob. See, for example,10 CFR 4.101. A worker whose urine or breath sample tests positive for drugs or alcohol is obviously a current user whose continued unescorted access to plant vital equipment constitutes a direct threat to nucicar safety. Ilowever, a person who enters into an employee assistance program and whose subsequent tests are negative is not a current user and would be entitled to the protection of the Federal Rehabilitation Act ifit were applicable to his place of work because of his employer's receipt of or benefit from Federal financial assistance. The Commission does not provide any Federal financial assistance to nuclear power reactor licensees. Whether or not any other Federal agencies provide such assistance is not known to the Commission.

Each licensee implementing this part will need to determine for itself whether it is receiving such assistance.

18.3 Preemotion of State and Local Law Commenters raised issues related to the preemption of state and local law to implement the provisions of the rule.

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l 18.3.1 Commem: Many commenters suggested that the NRC should explicitly state that the rule preempts confheting state and local law. A variety of state laws was cited that potentially conflict with the fitness-for-duty rule including: (1) restrictions on disclosure of confidential medical information; (2) prohibitions on random drug testing; and (3) restrictions on sanctions imposed on workers who test posidve. Several commenters also contended that certain aspects of the proposed rule are beyond the Commission's statutory authority and mandate under the Atomic Energy Act. They argued that i.:se aspects should be deleted and left to the discretion of individual licensees. Training requirements and provision for appeals procedures are among the parts of the rule that these commenters believed were beyond the NRC's authority. (letter Numben: 228;271;275; 307;309;311:3i5;316,317;324;325;327;329;340;349;359. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The Atomic Energy Act of 1954, as amended, preempts to the Federal Government the field of n:gulation of nuclear power reactors m all matters pcrtaining to radiological safety of operation. See 10 CFR 8.4 and Pacific Gas and Electric Co.. v. State Energy Resources Conservation and Development Comm. 461 U.S.190 (1983). However, state laws on possession, sale or use of controlled substances and alcohol were enacted with broad social goals in mind rather than radiological safety. Thus, such laws would not be preempted. There would be preemption in the r:.re case where a state sought to control fitness-for-duty of nuclear plant employees for radiological safety purposes or a state law that made compliance with the NRC's fitness-for-duty rule difficult or impossible.

18.3.2 Comment: Three commenters raised issues related to potential tr 'iability.

One commenter endorsed the idea that licensees should be held harmless under state tort law when the NRC fitness-for-duty regulations are followed. Another commenter stated that licensees should not be permitted to require that workers sign liability waivers related to drug testing. (letter Numben: 307;310;370)

Ersponse: The NRC would decline fmm allowing licensees to be held harmless under state tort law both because such action is probably not within the Commission's power nor would it be good public policy. The NRC would also discourage licensees from requiring workers to sign liability waiven related to drug testing.

18.3.3 Comment: One commenter argued that, because nuclear power plant workers are not members of the military, drug test results obtained through the fitness-for-duty program should not be admissible as evidence. (Letter Number: 288)

Resoonse: The results of chemical testing shall be admissible as evidence under normaljudicial evidentiary rules. The NRC has no power to change the rules of evidence in civil and criminal couns.

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18.4 ;Public Disclosure of Information Several commenters expressed concem regarding the public disclosure of fitness-for-duty progmm information, including information provided under the Freedom of Information Act.

18.4.1 Comment: Several commenters recommended that the NRC should provide

. guidelines on when testing information is disclosable. They asked the following questions.

Must it be disclosed whenever requested by a listed party? Does the licensee have any duty

'of disclosure to these parties? Does disclosure violate employee projections afforded under -

the U.S. or a State Constitution? (Letter Numbers: 252;285;309;329;375)

Response: Section 26.27(a) has been amended in the final rule to provide that testing information will be made available only when supported by a signed release from the affected individual. The NRC has decided to retain the provisions m Section 26.29(b)

L regarding disclosure of testing information. Under this section, there is no duty to provide such information unless it is requested. All of the patential recipients ofinformation listed in Section 26.29(b) potentially have legitimate uses for the information in furtherance of the

' objectives of the fitness-for-duty rule. Moreover, projections ofindividual privacy in the -

rule are deemed sufficient.

I8.4.2 Comment: One commenter noted that Section 26.29 authorizes licensees to disclose protected drug test information to the NRC but fails to identify criteria by which the Commission will protect this information from public disclosure. The conunenter recommended that the Commission should inform licensees whether it was going to rely  ;

upon the Firedom ofInformation Act to protect the confidentiality of this information and, if so, what specific exemption under the act would be invoked. (Letter Number:' 309)

Response: The NRC will not request the names of individuals found to have violated a licensee's fitness-for-duty program except in unusual situations involving safety and investigative matters such as malfeasance in the administration or management of the fitpess-for-duty program. The names and records ofindividuals obtained by the NRC will be exempt from disclosure under the provisions in 10 CFR 2.790(a)(6) and (7).

18.5 Collective Baroninine Several commenters raised issues regarding collective bargaining agreements, and the effects of collective bargaining agreements on fitness-for-duty prognun implementation,

- and unifcun program standards.

I8.5.1  !

Comment: A number of commenters stated that the proposed fitness-for-duty

- regulations will conflict with existing collective bargaining agreements in such areas as  ;

permissible types of testing and sanction?. They noted that the General Counsel of the {

National Labor Relations Board has taken the positie that drug testing is a mandatory j subject of bargaining under the National Labor Relations Act. One commenter argued that existing fitness-for-duty programs in a collective bargaining agreement be exempted from the NRC fitness for-duty requirements. Another argued that additional time (perhaps until i expiration of an existing agreement) for implementation be allowed where existing 18-5 l

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collective bargaining agreements cover fitness for duty. (Letter Numbers: 223;263;267; 271;293;295;302;308;311;332;333;370. Meeting Comments: M-1.77; M-1.78; M-1.102; M-1.131; M-1.133.)

hsponsg: The NRC has determined that the fitness-for-duty rule will not violate the National Labor Relations Act nor Memorandum GC 87-5 issued by the General Counsel of the National Labor Relations Board. The fitness for-duty rule is directed at arotection of public health and safety from operation of nuclear power plants and not to 1 abor relations. It is possible that implementation of the fitness-for-duty rule may conflict with existing collective bargaining agreements entered into by individual licensecs.

However, the terms and conditions of collective bargaining agreements must not violate the law and illegal subjects in an agreement are not subject to enforcement. Moreover, the  ;

terms of existing labor contracts are considered to be subject to subsequent changes in the law. Consequently, the Commission has chosen to make no special allowances for fitness-for-duty rule conflicts with an existing collective bargaining agreement.

18.6 Emolovec Assistance Program One commenter raised a concern over the NRC's authority to require employee assistance programs.

18.6.1 1

Comment: One commenter believed that requiring licensees to provide employee assistance programs is beyond the NRC's statutory mandate to provide reasonable assurance of the public health and safet; The commenter recommended that the provision of such programs should not be mandated by the rule but, instead, be left to the  ;

discretion oflicensees. (LetterNumber: 309) l Resoonse: In the Commission's view, the employee assistance program can be incorpor wed in a Commission rule under the broad scope of Section 161 of the Atomic Energy Ac t. This fitness-for-duty rule is r-omulgated under Section 161, among others, of that Act. Section 161i(3) gives the NRC authority to promulgate rules to govern any activity authorized pursuant to the Atomic Energy Act, including operation of facilities, to protect health and safety. The employees assistance program incrementally adds to safety by giving workers with fitness-for-duty problems a non-threatening avenue to resolve those problems, thus removing a potential for compromising the safety of operation of nuclear power reactors.

18.7 Administrative Procedures for Alcohol Several commenters raised an issue regarding the adequacy of the notice of proposed rulemaking in relation to the alcohol-related provisions in the final rule.

I8.7.1 l

Comment: Several commenters questioned whether the notice of proposed i rulemaking was adequate under the Administrative Procedures Act to cover the addition of l alcohol-related provisions in the final rule. Several commenters recommended that the Commission not include prescriptive program elements dealing with alcohol abuse in this rule but to separately notice these requin ments for additional public comment. (Letter Nur- rs: 272; 275; 278; 279; 284; 290; 303; 304; 317; 347; 348; 349; 368; 375. See also subs. ..ans 3.5.23 and 3.5.24.)

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J Resnonse:  : Under the Administrative Procedure Act (5 U.S.C. 553) the Commission is obligated to provide in its notice of proposed rulemaking either the terms or substance of the proposed rule or a description of the subject and issues m, volved. Section 26.20 of the proposed rule specifically included alcohol within the scope of the licensecs' i fitness for-duty programs. Section 26.10 maoe the performance objectives applicable to 1 any substance, legal or illegal, that can adversely affect a person's ability to perform.

There is no doubt that alcohol is such a substance. Although the proposed rule text dir.not include prescriptive requirements for alcohol, the Commission expressly asked for  ;

. comment on the extent to which guidance should be given as to hicohol and prescription drugs. Standards for blood alcohol content were extensively discussed in the Statement of Consideration along with a Commission request for comment on whether the Commission should prescribe a cutofflevel for alcohol. Thus, the notice of proposed rulemaking clectly covered alcohol both in the terms of the proposed rule and in desenbing in some detail the 7 subject and issues involved. The public was well advised that alcohol testing was a subject within the rulemaking and that the Commission expected to resolve basic issues regar, ding testing for alcohol in the comment period on the proposed rule. Therefore, the inclusion in the final rufe of basic additional requirements for alcohol testing is, in the Commission's view, well within the scope of the proposal. There is no requirement that the additional rule text c' :aling with alcohol testing be published for separate comment rather than as part of the final rule.

18.8 Other Issues 1 Other issues related to the legality 'of the proposed rule were raised by a number of commenters.

18.8.1 Comment: One commenter asked who would be fined under Section 26.90 if a contractor employee causes a violation while under the influence of a drug. The commenter noted that the entity that gets fined should have control and oversight including determination of when the contractor tests its employees for substance abuse. (Letter

~ Nu;nber: 20)

Resnonse: This part is promulgated under the NRC's authority to regulate commetrial nuclear power plant licensees. It creates various required actions that must be carried out by those licensees. Licensees are always responsible for violations of NRC-rules and NRC licenses applicable to their operations.

IS.8.2 Comment: Two commenters questioned the need for and the application of Section 26.90. In particular, one of these commenters asked whether failure to comply with this rule due to being enjoined by local, state, or Federal courts would constitute a violation of this rule under Section 26.90, and, if such a violation occurred, what sanctions would result. (Letter Numbers: 281;317)

Resnonse: Section 26.90 sets out the authority for enforcement of violations of this fitness-for-duty rule. Similar language appears elsewhen:in the Commission's regulations, e.g.,10 CFR 20.601. Failure to comply due to being enjoined by a local or state court would, in alllikelihood, constitute a violation of this rule since these courts' authority would be preempted as to matters of radiation safety. An injunction issued by a Federal court would have to be obeyed and could provide a basis for defending against a notice of violation.

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l 18.8.3 Comment: One commenter asked how the fitness-for-duty policy would handle a situation it: which a worker tested positive for an illegal drug but claims that he used the l drug in a place where its use was not illegal (e.g.,in international waters) and is not under the influence of the drug during the test. (Letter Number: 59)

Resoonse: The principal objective of this fitness-for-duty rulemaking is to provide reasonable assurance that nuclear power plant pe:sonnel c.re not under the influence of any substance, legal or illegal or mentally or physically impaired from any cause, which ,

in any way adversely affects their ability to safely and competently perform their duties. '

The fact that the use of a substance was legal at the place where that worker used it is not relevant; the chance that past, present, or future use of that substance may have a negative effect on the worker's ability to perform his or herjob is very relevant. In addition to the  ;

issue ofimpairment, the NRC is also of the opinion that such a pattern of use suggests a l lack of reliability and trustworthiness, factors that are also of concern to the rule.

18.8.4 Comment: One commenter stated that a licensee should not be allowed to establish stricter standards for an fitness-for-duty program than the NRC required as the local stane%rd might be challenged in court and made unenforceable. (Letter Number: ,

275. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC desires that certain minimum standards be me t in I determining positive tests. Licensees who wish to impose more stringent cu% f standards for their own purposes are free to do so, provided that all provisions of the fhness-for-duty rule are met.

I8.8.5 Comment: One commenter recommended that interpmtations by the General Counsel should be disseminated within 30 days. (Ixtter Number: 330)

&sponse: This comment raises the issue that interpretation of the fitness-for-duty rule by the NRC General Counsel under Section 26.4 be disseminated within 30 days.  !

Such interpretations are rare, but when issued they are published in the Federal Register l and then codified in 10 CFR Part 8.

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19.0 COSTS /IIENEFITS l Commenters raised issues related to the anticipated costs and benefits cf the rule, including the costs to administer the testing and training programs, increme . .osts, the costs of employee assistance pmgrams (EAPs), the costs of legal challenges, the indirect costs to workers in the event of a false positive, and the costs of overestimated benefits. Other issues related to the costs and benents of the rule were also raised by commenters.

19.1 Costs to Administer the Testine and Trainine Procrams Commenters questioned the costs to administer the testing and training program provisions of the rule. Several of these commenters raised issues related to the backfit analysis of the proposed rule.

I9.1.1 Comment: Several commenters found that the costs of administering a random testing program were undentated. For instance, they thought that the cost of testing per specimen, the cost of a Medical Review Officer, and the cost of sorting out false positives and false negatives were all understated. (1xtter Numben: 19;314;326;340;356)

Resoonse: The NRC has gathered additional information regarding the costs of the various elements of fitness-for-duty programs since the backfit analysis was prepared.

These data show that most of the existing cost estimates used in the analysis are very generous. Forinstance, the costs of testing per specimen included in the backGt analysis are higher than those suggested by one of the commenters. The NRC does, however, agree with some of the commenters' concerns and has adjusted the cost estimate to include the costs of: (1) additional personnel to administer the testing and training programs; (2) one person for program administration and recordkeeping; (3) one person for collecting and processing of specimens; and (4) a Medical Review Officer.

19.1.2 Comment: One commenter stated that a program that does not include random testing (a for cause only testing program) would be much more cost-effective since funds would not be wasted on testing employees without drug abuse problems. (Ixtter Number:

370)

Resoonse: A fitness-for-duty program that did not include random testing

• would cost less. Nevertheless, the NRC believes that there is sufficient evidence supporting the effectiveness of random testing in deterring and detecting substimce abuse that its use is warranted. See: FRN, Supplementary Infonnation, Section 19.2.

19.1.3 Comment: Two commenters noted that the NRC's estimate of 30 minutes of an employce's lost work time is too low. (Letter Numbers: 273;326. See also subsections 3.5.23 and 3.5.24.)

Resoonse: Lost productive work time can include time to secure and restart work in pmgress and travel between the employee's work station and the specimen collection station. The backfit analysis estimate of 30 minutes was based on an assumption of 15 minutes for travel to and from the collection site and 15 minutes at the collection 19-1

i.

station. This was based on the assumption that the majority of employees tested would I.

have work stations within the protected ama, and that at most sites the collection station would be effectively located. in or near the protected ama to accommodate the large number 1 of tests to be conducted. Based on the comments and further discussions with licensees, the estimated time has been increased to 60 minutes.

19.1.4 Comment: Several commenters stated that, based on their experience in administering testing programs, the NRC cost estimates are inaccurate and have resulted in the draft backfit analysis significantly underestimating the cost ofimplementation. This cost for the licensee to implement the rule will be very high (ranging from $659,000 to

$1,000,000 for an initial cost and $664,000 for recurring cost at a typical plant) and will clearly outweigh the benefits received. (Letter Numbers: 16;59;265; 271;275; 278;281; 285;291;304;310;314;326; 329; 370. Meeting Comments: M-1.72; M-1.93. See also subsections 3.5.23 and 3.5.24.)

Resrxmse: These many general comments on the costs and benefits of this program have been thoroughly considered and a detailed response is presented in Federal .

Register Notice Section 19.2. The Commission's backfit analysis as amended in response ]

to some of these comments does not reflect as high a total cost for implementing an i effective fitness-for-duty program as these commenters have estimated. The Commission j considered only incremental costs of the rule over existing programs. The Commission is confident that the costs of this program will be well spent m light of the enhanced safety of nuclear operations that this program will produce.

19.1.'S l

Comment: One commenter thought that the cost ofinitial drug awareness training is substantially understated. (Letter Number: 314)

&sponse- The estimated cost ofinitial drug awareness training has been adjusted to include at least one hour ofinitial training for all employees and at least four additional hours of initial training for supervisors.

19.1.6 Comment: Several commenters thought that the estimated cost ofimplementing the rule is greatly underestimated--by at least a factor of 3. Costs not included were the employee lost work time due to testing, refresher training cost (2-hours), the administrative and tracking programs and the QA requirements the added testing would generate. (Letter Numbers: 275;303;314;326;356. See also subsections 3.5.23 and 3.5.24.)

Restxmse: These comments are addressed in the Costs / Benefits section of FRN, Supplementary Informatic,n, Section 19.2.

19.1.7 Comment: One commenter believed that if a licensee conducts a screening test it is not necessary for the lab to re-perform the test since this pnxluces no benefit at additional cost. This cost is estimated to be in excess of $150,000 annually, and delay confirmation of each test by at least 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. (Letter Number: 19) i 19-2

Resnonse: Allowing licensees to conduct initial svening tests does produce benefits in that it reduces the costs of the testing pmgram relative to having an HHS-certified laboratory perform all tests which must mclude a screening test as required by the HHS cenification pmcess. Licensees need submit only positive specimens and a sample of negative specimens from the on-site tecting to the HHS-certified laboratory for confirnstory testing. This should reduce the expenses and the time necessary to determine the results of the testing.

19.1.8 Comment: One commenter thought that the cost to meet the requirements of the DHHS Guidelines will cost mom than estimated by a factor of 3. (Letter Number: 275.

See also subsections 3.5.23 and 3.5.24.)

Resnonse: The NRC believes that the basic requiretrents of the HHS Guidelines, as incorporated in the NRC Guidelines for Nuclear Power Plant Drug and Alcohol Testing Programs, must mmain a part of the fitness-for-duty program because the Guidelines contain thorough, well conceived procedures for ensuring the quality of the testing program.

19.1.9 ,

Comment: Two commenters argued that several recurring costs were understated including the costs of updating policies and procedures, updating agreements with contractors' vendors, appeals and grievances, reporting mquirements, and a tracking system. (Letter Numbers: 275;314;326. See also subsections 3.5.23 and 3.5.24.)

Resoonse: The NRC disagrees that any change to the backfit analysis is needed l

} for recuning costs of written procedures and contract modifications. The Commission i agmes that licensees incur mcurring costs for periodic revision to these documents, but sees no incremental costs attributable to the fitness-for-duty rule. Costs of periodic revisions would accrue even without the rule. Furthermore, only the costs for compliance with the rule need to be considered, not costs of elective changes. The backfit analysis contains only the one-time cost to modify these documents to meet the rule requirements. The Commission sees no need to alter its treatment of the other cost categories commented upon.

1 19.1.10 l Comment: One commenter believed that the backfit analysis fails to consider the costs of covering contractor personnel by a fitness-for-duty program. (Letter Number:

314)

Resnonse: The backf's analysis assumed an average of 1500 employees and contractors would be tested randomly at each plant. This estirr. ate was based on experience with the fingerprint cards submitted to the NRC in compliance with 10 CFR 73 57. This is the same population as would be covered by the fitness-for-duty rule. After receiving these comments, the Commission checked these estimates with severallicensees and was satisfied that the estimate is appropriate. In the NRC's judgment, no change is necessary to reflect the costs of covering contractor personnel.

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19.1.11 Comment: One commenter argued that the backfit analysis inconectly assumes that all nuclear facilities have testing, quality assurance, recordkeeping, and employee assistance programs that meet current standards. (Letter Number: 314)

Resoonse: This comment implies that not all plants have fully developed programs. Based upon information provided by NUMARC and INPO, the NRC understands that all licensees have implemented pograms that meet the Edison Electric Institute guidelines. Any costs incurred because these industry commitments to the Commission have not been met are considered costs for corrective action and not an impact by the present rulemaking. However, based upon the efforts by INPO to assure that all licensees had implemented programs to meet their commitments, the NRC concludes that only the incremental costs above existing programs are accurate cost data and little

" corrective action" will be required.

19.2 Casts of Emolovee Assistance Pronrams WAPs)

A commenter questioned the costs and benefits of EAPs.

19.2.1 i

Comment: One commenter thought that the cost of employee assistance programs was understated. (Letter Number: 314)

Resoonse: The NRC agrees that the costs of medical and counseling staff, training materials, and medical testing and treatment wem undemstimated, and has revised the backiit analysis to include additional personnel to administer the testing and training programs, in addition to the additional EAP staff provided for in the draft analysis.

19.3 Costs of Lecal Challenees A few commenters raised issues regarding the costs oflegal challenges and court decisions.

19.3.1 Comment: Three commenters thought that another unanticipated cost will be legal costs due to anticipated lawsuits associated with false positive tests and random drug testing. (Letter Numbers: 59;260;314)

Resnonse: The Commission agrees that there may be some costs associated with these legal challenges but has no basis for assessing these costs. Attention to quality controls, the costs of which wem included, should serve to minimize these legal costs.

19.4 Indirect Costs to Workers from False Positives  ;

A commenter questioned the indirect costs to workers from false positives in terms oflost j man-hours and appeals and grievance procedures.

19.4.1 Comment: One commenter thought that the economic analysis did not accurately treat the underlying costs to workers of being found false positive. (Letter Number: 314) 19-4

Resoonse: The program has been designed to essentially climinate false positives. The NRC agrees that the costs to an individual could be substantial should such an event occur but has not included these indirect costs in a quantitative manner for lack of a means for estimating them fairly. The NRC has considered these indirect costs in a qualitative sense, and has determined that the benefits warrant any such indirect costs (which are highly unlikely) in addition to the quantified direct costs.

19.5 . Other Issues Other issues related to the costs and benefits of the proposed rule were raised by several commenters.

19.5.1 Comment: One commenter noted that public utility commissions do not look favorably on rate increases and they may not be willing to approve the costs associated with the rule. (Meeting Comment: M-1.100)'

Resoonse: The NRC has no control over the ratemaking decisions of state public utility commissions. The NRC's obligation under the Atomic Energy Act is to protect the public health and safety from the radiological hazards resulting from operation oflicensed facilities. It is the NRC's belief that most if not all expenditures by licensees related to the assurance of public health and safety have been found to be allowable costs by such commissions for ratemaking purposes.

19.5.2 Comment: Several commenters believed that the NRC should justify the proposed fitness-for-duty regulation in accordance with 10 CFR 50.109(a)(3) because: (1) the Commission has already prepared the required backfit analysis, and (2) there is no basis to determine that the proposed regulation is within the " adequate protection" exception of 10 CFR 50.109(a)(4). (Letter Numbers: 23;312;316; 331;339; 349)

Resoonse: The NRC agmes that the rulemaking should be justified under the provisions of 10 CFR 50.109(a)(3).

19.5.3 Comment: One commenter stated that since many employees do not belong to unions, and some unions are not competent to protect their members, the employer or the NRC should pay for the costs associated with an accused person's physician verifying medical recoids and the previous use of medicines. (Letter Number: 3)

Response: The NRC has no authority to reimburse a private citizen for personal medical expenses associated with the fitness-for-duty rule. It has no objection to an employer paying those costs.

19.5.4 Comment: One commenter recommended that the final rulemaking should show a connection between the mle and any assumed benefits, and where possible, should quantify those benefits. (Letter Number: 314) 19-5

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. Essents: ' These comments suggest that the benefits of the fitness-for-duty rule should be estimated by the NRC with more specificity. Theyrincipal benefit of the rule, .j will be enhanced safety assurance. Certain secondary benents such as improved i .

j woductivity are cited in the draft backfit analysis. In the NRC's view these secondary xne fi ts are mal and w ill ex ist. Quant ficatin i h benefits is not deemed necessary, of t ese however, to support and justify the rule since the added safety assurance is deemed to be a sufficient benefit. See: FRN, Supplementary Information, Section 19.2.

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l REFERENCES Barnes, V., Fleming, I., Grant, T., Hauth, J., Hendrickson, P., Kono, B., Moon, D.,

Moore, C., Olson, J., Saari, L., Scott, W., Toquam, J., Wieringa, D. and Yost, P.

(1988). Fitness for Duty in the Nuclear Power Industry: A Review of TechnicalIssues (Report No. NUREG/CR-5227). Washington, D.C.: U.S. Nuclear Regulatory Commission.

Moore, C., Barnes, V., Hauth, J., Wilson, R., Fawcett-Long, J., Toquam, J., Baker, K.,

Olson, J., Christensen, J. (1989). Fitness for Duty in the Nuclear Power Industry: A Review of Technical Issues. Suonlement 1 (Report No. NUREG/CR-5227). Washington, D.C.: U.S. Nuclear Regulatory Commission.

Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis. (1988).

Washington, D.C.: NationalInstitute on Drug Abuse.

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i APPENDIX A t'

Numerical List for Public Comment Letters 3

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I I

i APPENDIX A Numerical List for Public Comment Letters Letter #

{ Docket) Name/ Title Affiliation / Address 001 Unsignal 002 Gerrity, John IBEW*, U-2 Business Representative, System Council, U-2 7 Centre Drive, Suite 4 Jamesburg, NJ 08887 003 Christensen, Victor O. 1107 Live Oak Circle Knoxville, TN 37922 004 Sharp, Philip R. U.S. House of Representatives Chairman, Subcommittee on Energy & House Office Bldg, Annex No. 2, Room H2-331 Commerce Washington, DC 20515 005 Turner, Oran R. 411-15th St.

Silvis, IL 61282 006 Carter, C.E., Jr. IBEW, Local 51 Assistant Business Manager 301 E. Spruce Street Springfield,IL 62703 007 Zebelman, Arthur M., PhD., DABCC Laboratory of Pathology Clinical Chemist and Toxicologist Nordstrom Medical Tower /P.O. Box 400404 Seattle, WA 98104 9704 007 Batjer, John D., M.D. Laboratory of Pathology Laboratory Director Norstrom Medical Tower /P. O. Box 400404 Seattle, WA 98104-9704 008 Hamilton, Horace E., DABFT, CPC Harris Medical Laboratory Director of Toxicology 1401 Pennsylvania /P.O. Box 2981 Fort Worth, TX 76113 009 Purcell, James E. 59481 Woodcreek Drive St. Helens, OR 97051 010 Wolf, Gregory W. IDEW, local 30 Business Manager 1102 East Arlington Rd Erie, PA 16504 011 Schlosser, James M. IBEW, local 2279 Business Manager 287 - 1/2 Chestnut Street Meadville, PA 16335 012 Johnson, A.G. Oregon State University Director, Radiation Center Corvallis, Oregon 97331

• IDEW is an abbreviation for international Brotherhood of Electrical Workers.

A-1

Letter #

(Docked Name/ Title Affiliation / Address 013 Johnston, Harry IBEW,Imcal 147 President 505 Bascom Avenue Pittsburgh, PA 15212 014 Winters, Marc A. IBEW, Local 272 President 217 Sassafras Lane Beaver, PA 15009 015 Burkhart, John R. IBEW,Imcal 803 President P.O. Box 4130 Reading, PA 19606 016 Peterman, Kirk 694 S. River Road a Naperville,IL 60540 017 Brinker, Jim IDEW, Local 1124 Business Manager 17 Market Street Wanen, PA 16365 IBEW, U-9 #i 018 Parks, Joseph W.

President, System Council U-9 Box 1027, Rd.1 .

Bangor, PA 18013  ?

019 Goldberg, JJL Houston Lighting & Power Group Vice President, Nuclear P.O. Box 1700 The Light Company Houston, TX 77001 020 Owens, Gerald (no address given) 021 Robbins, John IBEW, Local 144 President P. O. Box 203 Cheswick , PA 15024 022 Wilson, W. E. Washington State University Associate Director Nuclear Radiation Center NuclearRadiation Center Pullman, WA 99164-1300 023 Nemethy, E. Ecology / Alert Secretary Box 621 ,

Bloomsburg,PA 17815 024 Nix, Harvey C. (no address given) 025 Cox, Ray A., Jr. RD #1, Box 430A Member,IBEW Coraopolis, PA 15108 OM Alisesky, Chris 633 Beechwood Avenue Member,IDEW Carnegie,PA 15106 027 Callen, Walter (no address given)

Member 1BEW 028 Christian, Robert hL 210 Cool Springs Road Member,IBEW White Oak, PA 15131 029 Stafford, James P. 1228 Harris Avenue  ;

Member,IBEW Pittsburgh, PA 15205

~ -m

Letter #

Oocket) Name/ Title Affiliation / Address 030 Laur, Rauel P. 122 Sharp Drive Member,IBEW West Mifflin, PA 15122 031 Pritchard, Joseph O. (no address given)

Member,IBEW 032 Tscheme, Larry J. IBEW,Ixcal 245 Assistant Business Manager 705 Lime City Road Rossford,OH 43460 033 Dietz, William C. (no address given)

Member,IBEW 034 Kulogy, Paul P. 7432 Perrysville Avenue Member,IllEW Ben Avon,PA 15202 035 Messina, Salvatore Painters District Council No. 6 Business Representative 2605 Detroit mcrue Painters and Decorators Building Cleveland,OH 44113 036 Kean, K. (no address given)

Member,IDEW 037 Cline, Nancy L. (no addmss given)

Member,IBEW 038 Owens, George J., Jr. 3203 Spangler Avenue Member,IBEW Pittsburgh, PA 15227 039 Colaizz, Peter C. 2101 Rauch Road Member,IDEW East Palestine, OH 44413 NO Shenider Thomas W. 2206 Crafton Boulevard Member,IDEW Pittsburgh, PA 15205 N1 Ruzicka, Richard E. 867 Salem Road Yorktown lleights, NY 10598 042 Hoover, Joseph R. 67455 Orr Road Rainier,OR 97N8 043 Sultin, Gene R (no addmss given)

Member,IBEW 044 Stanko, Byron K. 675 Navigation Street Member,IBEW Beaver,PA 15009 N5 lioover, William J. IBEW, Local 142 President 907 Valonia Street Pittsburgh, PA 15220 N6 Glass, William L. (no address given)

Member,IBEW 047 Jericho, David A. 1402 Barr Avenue Member,IBEW Pittsburgh, PA 15205 A-3

Letter #

(Docket) Name/ Title Affiliation / Address i

N8 Kay, Janice M. 154 Rioge Avenue i Member,IBEW Ben Avon, PA 15202 )

049 Banfield, Lany L. (no address given)

Member,IBEW 050 Cavington, Ralph W. 407 Charles Street l Member,IBEW Pittsburgh, PA 15210 '

051 Rombach, Gerald 193 Pinehurst Drive Member,IDEW Freedom,PA 15M2 .

052 McFarlane, Richard J., Jr. 149 South Bryant Avenue Member,IBEW Pittsburgh, PA 15202 053 Wheeler, Jarrett C. (no address given)

Member,IBEW 054 Culley,IPrry (no address given)

Member,IUEW 055 Swicch, Paul F. 207 Fifth Street Member,IBEW Mcdonald,PA 15057 056 0., Kenneth (no address given)

Member,1BEW 057 Hoover, William J. IBEW, Local 142 Pmsident 907 Valonia Street -

Pittsburgh, PA 15220 058 Malody, C. W. Advanced Nuclear Fuels Corporation Manager, Corporate Licensing 2101 Horn Rapids Road )

P.O. Box 130 Richland, WA 99352-0130 l J

059 Harrington, M. D. Star Route Barrington,NH 03825 060 Kelly, Robert G., Jr. forIndepenent Gmup Association Kelly, Harrington, McLaughlin & Foster 1700 Atlantic Bldg.,260 South Broad Street Philadelphia Electric Company Philadelphia,PA 19102 061 Douglas, Mary Lynn 1553 Radford Road Member,IBEW Pittsburgh, PA 15227 062 Kral, Raymond C. 7615 Steubenville Pike Member,IBEW Oakdale,PA 15071 063 Wolfe, Kenneth P. 3171 Maplene Avenue Member,IDEW Castle Shannon, PA 15234 064 Lockridge, William J. 706 East Pgh. McK. Blvd.

Member,IBEW North Versailles,PA 15137 065 Buzinski, Walt 710 6th Street Member,IBEW Charleroi, PA 15022 A-4

j" Letter #

(Docket) Name/ Title Affiliation / Address f

i 066 Shunsky, Benjamin J. Road #3, Box 345 Member,IBEW Canonsburg, PA 15317 067 Guidos, Andrew 628 Elm Street Member,IBEW Bridgeville,PA 15107 068 Nash, James 4411st Street, Box 43 Member,.BEW West Elizabeth, PA 15088 069 Dotson; !. E. 351 Niagra Drive Mecleer,IBEW North Huntingdon, PA 15642 070 Miller, Donald 2287 Valera Avenue Member,IBEW Pittsburgh, PA 15210 #

071 Bettine, Charles #2, Sixth Street Member,IBEW Carnege, PA 15106 072 Jones, Theodore E. 126 South Graham Street i Member,IBEW Pittsburgh, PA 15206 1 073 Rodi, Nicholas 660Patterson Avenue Member,1BEW Bridgeville,PA 15017 074 Pavlovich, Charles J. 135 Pride Drive Me.nber, IBEW Belle Vernon, PA 15012 075 Renner, Gary W. 7704 Saint Lawrence Avenue Member,IBEW Pittsburgh, PA 15218 076 Erwin, John D. P.O. Box 62 Member,IBEW Hutchinson, PA 15640 077 Mathis, Ellis J. 915 Carden Court Drive Member,!BEW Monrowville,PA 15146 078 Turici, James 1. 3?R Bascom Avenue Member,IDEW Pittsburgi., PA 15214 079 Humbert, David L. 1400 Abers Creek Road Member,IBEW Pittsburgh, PA 15239 080 Staub, George L. 497 Calvert Street Member,IBEW Pittsburgh, PA 15227

^

081 Ritchart, Wayne 326 Palomino Drive Member,IBEW Oakdale,PA 15071 082 P&Prt, Jeffrey C. 449 Second Avenue Member,IBEW New Eagle, PA 15067 083 Luczho, Richard P. 5144 Caste Drive Member, Legislative Representative Pittsburgh, PA 15236 IDEW, Local 142 A-5

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Letter # k (Docket) . Name/ Title Affiliation / Address {

084 Pannier, Charles L. 5141 Hazel Street Member,IBEW Finleyville, PA 15332 085 Baker, Richard J. 33 PearlDrive Member,IBEW ' Pittsburgh, PA 15227

.1 086 JuBeck.Theordore J. 1308 Orchard Avenue J Member,IDEW New Kennsington,PA 15068  !

087 Ewig, Earl W. 329 Ridge Point Member,IBEW Bridgeville,PA 15017 088 Saldatte, David J. 143 Spartan Drive l Member,idEW BethelPark,PA 15102

)

i 089 Harmen, Ronald 201 Timberyoke Drive Member,IBEW Coraopolis,PA 15108 {a 1

090 Killosky, Diane 1335 Anderson Avenue, Apt.6 '

Member,IBEW Monongahela,PA 15063 091 Becze, David S. 925 Elwell Street Member,1BEW Pittsburgh, PA 15207 092 Kirmeyer, Jeffrey M. Ecx 150, McMorran Road Member,IDEW Gibsonia,PA 15044 093 Reinstodtler, J. L. 2771 locust Drive Member,IBEW Pittsburgh, PA 15241 094 Poziviak, John M. 605 Constitution Circle Member,IDEW Claitton, PA 15025 095 Walsh, Edward R. 2271 Bemard Street Member,IBEW Pittsburgh, PA 15234 I 096 Pfister, Joseph A. 200 Pickwick Drive Member,1BEW Bethel Park, PA 15102

(';7 Nemmer, Karl 150 Scout Avenue Member,IBEW Pittsburgh, PA 15210 098 Larson, Francis J. 205 Shellbark Street Member,IBEW Jefferson Boro,PA 15025 099 Maas, A. R. 233111aven Ilill Road Member, IDEW, Local 144 Sewickley, PA 15143 100 Scarlato, Rocco 1929 Penna. Avenue Member,1BEW West Mifflin, PA 15122 l 101 Bcdell, Charles 11. 1063 liighfiels Road i Member,IEEW Bethel Park, PA 15102 102 Fedela, A. R. 127 Wray Large Road Member, IBEW Clainon, PA 15025 A-6

Letter #

IDJgket) Name/ Title Affiliation / Address 103' Miller, Al 188K McChain Road Membe- IBEW Finleyville, PA 15332 104 West, Kenneth L 1405 Beech Street Member,IBEW McKeesport,PA 15132 105 Roell, R. J. Road #3 Member,IDEW Eighty Four, PA 15330 ,

i 106 Leigyel, Dale V. 410611arvey Avenue  ;

Member,IBEW Munhall,PA 15120 107 Guerrini, Larry D. 39 ButlerIAgan Road Member,1BEW, Local 144 Tarentum, PA 15084 108 Cane, Donald L. Box 495A, Road #3 Member,IBEW Monongahela, PA 15063 109 Bustinski, Richard A. 207 Fawn Drive Member,1BEW Clairton, PA 1502.i 110 Rusnak, Larry J. RD1, Box 100 Member,IBEW Fayette City, PA 15438 111 Anders, Barry RD2,130X479B Member,IDEW Monongahela,PA 15063 112 Kennedy, John D. Box 18 Member,IDEW Bonola,PA 15020 l 113 Cadvallada, George 5124 Dolores Drive Member,IBEW Pittsburgh, PA 15227 114 Polesak, Richard Cheswick,PA 15024 Membcr,IDEW, Local 144 115 Swiger, Edmund G. 23 Pearl Avenue Member,1BEW Pittsburgh, PA 15229 116 Reynolds, Robert C. 5518 Sagebrush Drive Member, IBEW, Local 144 Pittsburgh, PA 15236 117 Deitt, George D. 5210 Edwards Road Member, IllEW, Local 144 Murrysville,PA 15668 118 Stanzel, Michael E. 2447 Webster Avenue Member,IBEW West Mifflin, PA 15122 119 Semk, Mark D. 1652 Mt. Joseph Street Member,IDEW Pittsburgh, PA 15210 120 Milinski, George J. 3882 Delco Road Member.1BEW, Local 142 Pittsburgh, PA 15227 121 Episcopo, Vaughn 1720 Leolyn Street Member,IDEW Pittsburgh, PA 15210 A-7

Letter #

(Docket) Name/ Title Affiliation / Address 122 Burke, R. E. 138 W. Be11 crest Member,IBEW Pittsburgh, PA 15227 123 Lincoln, Robert M. RD2, Box 103 Member,IBEW Perryopolis, PA 15473 124 Garbart, James 114 Elmcrest Avenue Member,IBEW Monongahela,PA 15063 125 Schuttise, Arthur R. 1323 Illinois Avenue Member,IBEW Pittsburgh, PA 15216 126 Catlas, Steve J., Jr. 130 Wray Drive Member,IBEW C1airton, PA 15025 127 Moody, Lloyd 2108 Edwards Street Member,IBEW BethelPark,PA 15102 128 Moore, Edward P. 702Large Avenue Member,IBEW Cl?inon, PA 15025 129 liarris, Howard E. 60 AdmiralDewey Avenue Member,IBEW Pittsburgh, PA 15205 130 Pack, Robert J, 46 Westfield Avenue Member,IBEW, Local 144 Pittsburgh, PA 15229 131 Kozinko, Rick J. 9914 Grandview Avenue l Member,IBEW, Local 144 Pittsburgh, PA 15235 132 Hessom, Randy D. 4029 Greenwood Road Member,IBEW New Kensington, PA 15068 )

l 133 Behr, Lawrence W. 713 Memory Lane 1 Member,IBEW McKeesport,PA 15133 134 Kirsopp, John A. 2102 Rankintown Road Member,IBEW Pinleyville, PA 15332 135 Malone, John P. 3216th Street Member,IBEW Mcdonald,PA 15057 136 Dougherty, Arthur P. 114 Bartley Road l Member,IDEW Upper St. Clair, PA 15241 )

l 137 Walters, John 2814 Homestead-Duquesne Road 1 Member,IBEW, Local 144 West Mifflin, PA 15122 I l

138 Ray, James 103 Elizabeth Street l Member,IBEW, Local 144 Cheswick,PA 15024 139 Pacek, lori A. RD2, Box 48 Member,IBEW, Local 144 Tarentum,PA 15084 140 Russell, Frank T. 402 S. Broadway Membar,1BEW, Local 144 Scottdale,PA 15683 A4

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1 Letter # l (Docket) Name/ Title Affiliation / Address i 141 McNeil, Wade 819AJAX54 Member,IBEW, Local 144 North Braddock, PA 15104 142 Yaksetich, David R. 311 Stoneybrooke Drive Member,IBEW Cheswick,PA 15024 143 Watenpool, Robert A. 300 Mingo Road Member,IBEW, Local 144 Wexford,PA 15090 144 Andrews, James B. 129 Bucknell Drive Member,IBEW, Loca1144 Springdale, PA 15144 -

145 Quatchel, Lawrence II. 1501.ongvue Drive Member,IBEW, Local 144 Pittsburgh, PA 15237 146 Landis, Robert 813 Shirlie Street Member,IBEW, Local 144 Apollo, PA 15613 147 Albert Fruisinko 758 Jane Street Member,IBEW, Local 144 Pittsburgh, PA 15239 148 Dawson, Jerry 309 North Avenue Member,IDEW, Local 144 Pittsburgh, PA 15209 149 Pascarelle, Vitale C. 499 Chestnut Street Member,IBEW, Local 144 Springdale,PA 15144 150 Lyle, Richard L. 1403 Linden Street Member,IBEW, Local 144 Cheswick,PA 15024 151 Grendy, Jan T. 117 Bear Creek Road Member,IBEW Sarver,PA 16055 152 Hilliard, Daniel L 430 Argonne drive Member.1BEW, Local 144 New Kensington, PA 15068 153 Nuti, John E. 121 Deer Cnek Road !

Member,IBEW, Local 144 Saxonburg, PA 16056 154 Bayne, Karen 323 Shaw Avenue Member,IBEW, Local 144 Springdale, PA 15144 155 Burkhart, Nelson E. 455 Washington Street Member,IBEW Springdale, PA 15144 L 156 Richardson, Michael L 414 N. Euclid Avenue,1st Fl.

Member,IDEW, Local 744 Pittsburgh, PA 15206 l

l 157 Katl, Mark A. 344 Kenyon Street Member,IBEW, Local 144 Turtle Creek, PA 15145 158 Ciancio, Robert S. 521 R. Garfield Street Member,IBEW, Local 144 Springdale, PA 1514 159 Van Hom, William W., Jr. 213 Allegheny Member,IBEW, Local 144 Cheswick,PA 15024 A-9

letter # .

Occket) ~ Name/ Title' Affiliation / Address 160 . Clowes, Jack A. 378 Butler Street Member,IBEW Eona,PA 15223 161 Lloyd, James E. 37 Duquesne Coun Member,IBEW Springdale,PA 15144 162.- Ritter, Joseph S. 4412 Wildwood Sample Road Member,IBEW Allison Park, PA 15101 163 Schanck, Joseph L. 2437 Cobden Stnset Member,IBEW Pittsburgh,PA 15203 164 Schwartz, Richard K. 203 Ligonier Lane Member,IBEW, Local 144 - New Kensington, PA 15068 165 Miller, Mark R. 149 Hawthorne Member,IBEW, Local 144 Pittsburgh, PA 15209 166 Pfennigwerth, J. R. 619 3 Degree Road Member,IBEW, Local 144 Butler, PA 16001 167 Luff, Gary J. 207 Marzolf Road Ext.

Member,IBEW Pittsburgh, PA 15223 168 Boyda,Ted 64 Pasadena Street

' Member,IBEW, Local 144 Pittsburgh, PA 15211 169 Meier, Daniel N. 2513 AutumnwoodDrive Member,1BEW, Local 144 Glenshaw, PA 15116 170. Cridge, Alan W.. 6021 Middle Road ,

Member,IBEW ' Gibsonia,PA 15044 171 . Rutkowski, T. 109 N. Spruce Drive - ,

Member,IBEW, Local 144 Glenshaw,PA 15116 l

.172 Komer, Eric J. 949 Cleveland 4 venue Member,IBEW, Local 144 Brackenridge,PA 15014 173 Kirk, James R. 177 Black Hills Road Member,IBEW, Local 144 Pittsburgh, PA 15239 174 Ward, William T. 413 Alpine Village Drive Member,IBEW, Local 144 Monroeville,PA 15146 175 Ismmill, Michael 1310 Babcock Boulevard Member,IBEW, Local 144 Pittsburgh, PA 15209 j 176 Delo, Randy 1070 Crestwood Drive Member,IBEW, Local 144 North Huntingdon, PA 15642 l.

177 Nolan, Riehl E. 104 6th Avenue Member,IBEW,144 Pittsburgh, PA 15229 178 lowry, Gerald L Love Road Member,IBEW, Local 144 Valencia,PA 16059 A 10

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letter #

(Docket) Name/ Title Affiliation / Address 179 Loskoch, Anthony J., Jr. 5006 Lakeview Road Member,1BEW, Local 144 Gibsonia,PA 15044 180 Antoszewski, Rooert T. 6913 Greenwood Street Member,IDEW, Local 144 Pittsburgh, PA 15206 181 Valenti, David J. 1203 Spruce Street Member,IBEW Cheswick,PA 15074 182 Mink,lienry 925 Walnut Street Member,IDEW, Local 144 Springdale,PA 15144 183 Ilartle, Clifford B. 126 S. Ohio Street Member,IDEW, Local 144 Pittsburgh, PA 15202 184 Roeser, David E. 374 Pontiac Avenue Member,IDEW Pittsburgh, PA 15237 185 Skripets, Edward F. 340 Shaw Avenue Member,1BEW, Local 144 Springdale,PA 15144 186 Gibson, John R. 227 Pheasant Drive Member,IBEW, Local 144 Pittsburgh, PA 15235 187 Kraynik, P. Box 182A, Road #4 Member,IBEW, Local 144 Tarentum, PA 15084 188 Smith, liarry E., Jr. 1250 Camp Nancy Road Member,IDEW, Local 144 Apollo, PA 15613 189 'niomas, Jeanne 11 (??) Drive Member,IBEW, Local 144 Greensburg,PA 15601 190 Netrel, Mary Ellen 2473 Pleuchel Road Member,IBEW, Local 149 Sewickley,PA 15143 191 Williams, Frank, Jr. 308 N. Euclid Avenue 1 Member,1BEW, Local 144 Pittsburgh, PA 15206 192 lierrie, William 62 Evans Avenue Member,IBEW, Local 144 Pittsburgh, PA 15205 193 Landis, David A. 440 Grant Street Member,IBEW, Local 144 Springdale,PA 15144 194 McKeeve. James E. 6510 Clover Leaf Road Member,IDEW, Local 144 Verona,PA 15147 195 Ellis, Judy 5805 Penn Mall, Apt.1208 Member, IBEW, Local 144 Pittsburgh, PA 15206 196 Buriehower, Joe 22311ickory Street Member,IBEW, Local 144 McKees Rocks, PA 15136 197 lovino, Joseph A., Jr. 2165 Grandview Drive Member.1BEW, Local 144 Monroeville,PA 15146 A-11

I.etter #

fDocket) Name/ Title Affiliation / Address 198 Scariot, Ralph A. 14 Harrison Street Member,1BEW, Local 144 Pittsburgh, PA 15205 199 Drummond, James N., Jr. 366 School Street Member, IBEW, Local 144 Springdale, PA 15144 200 Shaffer, Gerald J. 1402 Fairmont Street Member,IBEW, Local 144 Cheswick,PA 15024 201 Murdy, Ray 218 High Bury Road

' Member,1BEW, Local 144 Cheswick,PA 15024 202 Davis, Dennis R. 231 Ridgeview Road Member, IBEW, Local 144 Sarver,PA 16055 203 Faulk, Susan 3547 California Avenue, #2 Member,IBEW, Local 144 Pittsburgh, PA 1521 204 Signature Unreadable 133412th Avenue Member,1BEW, Local 144 Natrona Heights,PA 15065 205 Legin, Mark F. 1929 Addison Avenue Member, IBEW, Local 144 West Mifflin, PA 15122 206 Beatty, Marvin F. P.O. Box 91025 Member,IBEW, Local 144 Wilkinsburg, PA 15221 207 Baker, Richard W. 5112 Baker Street Member,IDEW, Local 144 Murrysville,PA 15668 208 Slobodnyak, Thomas J. 127 Shara Drive Member,IBEW, Local 144 West Mifflin, PA 15122 209- Woessner, William 4109 Ben Miller Road Member,1BEW, Local 144 Gibsonia,PA 15044 210 Kronz,Frhk 807 Elkton Street Member,IBEW, Local 144 Pittsburgh, PA 15220 211 Hallam, C. D. 904 Venango Avenue Member,1BEW, Local 144 Pittsburgh, PA 15209 212 Harbison, Ronald H. 639 East 10th Avenue Member.1BEW, Local 144 Tarentum, PA 15084 213 Held, Daniel C. P.O. Box 53 Member,1BEW, Local 144 Bakerstown,PA 15007 214 Newell, James D. 4013 Mintwood Street Member,IBEW Pittsburgh, PA 15224 215 Howard, Norman IL 30 S. Riverforest Drive Member,IBEW Freeport, PA 16229 216 Helwig, Harry C., Jr. 502 Ridge Avenue Member,1BEW, Local 144 Springdale, PA 15144 l A-12

i letter #

{QgckgG Name/ Title Affiliation / Address 217 Dumez, Timothy D. 961 Shellhammer Road Member,IllEW, Local 144 Apollo, PA 15613 218 Pacific, Keith A. 325 4th Street Ext.

Member,IBEW, Local 144 Saltsburg, PA 15681 219 Gutmann, Richard L. 14714carna Way Member,IDEW, Local 144 Pittsburgh, PA 15201 220 Mautino, Eugene J. 605 lecust Drive Member,IDEW, Local 144 Cheswick, PA 15024

- 221 Page, Joseph R. 543 West 8th Avenue Member,IDEW, Local 144 Tarentum, PA 15084 222 Bertol;ni, Joseph D. 171 North Street Member, IBEW, Local 144 Springdale, PA 15144 223 Sizemore, D. R. IBEW, U-1 Business Manager P.O. Box 6537 Richmond, VA 23230 224 Trevors, George A. Nebraska Public Power District Division Manager, Nuclear Support P.O. Box 499 Columbus, NE 68602-0499 225 Peters, Terry L. 6 West Maple Avenue Member, IllEW,Ixcal 1482 Myerstown, PA 17067 226 Snebold, Thomas A. 528 E.10th Avenue Member,IBEW, Local 144 Tarentum, PA 15084 227 Matthews, Robert 227 Erastown Road Member, IDEW Sarver, PA 16055 228 Godfrey, Myrant, Jr. Utility Workers Union of America, Local 246 Vice President 10355 les Alamitos Bodlevard Los Alamitos, CA 90720-2190 229 Turner, James A. Utility Workers Union of America, Local 246 ChiefSteward 10355 los Alamitos Boulevard Los Alamitos, CA 90720-2190 230 Kuhlman, G. C. Sargent & Lundy Engineers Director of Services 55 East Monroe Street Chicago,IL 60603 231 lloltzscher, D. L. Illinois Power Company Acting Manager, Licensing and Safety P.O. Box 678 Clinton Power Station - Clinton,IL 61727 232 Bernard, John A., Ph.D. MIT Research Center Director of Operations 138 Albany Street Nuclear Reactor Laboratory Cambridge, M A 02139 233 Stewart, Robert S. 414 Roemer Columbia, MO 65202 A-13 1

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(Doc ket) Name/ Title Affiliation / Address 234 Warren, Cameron . 36 Park Avenue Member,IBEW,Imcal 1515 Eldridge,IA 52748 235 Wiersema, Robert J. 142 Riverview Drive Member,IBEW, Local 1515 Albany,IL 61230 l 236 Kinman, Brian G. 142618th Avenue ]

Member,IBEW, local 1515 Silvis,IL 61282

]

237 Lamont, Brad 25822190th Avenue Member,IBEW,IAcal is15 Eldridge,IA 52748 l

l 238 Dwyer, Brian E. 830 Wilson Street 1 Member,IBEW,IAcal 1515 Kewanee,IL 61443 239 Heldt, Phillip 1027 lith Avenue Member,1BEW,IAcal 1515 Fulton,IL 61252 240 James, Thomas G. 3430 E. Kimberly Road, #137 Member,IBEW, local 1515 Davenport,IA 52807 241 Koll, Richard F., Jr. 402 BeckerDrive  !

Member,IBEW, Local 144 Pittsburgh, PA 15237 242 Pohms, Gary L 4812180th Street N.

Member, ?EW, local 1515 East Moline, IL 61244 243 Warren, Monica 36 Park Avenue Member,IDEW, local 1515 Eldridge,IA 52748 244 Cannon, Michael J. 210 S.14th Street Member,IDEW,IAcal 1515 Clinton,IA 52732 245 Friedrichs, Jay D. IBEW, local 949 Business Representative 12908 Nicollet Avenue South Burnsville,MN 56337 246 IIolliday, C. A. IBEW, U-4 Business Manager, System Council U-4 432 West Boynton Beach Boulevard Boynton, FL 33435-4027 247 McGee, Dan 6441131 Street Member, IDEW, local 1515 Blue Grass,IA 52726 248 Spainhower, Craig 2156 West 35th Street Member, IBEW, Local 1515 Davenport,IA 52806 249 Olsan, David A. 312 N. lith Street Member, IDEW, Local 1515 Clinton,IA 52732 250 Neight, Bill 600 Valley Drive, Apt. l A Member, IBEW, Local 1515 Morrison,IL 61270 251 Garcia, Bernardo R. Utility '.Vorkers Union of America, Local 246 Busiress Agent 10355 Ims Alamitos Boulevard Los Alamitos, CA 90720-2190 A-14 1

k letter #

(Docked Name/ Title ,

Affiliation / Address 252 14flin, leonard L Carolina Power & Light Company Manager, Nuclear Licensing .Jon 411 Fayetteville Street, P.O. Box 1551 Raleigh, NC 27602 253 Pasvogal, Norma D. 8760 Mineral Member,IBEW, Local 1515 Fenton,IL 61251 254 Smeltzhy, Daniel A. 10621270th Street N.

Member,IBEW, local 1515 Port Byron,IL 61275 255 Hayden, Michael H. Box 322 Member,IBEW,IAcal 1515 Hillsdale,IL 61257 256 Lehmkuhl, David 32136th Avenue N.

Member,IBEW, local 1515 Clinton,IA 52732 257 Rabias, John Utility Workers of American, Local 1-2 Chairman 367 Sprout Brook Road Peekskill,NY 10566 258 Vo.nz, Andmw D. I1449 Sand Road Member,IBEW,lu al 1515 Fenton,IL 61251 259 Hosler, C. L. Penn State Sr. Vice Pres. for Research & 114 Kern Graduate Building Dean of Graduate School University Park, PA 10802 260 Zychowicz, Raymond J. IBEW, Local 245 President 705 Lime City Road Rossford, Oil 43460 261 Alsworth, M. W. Oregon State Department of Energy Manager of Reactor Safety 625 Marion Street N.E.

Nuclear Safety and Energy Facilities Salem, OR 97310 262 Hairston, W. G._111 Georgia Power Company Senior Vice President, Nuclear Operations P.O. Box 4545 Altanta, GA 30302 263 Alexander, Dean T. Oil, Chemical & Atomic Workers Int'l Union Assistant to the President P.O. Box 2812 Denver,CO 80201 264 Miltenberger, Steven E. Public Service Electric and Gas Company Vice President and Chief Nuclear Off:cer P.O. Box 236 Hancocks Bridge, NJ 08038 265 Greeno, Michael E. Calloway Nuclear Power Plant Health Physics Foreman Route 3, Box 2MB Union Electric Company Fulton, MO 65251 266 Eschels, Curtis State of Washington Chairman Mail Stop PY-11 Energy Facility Site Evaluation Council Olympia, WA 98504 A-15

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letter #

(Docked Name Title Affiliation / Address 267 Sherman, Dan IBEW, Local 2150 Business Representative 6227 W.Greenfield Avenue West Allis,WI 53214 268 Feltz, Donald E. Texas A&M University Director Nuclear Science Center Texas Engine.' ing Experiment Station College Station, TX 77843-3575 269 Fogarty, Ed Philadelphia Electric Company Manager, Nuclear Support Division 2301 Market Street, P.O. Box 8699 Philadelphia,PA 8699 270 Hairston, W. G., Ill Alabama Power Company Senior Vice President, Nuclear Operations 600 North 18th Street, P.O. Box 2641 Birmingham, AL 35291-0400 271 Larson, C. E. Northern States Power Company Vice President, Nuclear Generation 414 Nicollet Mall Minneapolis, MN 55401 272 Sieber, J. D. Duquesne Light Company Vice President, Nuclear P.O. Box 4 Shippingport, PA 15077-0004 273 McCarthL Hugh J., Jr. Hugh J. McCarthy & Associates, Ltd.

Attorney at Law 35 East Wacker Drive, Suite 1960 Chicago,IL 60601 274 Kearney, John J. Edison Electric Institute Senior Vice President 1111 19th Street, N.W.

Washington, D.C. 20036-3691 275 Colvin, Joe F. Nuclear Management and Resources Executive Vice President / Council Chief Operating Officer 1776 Eye Street, N.W., Suite 300 Washington, D.C. 20006-2496 276 Doyle, William San Onofre Nucient Generating Station NuclearOperator P.O. Box 128, B-67 San Clemente, CA 92672 277 DiMento, Christopher 1445 Cresthaven Place Oceanside,CA 92056 278 Schnell, Donald F. Union Electric Company 1901 Gratiot F ~ et, P.O. Box 149 St. Louis, MG

• 3166 279 Thomas, George S. Public Service dNew Hampshire Vice President, Nuclear Productions P.O. Box 300 New Hampshire Yankee Division Seabrook,NH 03874 280 Karner, D. B. Arizona Nuclear Power Project Executive Vice President P.O. Box 52034 Phoenix, A7. 85072-2034 l A-16

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' Letter # I (Docket) Name/ Title ' Affiliation / Address 281. - Fay, C. W' .. Wisconsin Electric Power Company Vice President, Nuclear Power 231 W. Michigan, P.O. Box 2046 '  ;

Milwaukee,WI 53201 1 k L282? Sagar, Ken D. .

IBEW, local 204.

l Business Manager 3011 Johnson Avenue N.W.

Cedar Rapids,IA 52405 - j

. Voth, Marcus H. Nat'l Org. of Test, Research, & Training D-283 Chairman - Reactors Pennsylvania State

. University Park, PA 16802 284^ ' Reed, Cordell - Commonwealth Edison Senior Vice President P.O. Box 767 Chicago, IL 60690-0767

'285' Graham, Christopher C. Union Electric 4 Health Physicist 1607 Barkley Drive Columbia, MO 65203 286 . Ordway, Earl C. St. L.ucie Plant -

I&C Supervisor 11 .

83 Las Olas South

, Florida Power and Light . Jensen Beach,FL 34957 l

287' Rankin, Greg 80617th Street Member,IBEW, local 1515 - Port Byron,IL 61275

'288' Catano, John L., Jr.' Utility Workers Union of American, Local 1-2 Shop Steward P.O. Box 215 Buchanan,NY 10511 L-3 f289 Neil, Richard J., Jr. Callaway Plant Operating Supervisor P.O. Box 620

. Union Electric Company Fulton, MO 65251 290 Tunstill, Jack W., P.E. 9132124th Way N Seminole, FL 34642

-291' Bolton, Eugene P. .

Indian Point NPP #3 New York Powe Authority . P. O. Box 215 Buchanan,NY 10511 292~ Vernetson, William G University of Florida, Nuclear Reactor Facility Director of Nuclear Facilities , 202 Nuclear Sciences Center Dept.' of Nuclear Engineering Sciences Gainesville,FL 32611 293- Payne, Charles W. IBEW, local 1064 President-Business Manager P.O. Box 6702 Richmond, VA 23230 L. . 294 Rodriguez, Eddie .

5002nd Avenae Member,IBEW, Local 1515 Rockfalls,IL 61071 295- McNally, Jack Coalition of California Utility Workers President P.O. Box 4790 Walnut Creek, CA 94596

{ll A-17

. i y + <

(Docket) Name/ Title Affiliation / Address 296 Puck, Jim . RR #1, Box 628 Member,IBEW,Imcal 1515 Walcott,IA 52773 297 Youngdahl, Russell C. Long Island Lighting Company President and Chief Operating Officer 175 East Old Country Road Hicksville,NY 11801 298 Berry, Kenneth W.' Consumers Power Director, Nuclear Licensing - 1945 West ParnellRoad Jackson,MI 49201 299 Sabo, A. T. Westinghouse Electric Corporation Director, Environrr, ental & Regulatory Affairs P.O. Box 355 r Pittsburgh, PA 15230-0355 sc ,

-300 Knuth, Donald F. KMC, Inc. l President i (no address given) '!

301 Herzman, Gean C. 1119 Ist Member,IBEW, local 1515 Silvis,IL 61282 302 Barry, J. J. .

IBEW InternationalPresident 1125 Fifteenth Street, N.W.

Washington, D.C. 20005 303 ' Cesare. John G., Jr. System Energy Resources,Inc.

Director, Nuclear Licensing P.O. Box 23070 ,

Jackson, MI 39225-3070 304 Wilson, Gary D.- Niagara Mohawk Power Corporation Senior Attorney. 300 Eric BoulevardWest  !

Syracuse,NY 13202 ,

305 Cavanaugh, William,III Middle South Utilities, Inc.

Senior Vice President P.O. Box 23070 l Jackson, MS 39225-3070 306 J Edwards, Donald W. Yankee Atomic Electric Company i Director, Industry Affairs 580 Main Street Bolton, MA 01740-1398  ;

-307 Norris,Jeffrey A. Equal Employment Advisory Council President - 1015 Fifteenth Street, N.W., Suite 1220 Washington, D.C. 20005 308 11icks, Marshall M. Utility Workers Union of America National Secretary-Treasurer 815 Sixteenth Street Washington, D.C. 20005 l

309 Rader, Robert M. Conner & Wetterhahn, P.C.

l Attomey 1747 Pennsylvania Avenue,N.W.

Washington, D.C. 20006 j

'1 310 Sears, Timothy United Brotherhood of Carpenters & Joiners  !

Staff Attorney of America (no address giveu)

A-18

Letter #

{ Docket) Name/ Title Affiliation / Address 311 Reynolds, Nicholas S. Bishop, Cook, Purcell & Reynolds 1400 L Street, N.W.

Washington, D.C. 20005 3502 311 Moeller,Jame W. Bishop, Cook, Purcell & Reynolds 1400 L Street, N.W.

Washington, D.C. 20005-3502 312 Reynolds, Nicholas S. Nuclear Utility Backfitting and Reform Group Counsel 1400 L Street, N.W., Suite 800 Washington, D.C. 20005-3502 312 Stenger, Daniel F. Nuclear Utility Backfittir g and Reform Group Counsel 1400 L Street, N.W., Suite 800 Washington, D.C. 20005-3502 312 Moeller, James W. Nuclear Utility Backfitting and Reform Group Counsel 1400 L Street, N.W., Suite 800 Washington, D.C. 20005-3502 313 Tucker, llal B. Duke Power Company Vice President, Nuclear Production P.O. Box 33189 Charlotte,NC 28242 314 Gorman, Edward J., III United Brotherhood of Carpenters & Joiners Assistant General Counsci of America (comments of Dr. Ruth Ruttenberg for UBCJA) 101 Constitution Avenue, N.W.

Washington, D.C. 20001 315 Unsigned (no address given) 316 Mroczka, E. J. Northeast Utilities Senior Vice President (no address given) 317 Medford, M. O. Southern California Edison Company Manager, NuclearRegulatory Affairs 2244 Walnut Grove Avenue, P.O. Box 800 Rosemead,CA 91770 318 Burski, R. P. Louisiana Power & Light Manager, Nuclear Safety & Regulatory Affairs 317 Baronne Street, P.O. Box 60340 New Orleans,LA 70160 319 Bensinger, Peter B. Bensinger, DuPont C. Associates, Inc.

President 20 North Wacker Drive Chicago,IL 60606 320 Selman, Murray Consolidated Edison Co. of New York, Inc.

Senior Vice President 4 Irving Place New York, NY 10003 321 Carter, Robert S. United States Department of Commerce Chief, Reactor Radiation Divisior. Gaithersburg,MD 20899 National Institute of Standards e .d Technology A-19

' letter #

fDocket) Name/ Title Affiliation / Address

-322 Endermann, Gary M. San Onofre Nuclear Generation System Nuclear Plant Equipment Operator P.O. Box 812 Valley Center, CA 92082 323 Will, David J, 814 Mitchell Street Green Bay, WI 54304

-324 Weigand, J. Gary Vermont Yankee Nuclear Power Corporation President & Chief Executive Officer RD 5, Box 169. Ferry Road Brattleboro, VT 05301 325 Ellison, Jeffrey, J. . United Plant Guard Workers of America Gregory, Moore, Jeakle & Heinen for 3727 Cadillac Tower Building Detroit, MI 48226 326 Sullivan, J. L., Jr. GPU Nuclear Corporation Director, Licensing & Regulatory Affairs One Upper Pond Road Parsippany, NJ 07054 327 Campbell, T. Gene Arkansas Power & Light Company Vice President, Nuclear P.O. Box 551 Little Rock, AR 72203 328 Markey, EdwardJ. U.S. House of Representatives Member of Congress,7th District, 2133 Raybum House Office Building Massachusetts ' Washington, D.C. 2CDS 329 Firlit, Joseph F. Sacramento Municipal Utility District Chief Executive Officer, Nuclear 6201 S Street, P.O. Box 15830 Sacramento, CA 95852 1830  !

330 Conway, William F. Florida Power & Light Senior Vice President,. Nuclear P.O. Box 14000 1 Juno Beach, FL 33408-0420 331 Tiernan, Joseph A. Baltimore Gas and Electric Vice President, Nuclear Energy Charles Center, P.O. Box 1475 Baltimore,MD 21203 332 Briody, Eugene T. Utility Workers Union of America, Local 1-2 President 136 Park Avenue South, Sune 401 New York, NY 10016-8846 333 McGowan, Neil C. IBEW, U-10 Business Manager, System Council U-10 986 Greentree Road Pittsburgh, PA 15220 334 Stanley, Mary Anne 226 Scott Avenue Mount Joy, PA 17522 335 Wilgus, W. S. Florida Power Corporation Vice President, Nuclear Operations 3201 Thirty-Fourth Street S., PO Box 14042 St. Petersburg, FL 33733 ,

1 336 Stanley, William S. 226 Scott Avenue Mount Joy, PA 17522 A-20

letter #

(Docket) Name/ Title Affiliation / Address 337 ' Rickenbacker, Barney ' Carolina Power & Light Company Director, Employee Assistance Program One Exchange Plaza, Suite 706 Raleigh,NC 27601 338. Dominguez, Daniel San Onofre Nuclear Generating Station

' Reactor Operator ' P.O. Box 128 San Clemente, CA 92677 339 Kaplan, Al .

Cleveland Electric Illuminating Company

. Vice President, Nuclear Group P.O. Box 97 Perry,OH 44081 340 Steinhardt, C. R. Wisconsin Public Service Corporation  ;

Manager, Nuclear Power 600 North Adams, P.O. Box 19002  !

Green Bay, WI 54307-9002 341 Esposito, Geraldine Society for Clinical Social Work Esecutive Director 701 Howe Avenue, Suite H-59  ;

Sacramento,CA 95825 342 Probst, James R. 2047 N. Towne Ct. NE, Apt. #2 CedarRapids,IA 52402 343 Deddens, J. C. Gulf States Utilities Company Senior Vice President, River Bend (unn:adable)

Nuclear Group

'344 Patterson, John T. Callaway Nuclear Plant Ehift Supervisor, Crew 5 P.O. Box 620 Fulton, MO 65251

-]

345 Whitehead. O. G. IBEW LocalUnion 1323 Vice Presi sent 509 Cumberland Avenue Athens,TN 37303 346 Tucker, Hal B.. Duke Power Company Vice President, Nuclear Production P.O. Box 33189

- (Duplicate of Letter 313) Charlotte,NC 28249 347- Schrouder, Wilfred J., Jr. Rochester Gas & Electric Corporation

, Vice President, Employee Relations & 89 East Avenue Public Affairs Rochester, NY 14649-0001 348 Bailey, John A. Wolf Creek Nuclear Operating Corporation Vice President, Engineering & Technical P.O. Box 411 Services Burlington, KS 66839

.349 Williams, R. O., Jr. Public Service Company of Colorado Senior Vice President, Nuclear Operations P.O. Box 840 Denver, CO 80201-0840 l 350 Lewis, Marvin I. CANE 7801 Roosevelt Boules.sd, Suite 62 Philadelphia, PA 19152 A-21 i.

L.a l J

' letter'#

, fDocket) Name/ Title Affiliation / Address E . . .

i= 351 Kivier, Joseph E. IBEW Local 563 President . 75 Pike Street -

Middletown,PA 17057--

352 Munyan, Robert A.' IBEW LocalUnion 12F,9

- President 1607 Marigold Avenue Manasquan,NJ 08736

353= Bradham, O. S. South Carolina Electric & Gas Company Vice President, Nuclear Operations P.O. Box 88 Jenkinsville, SC 29065 354 Cockfield, David W.- ' Portland GeneralElectric Company Vice President, Nuclear . 121 S.W. Salmon Street Portland, OR 97204 - .

355- Counsil, W. G. .

TU Electric Executive Vice President 400 North Olive Street, LB 81' Dallas,TX 75201 355 Woodlan, D. R. TU Electric i

~ Docket Licensing Manager 400 North Olive Street, LB 81 Dallas,TX 75201.

356 . Orser, William S. Detroit Edison, Fermi 2 Vice President, Nuclear Operations 6400 North Dixie Highway .I Newport,MI 48166 i

357 Bird, R. G. Boston Edison i Senior Vice President, Nuclear . Rocky Hill Road l Pilgrim Nuclear Power Station Plymouth, MA 02360 358 Shelton, Donald C.' The Toledo Edison Company ,

Vice President. Nuclear EdisonPlaza,300 Madison Avenue -

Toledo,OH 43652 )

1 359 Brons, John C. New York Power Authority j Executive Vice President, Nuclear Generation (no address given) i 360 St. John, Kevin E 66 Jefferson Street Lawrence,MA 01843 361 Speakman, Richard J. 1002 Rue Grande Vue Member,IBEW, Local 142 Pittsburgh, PA 15220 362 Kumyfmiller, Charles 103 DogwoodIme Member,IBEW, Local 142 Pittsburgh, PA 15237 363 McDonough, Stephen P. 400 Emahlea Street Member,IBEW, Local 142 Pittsburgh, PA 15207 364 Minsinger, Walter J. .

1108 Queensburg Sreet Member,IBEW, Local 142 Pittsburgh, PA 15205 365 Nowak, Joseph M. 804 Herschel Street Member,IBEW, Local 142 Pittsburgh, PA 15220 A-22 i

fX , _ -]

[! l

i l

o 9 Mter O IDpgkat} ' Name/ Title Affiliation / Address '  !

1 366: Cartwrigh't, W.' R. Virginia Electric and Power Company -l Vice President, Nuclear . . 5000 Dominion Boulevard I

Innsbrook TechnicalCemer Glen Allen,VA 23060

' 367~ Morris, K. J. Omaha Public Power District ,

. Division Manager, Nuclear Operations 1623 Hamey l Omaha, NE 68102-2247 j q

368 Zaccaria, A. BechtelPower Corporation Senior Vice President 15740 Shady Grove Road -

Gaithersburg, MD- 20877-1454 j 369 Gorman, Edward J.,III' United Brotherhood of Carpenters & Joiners

' Assistant General Counsel of America (2ndltr with correction page) 101 Constitution Avenue, N.W.

Washington, D.C. 20001 -

370 ' Gorman,EdwardJ.,Ill United Blutherhood of Carpenters & Joiners ,

Assistant GeneralCounsel of America - l (3rdltr with additionalconunents) 101 Constitution Avenue, N.W. l Washington, D.C. 20001  !

.371 Whittier, G. D. Maine Yankee Manager, Nuclear Engineering & Licensing - Edison Drive l Augusta, ME 04330 372 ' Sorensen, G. C. Washington Public Power Supply System

- Manager, Regulatory Programs PO Box 968,3000 George Washington Way Richland,WA 99352

-1373- . Rothert, William C. Iowa Electric Light and Power Company Manager, Nuclear Division P.O. Box 351 CedarRapids,IA 52406 374 Keiser, H.W Pennsylvania Power & Light Company Senior Vice President Two North Ninth Street Allentown, PA 18101 375- Gridley, R.L. Tennessee Valley Authority Manager, Nuclear Licensing / Regulatory SN 157B Lookout Place -

Affairs Chattanooga, TN 37401 376 Alexich, M. P. Indiana Michigan Power Company l- Vice President P.O. Box 16631 i:' Columb'is, Oil 43216 377? Boley, Kenneth Public Citizen u Nuclear Safety, Analyst 215 Pennsylvania Ave.SE L . Critical Mass Energy Project Washington, D.C. 20003 378 Shiffer, James D. Pacific Gas and Electric Company Vice President 77 Beale Street Nuclear Power Generation San Francisco, CA 94106 A-23

p-i

)

i l

APPENDIX B 1

1 Alphabetical List for Public Comment Letters i

l

($

l 1

/

1 APPENDIX B Alphabetical List for Public Comment Letters I

'1 ,

I j f

letter #

Name/ Organization (Docket) Section(s) Where Comment (s) A ddressed

_ f i

- Advanced Nuclear Fuels Corporation 58 3.1.8;3.4.3;4.1.2;4.4.9;10.1.7;10.2.5;10.3.15; ,

11.3.1; 11.3.2; 11.5.1; 13.2.9 1 Alabama Power Company -270 3.5.24 l

' Alexander, Dean T.

See Oil, Chemical & Atomic j

Workers Int'l Union Alexich, M.P.

See Indiana Michigan Power

' Company Alisesky, Chris - 26 7.1.1; 7.3.1 Alsworth, M.W.

See Oregon State Department -

r.' t.u ys

. Atders, Barry ' 111- 7.1.1; 7.3.1

~ Anua.i.:. James B. 144 7.1.1;7.3.1 A'ntoszewski, Robert T. 180 7.1.1;7.3.1 Arizona Nuclear PowerProject 280 3.5.24 Arkansas Power & Light Company - 327 3.5.24; 6.1.2; 10.3.3; 12.2.10; 18.3.1

Bailey, John A.

See Wolf Creek Nuclear Operating Corporation Baker, Richard J. 85 7.1.1;7.3.1 Baker, Richard W. 207 7.1.1;7.3.1

- Baltimore Gas and Electric 331 3.3.3; 3.3.13; 3.4.1; 3.4.7; 3.5.24; 4.4.3; 5.1.1; 6.1.1; 6.1.2; 6.1.9; 7.4.1; 11.3.2; 11.4.1; 12.1.3; 12.4.7; 12.7.3; 13.1.2; 14.2.2; 14.2.3; 15.1.1; 15.2.1; 19.5.2

~ Banfield. Larry L. 49 7.1.1; 7.3.1 Barry, JJ.-

SeelBEW B-1

-t<.

w r. .. .~

' ' . .' fU' <

3> . .

1 4.> s , i.etter # -

Name/Oronniratinn - (Docket) Section(s) Where Comment (s) Addressed

,, L Batjer, John D.,' M.D. .

• ,See Laboratory of Pathology

(.[ ' Bayne, Karen ,

154 .7.1.1;7.3.1 7Beatty, Marvin P. 206 7.1.1; 7.3.1

. Bechtel Power Corporation 368 3.5.23; 13.1.3; 14.2.2; 18.7.1

,," Becze, David S. 91 7.1.1;7.3.1 L Bedell, Charles H. '101. 7.1.1; 7.3.1 Behr, Lawrence W. 133 7.1.1;7.3.1.

Bensinger, DuPont & Associates, 319 3.1.1; 5.1.3; 6.1.1; 6.2.22; 7.2.2; 7.4.1; 10.1.1; 10.3.2;-

'inc. 10.4.6; 16.1.1;.16.1.4 Bensinger, Peter B. .

See Bensinger, DuPont & '

Associates,Inc.

Bemard, John Ae Ph.D.

See MITResearch Center

-: Berry, Kenneth'W.

' : See Consumers Power Bertolini, Joseph D. 222 7.1.1; 7.3.1 Bettine, Charles 71. 7.1.1;7.3.1 Bird, R.G.

See Boston Edison -

s Bishop, Cook, Purcell & Reynolds 311 3.5.23; 4.3.2; 18.1.1; 18.2.1; 18.3.1; 18.5.1' Bohms, Gary L.' .242 7.1.1;9.1.1 Boley, Kenneth See Public Citizen

. Bolton,' Eugene P. 291 3.1.2; 7.1.1; 7.3.16; 19.1.4 m , Boston Edison 357 3.5.24 l

Boyda,Ted 168 7.1.1; 7.3.1

, , .. Bradham, O.S.

1- See South Carolina E'ectric &

Gas Company .

I Brinker, Jim .

See1BEW, Local 1124 B-2 u

_ _ - _ _ _-_ D

L 1.4tter #

..Name/Orcaniration (Docket) Section(s) Where Comment (s) Addressed Briody, Eugene T. '  ;

See Utility Workers Union of  !

America, Local 1-2 i

Brons, John C.

See New York Power Authority - l Burke, R. E. 122 7.1.1;7.3.1  ;

Burkhart, John R. .

I SeeIBEW, Local 803 Burkhart, Nelson E. 155 7.1.1 Burkhower, Joe - 196 7.1.1; 7.3.1  !

Burt,ki, R.F.

See Louisiana Power & Light i Buszinski, Richard A. 109 7.1.1;7.3.1  ;

Buzinski, Walt 65 7.1.1;7.3.1 Cadvallada, George 113 7.1.1;7.3.1 Callen, Walter - 27 7.1.1;7.3.1 Campbell, T. Gene  !

See Arkansas Power & Light 1 Company ,

i Cane, Donald L 108 7.1.1;7.3.1 l

Cannon, Michael J. 244 7.1.1;9.1.1 Carolina Power & Light Company j (loflin Leonard 1.) 252 3.3.1; 3.3.8; 3.4.12; 4.3.3; 4.3.5; 4.4.3; 4.5.1; 5.1.1; ,

6.1.9; 6.2.4; 6.3.2; 7.2.1; 7.4.1; 7.4.2; 7.4.3; 7.4.9; 7.5.3; 7.5.10; 8.2.13; 8.3.3; 10.1.1; 10.2.7; 10.3.1; 10.4.3; 10.5.2; 10.6.2; 10.6.5; 11.3.5; 11.5.1; 12.2.1;  !

12.2.19; 13.1.2; 1*.2.2; 14.2.5; 15.3.1; 16.1.1; 16.2.1; 16.4.2; 17.3.1; 17.5.3; 18.4.1

- (Rickenbacker, Barney) 337 3.1.1; 6.1.2; 12.4.4 Carter, C.E., Jr. .

See 1BEW,laal 51 1

' Carter, Robert S.

See United States Department of Commene  ;

Cartwright, W.R.

See Virginia Electric and Power Company B-3

I2tter #

Name/ Organization Qggigt) SectionM Where CommentM Addressed Catano, John L., Jr.

See Utility Workers Union of '

America, Local 1-2 Catlas, Steve J., Jr. 126 7.1.1; 7.3.1 Cavanaugh, William,111

- See Middle South Utilities, Inc.

Cavington, Ralph W. 50 7.1.1; 7.3.1 Cesare, Job:. G., .ir.

See System Energy Resources,Inc.

Christensen, Victor O. 3 3.1.2; 3.3.2; 4.6.1; 6.2.19; 7.2.2; 7.4.11; 9.1.3; 9.1.4; 9.2.3; 9.2.4; 14.1.1; 14.1.2; 14.1.6; 16.3.4; 19.5.3 :l Christian, Robert M. '28 7.1.1; 7.3.1 (

Ciancio, Robert S. 158 7.1.1; 7.3.1 C!cveland Electric Illuminating 339 3.2.2; 3.5.12; 3.5.23; 4.3.1; 4.3.3; 4.5.1; 4.7.1; 4.7.4; I Company 5.1.1; 5.1.2; 6.1.1; 6.1.2; 6.2.22; 7.2.2; 7.2.5; 7.4.1; 7.4.2; 7.4.3; 9.1.9; 10.1.1; 10.3.2; 11.3.2; 11.5.1; 11.6.2; 12.2.21; 12.4.4; 13.1.2; 13.2.1; 14.2.1; 14.2.2; 14.2.3; 15.4.1; 15.4.3; 16.1.1; 16.5.7; 19.5.2 Cline, Nancy L. 37 7.1.1;7.3.1 Clowes, Jack A. 160 7.1.1 Coalition of California Utility 295 3.3.2; 7.3.6; 9.1.1; 9.3.3; 9.3.4; 11.2.1; 13.1.1; Workers 18.1.1; 18.5.1 Cockfield, David W.

See Portland GeneralElectric Company Colaizz, Peter C. 39 7.1.1; 7.3.1 Colvin, Joe F.

See NuclearManagement and Resources Council Commonwealth Edison 284 3.5.24; 7.2.3; 10.1.1; 10.3.3; 10.3.9; 12.1.1; 12.2.1; 16.5.3; 17.5.3; 17.5.5; 13../.1 3 Conner & Wetterhahn, P.C. 309 4.1.2;4.4.1; 4.5.1; 5.1.4;7.5.1; 8.3.2; 10.2.7; 10.3.1; 11.3.2; 11.4.3; 11.6.1; 12.1.1; 14.1.5; 14.1.16; 14.2.1; 14.2.2; 14.3.2; 14.5.4; 15.1.2; 15.2.1; 15.2.3; 15.2.4; 15.2.7; 16.1.1; 16.1.2; 16.2.6; 16.2.12; 17.2.1; 18.3.1; 18.4.1; 18.4 2; 18,6.1

,1 Consolidated Edison Co.of 320 3.5.24 l New York, Inc.

B4

f*

9 sp

h. % IMAGE EVALUATION d%,

/ 4 k/f7 \f TEST TARGET (MT-3) /,4 //4 gy,,y$f//M >

+ s,y<-

1.0 Ea E E

em2 N2 I l,l lllb l.8 1.25 _

f.4 1.6 4 - 150mm  ?

4 6" >

e p j;V y;7 , _. -

/;;\/h 4

st %:r 4%

O I h'*$*'

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1. 5;A

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. 7-newc.

.^

j .f ;

"' ' s (l ip ,

a I

.. 12tter # , .

Nama/Oronnientian (Docket) Section(s) Where Comment (s) Addressed  !

i Consumers Power i 298 .3.1.2; 3.3.1; 3.5.19; 3.5.23; 4.1.2; 4.1.3, 4.3.1; 4.4.3;  !

4.5.1; 4.6.1; 4.7.1; 5.1.1; 6.1.3; 6.3.12; 7.3.17; 7.5.8; -l 7.5.13; 8.2.8; 8.4.5; 10.2.9; 10.3.6; 10.5.7; 10.5.12;  ;

P-10.6.2; 10.8.3; 11.3.2; 11.5.1; 12.1.1; 12.2.1; 12.2.13; l 12.2.16; 12.7.1; 12.7.3; 12.7.6; 13.1 2; 13.2.1; 14.1.1;  !

14.1.3; 14.1.5; 14.2.1; 15.2.5; 15.4.2, 16.1.1; 17.5.4 i

Conway, William F.- j q See Florida Power & Light l

F"'

h

~ Counsit, W.G. I g- " See TU Electric l

,  : Cox, Ray A., Jr. 25 7.1.1; 7.3.1

,/  : Cridge, Alan W.- ~ 170". 7.1.1 i l.Culley', Harry. 54 7.1.1; 7.3.1 y Davis, Dennis R. 202 7.1.1; 7.3.1

' Dawson, Jerry 148 7.1.1; 7.3.1

' Deddens, J.C.

.See Gulf States Utilities Company -

- Deitt, George D. 117 7.1.1; 7.3.1

g. Delo, Randy 176 7.1.1;7.3.1 g,v ,

L Detroit Edison, Fermi 2 356 3.5.23; 4.3.1; 4.4.3; 6.1.2; 6.2.5; 6.2.23; 6.3.3; 7.3.18; h 7.4.1; 7.5.6; 8.1.1; 10.1.1; 10.4.5; 10.5.2: 10.5.4; P 10.7.1; 11.3.2; 11.4.3; 11.5.2; 11.6.3; 12.2.1; 12.5.1; 13.1.1; 13.4.1; 14.2.3; 16.1.1; 17.4.1; 19.1.1; 19.1.6 Dietz, William C. 33 7.1.1; 7.3.1

' DiMento, Christopher 277 7.1.1; 9.1.1 Domingycz, Daniel 338 3.2.1; 7.3.1; 7.4.20; 9.1.2; 14.2.3 Dotson, J. E. 69 7.1.1; 7.3.1 Dougherty, Arthur P. 136 7.1.1; 7.3.1 Douglas, Mary Lynn 61 7.1.1 L Doyle, William 276 3.1.2; 7.1.1; 18.1.1

. Drummond, James N., Jr. 199 7.1.1;7.3.1 Duke Power Comp:my 313 3.1.9; 3.5.23; 4.4.3; 7.4.1; 10.3.9; 18.1.1 Dumez, Timothy D. 217 7.1.1; 7.3.1 e

Ii ,

B-5

y

• ' l n ,

g N ama/Orenni'=tinn (Docket) Section(s)Where Comment (s) Addressed Duquesne Light Company 272 3.1.1; 3.1.8; 3.3.11 3.3.7; 3.3.13; 3.5.23; 4.3.1; 4.4.3; 6.1.1; 6.1.2; 6.2.2; 6.2.22; 6.3.4; 7.2.2;7.4.1; 7.4.2; x 7.4.3; 8.1.1; 9.1.5; 9.1.8; 10.3.3; 11.3.2; 11.5.1; 12.1.1; 12.2.1; 12.2.12; 12.2.13; 12.2.22; 12.6.5; 14.1.6; 14.2.2; 16.4.2; 18.7.1

. Dwyer, Brian E. 238 7.1.1; 9.1.1 Ecology / Alert 23 4.3.3; 6.2.24; 7.2.6; 7.4.13; 7.5.7; 14.5.2; 18.1.4; 19.5.2 Edison ElectricInstitute 274 3.4.1 3.5.23; 7.4.1; 12.1.1 Edwards, Donald W.

See Yankee Atomic Electric

. Company Ellis, Judy ' 195 7.1.1; 7.3.1 Ellison, Jeffrey J.

See United Plant Guard Workers ofAmerica Endermann, Gary M. 322 3.3.9; 18.1.1 Episcopo, Vaughn 121 7.1.1;7.3.1 EqualEmployment Advisory Council 307 3.1.5; 3.4.1; 3.4.10; 7.2.2; 7.3.7; 10.1.1; 10.1.4; 12.6.2; 13.1.1; 18.3.1; 18.3.2 Erwin, John D. 76 7.1.1; 7.3.1

- Eschels, Curtis See State of Washington i

Esposito, Geraldine See Society for Clinical Social Work Ewig EarlW. 87 7.1.1; 7.3.1 Faulk, Susan 203 7.1.1;7.3.1 Fay, C.W.

See Wisconsin Electric Power Company Fedela, A. R. 102 7.1.1; 7.3.1 Feltz, Donald E.

See Texas A&M University Finlit, Joseph F.

See Sacramento Municipal Utility District B-6

I L

l l

l Letter #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Florida Power & Light 330 3.2.2; 31.12; 3.3.13; 3.4.12; 3.5.6; 3.5.11; 3.5.13; 3.5.17; 3.5.18; 3.5.20; 3.5.24: 4.1.2; 4.3.3; 4.4.1; 4.4.2; 4.4.3; 4.4.7; 4.5.1; .i.7.1; 5.1.1; 5.1.2; 6.2.18; 6.3.9; 7.2.2; 7.4.2; 7.4.3; 7.4.15; 8.2.2; 8.2.6; 8.4.2; 9.1.11; 10.14; 10.3.1; 10.3.2; 10.3.8; 10.5.2; 10.8.7; 11.3.2; 11.3.5; 11 A.4,11.5.1; 12.1.2; 12.2.1; 12.2.13; 12.2.20; 12.6.1; 12.6.8; 12.7.9; 12.7.11; 12.7.16; 13.1.2; 13.2.7; 13.4.1; 14.1.5; 14.2.1; 14.2.2; 14.2.3; 14.2.5; 14.2.9; 14.3.1; 15.2.1; 15.2.9; 15.2.12; 15.4.6; 15.4.8; 16.1.1; 16.1.2: 16.2.6, 16.2.8; 16.4.1; 16.4.2; 16.5.3: 17.4.1; 17.5.2; 18.8.5 Florida Power Corporation 335 3.5.24; 4.5.1; 4.6.2; 5.1.1; 6.1.9; 7.4.1; 11.3.5; 11.5.1; 14.1.15; 15.2.5; 15.2.11 Fogarty, Ed See Philadelphia Electric Company Friedrichs, Jay D.

See IBEW,ima1949 Fruisinko, Albert 147 7.1.1; 7.3.1 Garbart, James 124 7.1.1; 7.3.1 Garcia, Bernardo R.

See Utility Workers Union of America, Local 246 Georgia Power Company 262 3.5.24 Gerrity, John See IBEW, U-2 Gibson, John R. 186 7.1.1; 7.3.1 Glass, William L. 46 7.1.1;7.3.1 Godfrey, Myrant, Jr.

See Utility Workers Union of Americc, Local 246

)

Goldberg, J.H.

See The Light Company  ;

Gorman, Edward J., III See United Brotherhood of Ca.penters

& Joiners of America l

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[ IU ,.

. . . letter #

Name/Orenniratinn (Dacket) Sectinn(s) Where Comment (s) Addressed

~

..GPU Nuclear Corporation 326 - 3.2.2 3.3.1; 3.3.3; 3.3.13; 3.3.1'5; 3.4.1; 3.4.2; 3.5.18; 3.5.23;- 4.1.2; 4.3.1; 4.4.3; 4.4.7; 4.5.1; 4.6.1; 4.6.2; 4.7.1; 3.1.1; 6.1.1; 6.1.2; 6.1.7; 6.1.9, 6.2.1; 6.2.8; 6.2.11; 7.2.1; 7.4.1; 7.4.2; 7.4.3;.7.4.10; 8.2.8; 8.2.11; 8.4.5; 9.1.8; 9.2.2; 10.1.1; 10.2.6; 10.3.1; 10.3.2;

, -10.3.3; 10.4.2; 10.5.5; 10.5.11; 10.6.1; 10.8.7; 11.3.2; 11.4.4; 11.5.1; 12.1.1; 12.1.3; 12.2.1; 12.2.13; 12.2.14; 12.2.16; 12.7.1; 17.7.3; 13.1.2; 14.1.1; 14.1.3; 14.1.5; 14.2.1; 14.2.2; 14.2.3; 14.4.1; 15.1.1;L 3 '

15.1.2; 15.2.1; 15.2.5; 15.3.1; 15.4.1; 15.4.2; 16.1.1;-

16.1.2; 17.4.1; 17.5.4; 19.1.1; 19.1.3; 19.1.4; 19.1.6; 19.1.9 Graham, Christopher C. '285 3.3.2; 4.3.3; 6.2.9; 6.2.14; 6.2.15; 7.3.1; 7,4.1; 9.3.2; 12.1.1; 15.1.1; 18.4.1; 19.1.4 Greeno, Michael E. 265 3.1.2; 6.3.10; 7.1.1; 7.3.1; 7.3.11; 9.3.5; 19.1.4 Grendy, Jan T. 151 7.1.1 Gridley, R.L.

. See Tennessee Valley Authority Guerrini, Larry D. . 107 7.1.1;7.3.1-Guidos, Andmw. 67 7.1.1; 7.3.1 Gulf States Utilities Company 343 3.2.6; 3.3.3; 3.3.13; 3,5.18; 3.5.23; 3.5.25; 4.1.2 4.4.3; 4.4.7; 4.5.1; 4.6.1; 5.1.1; 6.2.11; 6.3.9; 7.4.1; .

7.5.3; 7.5.13; 8.2.8; 8.2.11; 10.1.1; 10.3.1; 10.3.2; 10.3.3; 10.4.2; 10.5.11; 11.3.2: 11.3.5; 11.4.4; 11.5.1; 12.1.1; 12.2.1; 12.2.13; 12.7.1; 12.7.3; 12.7.6; 13.1.2; 13.2.2; 14.1.5; 14.2.1; 14.2.2; 14.2.3; 14.4.1; 15.2.1; 15.2.5; 15.3.1; 16.1.1; 16.1.2; 16.3.4; 17.4.1; 17.5.4 Gutmann, Richard L. 219 7.1.1; 7.3.1 Hairston, W. G., III See AlabamaPowerCompany

' and Georgia Power Company Hallam, C. D. 211 7.1.1; 7.3.1 Hamilton, Horace E.

See Harris MedicalLaboratory Harbison, Ronald H. 212 7.1.1;7.3.1 Harmen, Ronald 89 7.11;7.3.1 Harrington, M. D. 59 3.2.7; 7.1.1; 7.3.2; 10.8.5; 10.8.6; 18.8.3; 19.1.4; 19.3.1 Harris MedicalLaboratory 8 6.1.2; 6.2.11; 8.4.1; 10.3.2; 10.4.1; 10.5.1 B-8

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i 1.etter #

Name/ Organization Section(s) Where Comment (s) Addressed Qocken .

(

Harris, Howard E. 129 7.1.1 <

l l l Hartle, Clifford B. 183 7.1.1; 7.3.1 1

Hayden, Michael H. 255 7.1.1;9.1.1 Held, Daniel C. 213 7.1.1; 7.3.1 Heldt, Phillip 239 7.1.1;9.1.1 Helwig, Harry C., Jr. 216 7.1.1; 7.3.1 Herrie, William 192 7.1.1; 7.3.1 Herzman, Gean C.

See IBEW, Local 1515 Hessom, Randy D. 132 7.1.1 Hicks, Marshall M.

See Utility Workers Union of America Hilliard, Daniel L. 152 7.1.1; 7.3.1 Holliday, C.A.

See IBEW, U-4 Holtzscher, D.L.

See Illinois Power Company Hoover, Joseph R. 42 3.3.20; 6.3.1; 6.3.4; 7.1.1; 7.3.3 Hoover, William J.

See IDEW, local 142 Hosler, C.L See Pennsylvania State University Howard, Norman H. 215 7.1.1 Hugh J. McCarthy & Associates, Ltd. 273 3.3.2; 4.4.8; 7.1.4; 7.3.1; 7.3.14; 7.4.6; 8.2.14; 10.1.7; 10.3.1; 10.4.1; 11.2.1; 12.1.6; 12.2.6; 12.6.1; 12.7.5; 13.1.1; 13.2.4; 14.1.2; 14.1.3; 14.1.4; 14.2.1; 14.5.1; 18.1.1 Humbert, David L. 79 7.1.1; 7.3.1 IBEW 302 3.1.3; 3.2.1; 3.2.4; 3.3.20; 4.4.3; 4.4.6; 6.3.4; 7.1.5; 7.3.1; 7.3.14; 7.5.11; 9.3.5; 13.1.3; 14.1.6; 14.1.14; 14.2.1; 14.5.1; 18.5.1 IDEW, Local 30 10 7.1.1; 7.3.1 IBEW,1.oca151 6 4.3.1; 4.3.5; 6.2.19; 7.2.4; 7.4.18; 11.2.1; 12.2.18; 12.4.2; 13.1.1 B-9

i lotter # i Name/ Organization (Docket) Section(s)Where Comment (si Addressed IBEW, local 142 45 7.1.1; 7.3.1 57 7.1.1; 7.3.1 IBEW, local 144 21 7.1.1; 7.3.1 IBEW, local 147 13 7.1.1;7.3.1 IBEW, local 204 282 3.1.9; 6.3.1; 7.3.1; 9.1.1 )

IBEW, Local 245 (Tscherne, Larry J.) 32 3.1.7; 7.1.1; 7.3.1; 10.3.1; 10.3.7; 11.2.1; 12.4.6; 13.1.1; 14.1.6 (Zychowicz, Raymond J.) 260 6.3.4; 6.3.5; 7.1.1; 7.3.1; 10.3.1; 10.3.7; 13.1.1; 19.3.1 )

IBEW, local 272 14 7.1.1;7.3.1 IBEW, local 563 351 7.1.1 IBEW, local 803 15 7.1.1; 7.3.1 IBEW, Loca1949 245 7.3.9; 14.5.1 IBEW,Iacal 1064 293 7.3.5; 9.3.5; 18.1.1; 18.5.1 IBEW, local 1124 17 7.1.1; 7.3.1 IBEW,1.ocal 1289 352 7.1.3; 7.3.1; 10.3.1; 10.3.7; 10.7.1; 13.3.1; 18.1.1 IDEW, local 1323 345 7.3.1; 14.5.1 1BEW, Local 1515 301 7.1.1;7.3.1 IBEW, local 2150 267 3.4.9; 4.4.3; 7.4.1; 8.1.2; 10.1.2; 10.4.1; 11.2.2; 11.3.1; 12.2.18; 12.7.5; 14.1.2; 14.5.1; 16.2.11; 16.3.4; 18.5.1 IBEW, Local 2279 11 7.1.1; 7.3.1 IBEW, U-1 223 3.2.1; 3.5.7; 7.3.3: 7.4.1; 10.3. ; 10.5.7; 14.5.1; 18.5.1 IBEW, U-2 2 3.2.5; 3.4.5; 7.1.1; 7.3.15; 11.2.1; 12.2.7; 12.5.3:

13.1.1; 14.1.13 IBEW, U-4 246 6.3.4; 7.1.1; 7.3.1; 7.4.1; 8.3.3; 12.2.18; 12.6.1; I 13.4.10; 14.5.1 IBEW, U-9 18 7.1.1; 7.3.1 IBEW, U-10 333 7.1.1; 18.5.1 Illinois Power Company 231 6.1.1; 6.1.2; 6.2.22; 10.3.2 B-10

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l 12tter #

Name/ Organization (Docket) , Section(s) Where Comment (s) Addressed Indiana Michigan Power Company 376 3.1.1; 3.2.2; 3.3.1; 3.3.13; 3.3.15; 3.3.17; 3.5.25; 4.2.1; 4.4.3; 4.4.7; 4.5.1; 4.7.1; 5.1.1; 6.1.3; 6.1.7; 6.1.8; 6.2.1; 6.2.8; 6.3.9; 6.4.1; 7.2.1; 7.4.1; 7.4.3; J 7.4.10; 7.5.3: 7.5.13; 8.2.1; 8.2.11; 9.1.7; 10.1.1; 10.2.6; 10.3.2; 10.3.3: 10.6.1; 11.3.2: 11.3.5; 11.4.4; 11.5.1; 11.6.2; 12.2.3; 12.2.4; 12.2.21; 13.2.1; 14.1.3; ,

14.1.5; 14.1.12; 14.2.2; 14.2.3; 14.2.10; 15.2.1;  !

15.3.1; 15.4.1; 16.1.1; 16.1.2; 16.4.2; 16.5.2; 18.1.5 lovino, Joseph A., Jr. 197 7.1.1; 7.3.1 lowa Electric Light and Power 373 4.3.4; 4.5.1; 5.1.1; 11.3.2; 12.7.10; 15.3.1; 17.3.*

Company 17.4.1; 17.5.4 1smmill, Michael 175 7.1.1;7.3.1 l

James, Thomas G. 240 7.1.1; 9.1.1 Jericho, David A. 47 7.1.1; 7.3.1 Johnson, A.G.

. See Oregon State University Johnston,11arry See 1BEW, Local 147 Jones, Theodore E. 72 7.1.1; 7.3.1 JuBeck,Theordore J. 86 7.1.1; 7.3.1 Kaplan, Al See Cleveland Electric Illuminating Company Karner, D. B.

See Arizona Nuclear Power Project Katis, Mark A. 157 7.1.1; 7.3.1 Kay, Janice M. 48 7.1.1; 7.3.1 Kean, K. 36 7.1.1;7.3.1 Kearney, John J.

See Edison Electric Institute Keiser,11.W.

See Pennsylvania Power & Light Company Kelly, Robert G., Jr.

See Philadelphia Electric Company Kennedy, John D. 112 7.1.1; 7.3.1 11- 1 1

14tter #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Killosky, Diane 90 7.1.1;7.3.1 Kinman, Brian G. 236 7.1.1;9.1.1 Kirk, James R. 173 7.1.1;7.3.1 Kirmeyer, Jeffrey M. 92 7.1.1; 7.3.1 Kirsopp, John A. 134 7.1.1; 7.3.1 j 1

Kivier, Joseph E.

See IBEW,1 mal 563 KMC, Inc. 300 3.3.2; 3.5.5; 3.5.9; 3.5.10; 3.5.16; 3.5.21; 4.1.3; 4.4.3; 4.5.1; 6.1.2; 6.1.5; 6.1.10; 6.2.17; 6.3.8; 6.4.1; 7.4.9; 7.5.1; 10.1.6; 10.2.7; 11.1.1; 11.2.3; 11.3.2; 11.5.1; 11.6.1; 12.1.4; 12.7.3; 13.4.1; 13.4.2; 13.4.6; 14.1.5; 15.2.6; 16.1.1; 16.2.10; 16.2.12; 16.5.1 Knuth, Donald F.

See KMC, Inc.

Koll, Richard F., Jr. 241 7.1.1; 7.3.1 Komer, Eric J. 172 7.1.1;7.3.1 Kozinko, Rick J. 131 7.1.1;7.3.1 Kral, Raymond C. 62 7.1.1; 7.3.1 Kraynik, P. 187 7.1.1;7.3.1 Kronz, Frank 210 7.1.1; 7.3.1 Kuhlman, G.C.

See Sargent & Lundy Engineers Kulogy, Paul F. 34 7.1.1; 7.3.1 Kumyfmiller, Charles 362 7.1.1;7.3.1 Laboratory of Pathology 7 10.4.1; 10.5.1 Lamont, Brad 237 7.1.1;9.'1.1 Landis, David A. 193 7.1.1;7.3.1 Landis, Roben 146 7.1.1;7.3.1 Larson, C.E.

See Northern States Power Company Larson, Francis J. 98 7.1.1; 7.3.1 Laur, Rauel P. 30 7.1.1;7.3.,

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letter # l Name/ Organization fDocked Section(s) Where Comment (s) Addressed l

Legin, Mark F. 205 7.1.1;7.3.1 lehmkuhl, David 256 7.1.1; 9.1.1 Leigyel, Dale V. 106 7.1.1;7.3.1 Lewis, Marvin 1. 350 3.2.9; 3.5.2; 3.5.3; 9.1.4 Lincoln, Robert M. 123 7.1.1;7.3.1 Lloyd, James E. 161 7.1.1 Lockridge, William J. 64 7.1.1;7.3.1 .

14flin, leonard 1.

See Carolina Power & Light Company Long Islaad Light.ing Company 297 3.5.24; 7.2.2; 10.1.7 Lor. koch, Anthony J., Jr. 179 7.1.1; 7.3.1 Louisiana Power & Light 318 3.1.1; 3.5.24 14 wry, Gerald L 178 7.1.1; 7.3.1 Luczho, Richard F. 83 7.1.1; 7.3.1 Luff, Gary J. 167 7.1.1 Lyle, Richard L. 12 7.1.1;7.3.1 Maas, A. R. 99 7.1.1;7.3.1 Maine Yankee 371 3.2.12; 3.3.13; 3.3.17; 4.4.3; 4.4.7; 4.5.1; 4.6.1; 4.7.1; 5.1.1; 7.4.1; 7.5.13; 8.2.1; 10.2.7; 10.3.3; 11.3.2; 11.3.5; 11.4.4; 11.5.1; 12.2.20; 12.2.21; 13.1.2; 13.2.1; 13.2.2; 14.2.3; 15.3.1; 15.4.1; 16.1.1; 16.4.4 Malody, C.W.

See AdvancedNuclearFuels Corporation Malone, John P. 135 7.1.1; 7.3.1 Markey, Edward J.

See U.S. House of Representatives

' Mathis, Ellis J. 77 7.1.1;7.3.1 Matthews, Robert 227 7.1.1 Mautino, Eugene J. 220 7.1.1; 7.3.1 B-13

Letter #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed McCarthy, Hugh J., Jr.

See Hugh J. McCarthy & A.sociates, Ltd.

McDonough, Stephen P. 363 7.1.1;7.3.1 McFarlane, Richard J., Jr. 52 7.1.1; 7.3.1 McGee, Dan 247 7.1.1; 9.1.1 McGowan, Neil C.

See IBEW, U-10 McKeeve, James E. 194 7.1.1; 7.3.1 McNally, Jack See Coalition of California Utility Workers 7.4.1; 7.3.1 l McNeil, Wade 141 Medford, M.O. -

See Southern California Edison Company 1

Meier, Daniel N. 169 7.1.1; 7.3.1 j l

Messina, Salvatore See Painters District Council No. 6 i

Middle South Utilities,Inc. 305 3.1.1; 3.5.24  !

J Milinski, George J. 120 7.1.1; 7.3.1 Miller, Al 103 7.1.1; 7.3.1 l

Miller, Donald 70 7.1.1;7.3.1 Miller, Mark R. 165 7.1.1; 7.3.1 Miltenberger, Steven E.

See Public Service Electric and Gas Company Mink, Henry 182 7.1.1; 7.3.1 Minsinger, Walter J. 364 7.1.1; 7.3.1 MITResearch Center 232 4.1.1; 18.1.1 I l

Moeller, James W. i l See Bishop, Cook, Purcell & l Reynolds and Nuclear Utility Backfitting and Reform Group l

B.14

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letter #

Name/Orennization Qgghg1) SectionM Where CommentM Addressed l Moody, Lloyd 127 7.1.1; 7.3.1

' Moore, Edward F. 128 7.1.1; 7.3.1 Morris, KJ.

See Omaha Public Power District Mroc-ka. E.J.

Se- artheast Utilities Munyan, Robert A.

See IDEW,Imal 1289 Murdy, Ray 201 7.1.1; 7.3.1 Nash, James 68 7.1.1; 7.3.1 Nat'l Org, of Test, Research, & 283 4.1.1 Training Reactors Nebraska Public Power District 224 3.1.1; 3.5.23; 6.1.4 Neight, Bill 250 7.1.1;9.1.1 Neil, Richard J., Jr. 289 3.1.9; 3.2.10 Nemethy, E.

See Ecology / Alert Nemmer, Karl 97 7.1.1;7.3.1 Netzel, Mary Ellen 190 7.1.1;7.'8.4 New York Power Authority 359 3.3.1; 3.5.23; 4.4.3; 5.1.1; 6.3.2; 7.4.1; 7.4.3; 7.5.12; 10.2.7; 10.3.1; 11.3.5; 11.5.1; 16.2.6; 18.1.1; 18.3.1 Newell, James D. 214 7.1.1 q Niagara Mohawk Power Corporation 304 3.1.1; 3.5.24; 5.1.1; 7.4.1; 11.3.2; 15.4 A; 16.2.6; 18.7.1; 19.1.4 Nix,llarvey C. 24 3.1.4; 3.4.8; 7.3.1; 12.1.7; 12.4.3; 12.4.5; 18.1.1 Nolan, Richl E. 177 7.1.1; 7.3.1 Norris,JefTrey A.

See Equal Employment Advisory Council Northeast Utilities 316 3.1.1; 3.5.23; 6.1.2; 6.1.9; 6.2.11; 7.4.2: 8.4.3; 10.2.3; 10.3.1; 10.3.3; 10.5.7; 10.6.7; 11.3.2; 14.1.3; 14.1.6; 18.3.1; 19.5.2 B-15

l 1

letter #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Northern States Power Company 271 3.2.12; 3.3.13; 3.5.14; 4.1.2; 4.4.3: 4.5.1; 4.6.1; 4.7.1; 6.2.1; 7.1.1; 7.1.3; 7.3.1; 7.3.4; 7.4.1; 7.4.4; 8.2.3; 8.2.9; 9.3.2; 10.2.4; 10.2.7; 10.3.6; 10.5.2; 11.3.2; 11.3.5; 11.4.2; 12.1.1; 12.2.1; 12.5.5; 13.2.2; 14.1.6; 14.2.1; 14.2.2; 14.4.1; 15.3.1; 16.1.1, 16.3.4; 16.3.5; 16.4.2; 17.2.2; 17.4.1; 17.5.1; 17.5.4; 18.2.1; 18.3.1; 18.5.1; 19.1.4 Nowak, Joseph M. 365 7.1.!:7.3.1 NuclearManagement and Resources 275 3.1.1; 3.2.2; 3.3.1; 3.3.3; 3.3.13; 3.3.15; 3.4.1; Council 3.4.2; 3.5.18; 3.5.25; 4.1.2; 4.1.3; 4.3.1; 4.4.3; 4.4.7; 4.5.1; 4.-6.1; 4.6.2; 4.7.1; 5.1.1; 6.1.1; 6.1,7; 6.1.9; 6.2.1; 6.2.8; 6.2.22; 7.2.1; 7.4.1; 7.4.2; 7.4.3; 7.4.5; j 7.4.10; 7.5.2; 7.5.3; 7.5.13; 8.2.1; 8.2.11; 8.4.5; 9.1.8; 1 9.2.2; 10.1.1; 10.2.1; 10.2.6; 10.3.1; 10.3.3; 10.4.2; l 10.5.5; 10.5.11: 10.6.1; 11.3.2; 11.3.5; 11.4.4; 11.5.1; 12.1.1; 12.1.3 12.2.1; 12.2.13; 12.2.16; 12.2.20; 12.7.1; 12.7.3; 12.7.6; 13.1.2; 13.2.1; 14.1.1; 14.1.3; 14.1.5; 14.2.1; 14.2.2; 14.2.3; 14.4.1; 15.1.1; 15.2.1; i 15.2.5; 15.3.1; 15.4.2; 16.1.1; 16.1.2; 17.4.1; 17.5.4; 18.3.1; 18.7.1; 18.8.4; 19.1.3; 19.1.4; 19.1.6; 19.1.8; 4 19.1.9 i

Nuclear Utility Backfitting and 312 19.5.2 I Reform Group l l

Nuti, John E. 153 7.1.1; 7.3.1 l O., Kenneth 56 7.1.1;7.3.1 Oil, Chemical & Atomic Workers 263 3.3.2; 3.3.6; 3.3.9; 6.2.6; 6.2.14; 7.1.1; 7.3.1; Int'l Union 8.4.4; 9.1.8; 10.3.5; 10.7.1; 12.4.6; 13.1.1; 14.1.2; 14.2.1; 18.1.1; 18.5.1 Olsen, David A. 249 7.1.1; 9.1.1 Omaha Public Power District 367 7.4.1; 12.5.1; 14.1.3; 16.4.2 Ordway, Earl C. 286 9.1.4; 18.1.1 Oregon State Department of Energy 261 4.7.3 Oregon State University 12 4.1.1 Orser, William S. I See Detroit Edison, Fermi 2 Owens, George J., Jr. 38 7.1.1;7.3.1 Owens, Gerald 20 3.1.1; 4.4.5; 6.1.2; 7.4.6; 7.4.11; 14.2.3; 18.8.1 Pacek, Lori A. 139 7.1.1;7.3.1 Pacific Gas and Electric Company 378 3.5.24 B-16

letter # l Name/ Organization (Docket) Section(s) Where Comment (s) Addressed l

Pacific, Keith A. 218 7.1.1; 7.3.1 )

Pack, Robert J. 130 7.1.1;7.3.1 Page, Joseph R. 221 7.1.1; 7.3.1 Painters District Council No. 6 35 3.5.1; 5.1.5; 6.2.7; 7.1.1; 7.4.15; 10.4.11; 12.7.15 Pannier, Charles L. 84 7.1.1;7.3.1 Parks, Joseph W.

See IBEW, U-9 Pascarelle, Vitale C. 149 7.1.1; 7.3.1 Pasvogal, Norma D. 253 7.1.1;9.1.1 Patterson, John T. 344 3.1.9; 14.5.1 Pavlovich, Charles J. 74 7.1.1; 7.3.1

( Payne, Charles W.

See IBEW, Local 1064 Peart, Jeffrey C. 82 7.1.1; 7.3.1 l Pennsylvania Power & Light 374 3.5.24; 14.2.3 l Company Pennsylvania State University 259 4.1.1 Peterman, Kirk 16 3.1.2; 3.1.9; 7.1.1; 7.3.9; 9.3.2; 14.5.1; 18.1.1; 19.1.4 Peters, Terry L. 225 7.1.1; 7.3.1 Pfennigwerth, J. R. 166 7.1.1; 7.3.1 Pfister, Joseph A. 96 7.1.1; 7.3.1 Philadelphia Electric Company (Kelly, Robert G., A.) 60 3.2.4; 3.4.5; 4.3.3; 7.3.1; 14.5.1; 18.1.1; 18.1.2 (Fogarty, Ed) 269 3.2.2; 3.3.2; 3.3.13; 3.3.17; 3.4.1; 3.4.12; 3.5.12; 4.1.2; 4.4.3; 4.4.7; 4.5.1; 4.6.1; 4.7.1; 6.1.7; 6.1.11; 6.2.3; 6.2.21; 6.3.9; 7.4.1; 7.4.2; 7.4.10; 7.5.5; 7.5.8; 7.5.13; 8.2.5; 10.1.2; 10.1.5; 11.3.2; 11.3.5; 11.4.4; I 11.6.2; 12.1.5; 12.2.9; 12.2.17; 12.6.1; 13.1.2; 14.1.3; 14.1.5; 14.2.2: 14.2.3; 15.3.1; 16.1.1; 16.1.2; 16.4.2; 17.4.1; 18.1.1 Polesak, Richard 114 7.1.1; 7.3.1 Portland GeneralElectric Company 354 3.2.12; 4.5.1; 4.7.1; 4.7.2; 6.2.3; 7.2.3; 7.4.1; 10.2.7; 10.3.1; 10.4.8; 12.1.1; 12.6.4; 16.1.1; 17.3.1; 17.4.1 B-17

l l

l' l

Letter #

Name/Orconiration (Dxketl Section(s) Where Comment (s) Addressed Poziviak, John M. 94 7.1.1; 7.3.1 1

l' Pritchard, Joseph O. 31 7.1.1;7.3.1 Probst, James R. 342 3.1.1; 3.1.2; 3.3.2; 3.3.20; 6.1.1; 7.2.2;7.3.8; 8.2.3; 9.2.2; 9.2.4; 9.3.6; 12.6.9; 14.5.1; 15.3.2; 18,1.1 -4 Public Citizen 377 3.2.2; 3.4.6; 4.4.3; 4.7.1; 6.1.1; 10.3.8; 12.6.6; 15.4.5; 15.4.7; 16.1.3; 16.2.14; 16.2.18; 16.3.1; 16.3.2; 16.3.3; 16.5.6 Public Service Company of 349 3.2.2; 3.3.8; 3.3.15; 3.4.1; 3.5.1; 3.5.15; 3.5.18; Colorado 3.5.23; 3.5.26; 4.1.2; 4.1.3; 4.3.1; 4.4.3; 4.4.7; 4.5.i; 4.6.1; 4.6.2; 4.7.1; 5.1.1; 6.1.2: 6.2.19; 6.2.22; 6.3.4; 7.2.1; 7.4.1; 7.5.3; 7.5.13; 8.2.4; 8.2.7; 8.2.11; 10.1.1; 11.2.1; 11.3.2; 11.5.1; 12.1.1; 12.2.1; 12.2.13; 12.2.20; 12.7.2; 12.7.6; 13.1.2; 13.4.9; 14.1.1; 14.1.3; 14.1.5; 14.2.2; 14.4.1; 15.2.1; 15.2.5; 15.3.1; 15.4.2; 16.1.1; 16.4.2; 17.5.4; 18.3.1; 18.7.1; 19.5.2 Public Service Electric and Gas 264 3.3.17; 3.5.9; 4.4.2; 4.4.3; 4.6.2; 5.1.1; 5.1.2; Company 6.1.12; 6.2.22; 7.4.1; 7.5.13; 8.2.1; 8.3.2; 8.4.5; 10.1.1; 11.3.2; 11.5.1; 12.2.1; 12.2.13; 12.2.16; 12.7.1; 12.7.3; 12.7.6; 13.1.2; 13.2.1; 14.1.5; 14.2.10; 14.4.1; 15.1.2; 15.3.1; 16.1.1; 16.1.2; 16.2.19; 17.5.4 Public Service of New Hampshire 279 3.5.23; 4.5.1; 4.6.2; 10.3.1; 10.6.2; 18.7.1 Puck, Jim 296 7.1.1; 7.3.1 Purcell, James E. 9 7.1.1; 18.1.1 Quatchel, Lawrence H. 145 7.1.1;7.3.1 Rabias, John ~'

l See Utility Workers of America, 1mcal 12 Rader, Robert M.

See Conner & Wetterhahn, P.C.

]

Rankin, Greg 287 7.1.1; 9.1.1 Ray, James 138 7.1.1;7.3.1 Reed, Cordell See Commonwealth Edison Reinstadtler, J. L. 93 7.1.1;7.3.1 Renner, Gary W. 75 7.1.1; 7.3.1 13- 1 8

J Letter #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Reynolds, Nicholas S.

See Bishop, Cook, Purcell &

Reynolds and Nuclear Utility ,

Backfitting and Reform Group j Reynolds, Robert C. 116 7.1.1; 7.3.1 Richardson, Michael L 156 7.1.1; 7.3.1 '

Rickenbacker,Bamey See Carolina Power & Light Company Ritchart, Wayne 81 7.1.1;7.3.1 Ritter, Joseph S. 162 7.1.1 Robbins, John See IBEW, local 144 Rochester Gas & Electric Corporation 347 3.1.1; 3.5.24; 6.1.11; 7.4.3; 10.5.4; 14.1.3; 14.1.5;

18.7.1 Rodi, Nicholas 73 7.1.1; 7.3.1 Rodriguez, Eddie 294 7.1.1;7.3.1 Roell, R. J. 105 7.1.1; 7.3.1 Roeser, David E. 184 7.1.1 Rombach, Gerald 51 7.1.1; 7.3.1 Rothert, William C.

See Iowa Electric Light and Power Company Rusnak, Larry J. 110 7.1.1; 7.3.1 Russell, Frank T. 140 7.1.1; 7.3.1 Rutkowski, T. 171 7.1.1; 7.3.1 Ruzicka, Richard E. 41 7.1.1; 9.3.5; 14.5.1 Sabo, A.T.

See Westinghouse Electric Corapany

(.

B-19

leuer #

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Sacramento Municipal Utility District 329 3.1.2; 3.2.2; 3.3.13; 3.3.19; 3.5.4; 4 3.3; 4.5.1; 4.7.1; 6.1.1; 6.1.6; 6.2.22; 6.3.4; 7.3.12; 7.4.1; 7.4.14; 7.5.13; 8.1.3; 8.2.12; 9.3.1; 9.3.3; 9.3.4; 10.2.3; 10.3.1; 10.3.3; 10.3.14; 10.4.5; 10.5.13; 10.6.2; 10.6.3; 10.6.6; 11.2.1; 11.2.3; 11.3.2; 11.4.1; 11.6.1; 12.1.1; 12.2.3; 12.2.11; 12.2.13; 12.2.21; 12.3.2:

12.6.1; 12.7.5; 13.1.1; 13.1.2; 13.1.4; 13.2.1; 13.2.5; 13.4.3; 13.4.4; 13.4.7.; 14.5.3; 15.1.2; 15.1.3; 15.2.5; 15.2.6; 15.'3.3; 16.1.1; 16.1.2; 16.1.6; 16.1.7; 16.1.9; 16.5.1; 18.3.!; 18.4.1; 19.1.4 Sagar, Ken D.

See IBEW,I.oca1204 Saldutte, David J. 88 7.1.1; 7.3.1 Sargent & Lundy Engineers 230 3.3.10; 3.4.4; 4.4.3; 7.2.2; 7.4.1; 10.1.1; 10.3.3; 12.2.1 Scariot, Ralph A. 198 7.1.1; 7.3.1 Scarlato, Rocco 100 7.1.1; 7.3.1 Schanck, Joseph L. 163 7.1.1 Schlosser, James M.

See IBEW, Loca12279 Schneli, Donald, F.

See Union Electric Company Schrouder, Wilfred J., Jr.

See Rochester Gas & Electric

Corporation Schuttise, Arthur R. 125 7.1.1; 7.3.1 Schwartz, Richard K. 164 7.1.1; 7.3.1 Sears, Timothy See United Brotherhood of Carpenters & Jo.!ners of America Selman, Murray See Consolidated Edison Co.

of New York, Inc.

Semk, Mark D. 119 7.1.1; 7.3.1 Shaffer, Gerald J. 200 7.1.1;7.3.1 Sharp, Phillip R.

See U.S. House of Representatives l

t l l Shelton, Donald C.

l See The Toledo Edison Company B-20

Letter #

Name/ Organization (Docket) SectionM Where CommentM Addressed _

Shenider, Thomas W. 40 7.1.1; 7.3.1 Sherman, Dan See IBEW, Local 2150 Shiffer, James D.

See Pacific Gas and Electric Company Shunsky, Benjamin J. 66 7.1.1; 7.3.1 Sieber, J. D.

See Duquesne Light Company.

Signature Unreadabic 204 7.1.1; 7.3.1 Sizemore, D.

See IDEW, U-1 Skripets, Edward F. 185 7.1.1; 7.3.1 Slobodnyak. Thomas J. 208 7.1.1; 7.3.1

- Smeltzhy, Daniel A. 254 7.1.1; 9.1.1 Smith,11any E., Jr. 188 7.1.1; 7.3.1 j Snebold, Thomas A. 226 7.1.1; 7.3.1 Society for Clinical Social Work 341 13.2.6 Sorensen, G.C.

See Washington Public Power Supply System South Carolina Electric & Gas 353 .3.5.24; 4.4.3; 7.4.10; 11.2.3 11.3.1; 11.3.5; 11.5.1; Company 13.1.2; 17.4.1 Southern California Edison 317 3.1.1; 3.3.1; 3.3.3; 3.3.13; 3.4.1; 3.4.2; 3.5.18; Company 3.5.27; 4.1.3: 4.3.3; 4.4.3: 4.4.7; 4.5.1; 4.6.1; 4.6.2; 6.1.7; 6.1.9; 6.4.1; 7.2.2; 7.4.1; 7.4.2; 7.4.3; 7.4.7; 7.5.3; 7.5.13; 8.2.8; 8.2.11; 8.4.5; 10.1.1; 10.5.5; 11.3.2; 11.3.3; 11.3.5; 11.4.4; 11.5.1; 12.1.1; 12.2.1; 12.2.13; 12.6.7; 12.7.1; 12.7.12; 13.1.2; 13.4.5; 14.1.5; 14.2.2; 14.4.1; 15.1.1; 15.2.2; 15.2.5; 15.3.1; 16.1.1; 16.2.1; 16.2.13; 16.2.15; 16.2.17; 16.2.19; 16.3.4; 17.4.1; 17.5.4; 18.3.1; 18.7.1; 18.8.2 Spainhower, Craig 248 7.1.1; 9.1.1 l

Speakman, Richard J. 361 7.1.1;7.3.1 St. John, Kevin E. 360 3.1.6; 7.3.1; 7.4.2; 7.5.1; 14.5.1 Stafford, James P. 29 7.1.1;7.3.1 B-21

Letter #

Name/ Organization Qocket) Section(s) Where Comment (s) Addressed Stanko, Byron K. 44 7.1.1;7.3.1 Stanley, Mary Anne 334 3.2.8; 4.3.3; 6.f.1; 6.2.20; 7.1.1; 7.1.3; 7.4.1; 10.8.2; 18.1.1 Stanley, William S. 336 3.3.2;7.12;7.4.1;92.2;14.5.1;18.1.1 Stanzel, Michael E. 118 7.1.!; 7.3.1 State of Washington 266 4.7.3 Staub, George L. 80 7.1.1;7.3.1 Steinhardt, C.R.

See Wisconsin Public Service Corporation Stenger, Daniel F.

See Nuclear Utility Backfitting and Reform Group Stewart, Robert S. 233 4.3.3; 7.3.1; 9.3.5; 18.1.2 sullivan, J. L., Jr.

See GPU Nuclear Corporation i

Sultin, Gene R. 43 7.1.1;7.3.1 Swiech, Paul F. 55 7.1.1; 7.3.1 Swiger, Edmund G. 115 7.1.1;7.3.1 System Energy Resources,Inc. 303 3.1.9; 3.3.11; 3.5.24; 4.2.1; 4.3.1; 4.7.1; 7.2.1; 7.4.1; 10.1.1; 10.3.2; 10.6.1; 11.3.2; 12.2.1; 13.1.2; 14.1.3; 14.1.7; 16.1.1; 18.7.1; 19.1.6 Tennessee Valley Authority 375 3.3.16; 3.5.9; 3.5.23; 4.3.1; 4.3.6; 6.1.1; 6.1.7; 6.2.1; 6.2.8; 7.4.1; 7.4.2; 10.1.2; 12.1.3; 12.1.8; 12.7.4; 12.7.6; 13.2.2; 14.2.3; 18.4.1; 18.7.1 Texas A&M University 268 4.1.1 The Light ' 'mpany 19 3.3.2; 3.4.11; 4.2.1; 4.3.3; 4.4.1; 4.6.1; 6.1.1; 6.1.2; 6.2.1; 6.2.3; 6.2.6; 6.2.13; 7.2.1; 7.2.2; 7.4.1; 9.1.6; 10.1.1; 11.3.1; 12.2.20; 12.5.6; 12.7.7; 13.1.5; 14.1.2; 14.1.3; 14.1.11; 16.1.1; 16.4.2; 19.1.1; 19.1.7 The Toledo Edison Company 358 0.2.2; 3.5.12; 3.5.23; 4.3.3; 4.4.3; 4.5.1; 4.7.1; 4.7.4; 5.1.1; 5.1.2; 6.1.2; 6.2.22; 7.2.1; 7.2.2; 7.4.2; 10.1.1; l 10.3.2; 11.3.2; 11.5.1; 11.6.2; 12.2.21; 12.4.4; 13.1.2; l'

13.2.1; 14.1.2; 14.1.3; 14.2.1; 14.2.2; 14.2.3; ISA1:

16.1.1; 16.4.6 i Thomas, George S.

See Public Service of New Hampshire i i

B-22 J

__-_-____D

Letter #

Name/ Organization (Docked Section(s)Where Comment (s) Addressed r

Thomas, Jeatme 189 7.1.1;7.3.1 Tiernan, Joseph A.

See Baltimore Gas and Electric Trevors, George A.

See Nebraska Public Power District Tscheme, Larry J.

See IBEW,1.oca1245 TU Electric 355 3.5.22; 3.5.23; 4.6.2: 6.1.2; 6.2.11; 10.3.2; 10.5.1; 10.6.1; 10.6.2; 11.3.2 Tucker, Hal B.

See Duke Power Company Tunstill, Jack W., P.E. 290 4.6.1; 4.7.1; 6.1.2; 10.3.16; 14.1.3 16.1.1; 18.1.1; 18.7.1 i

Turici, James 1. 78 7.1.1;7.3.1 Tumer, James A.

See Utility Workers Union of America Local 246 Turner, Oran R. 5 3.1.2;9.1.1;9.3.2 U.S. IIouse of Representatives (Sharp, Phillip R.) 4 3.1.1; 3.2.3; 4.2.1; 6.1.1; 16.2.16; 16.5.4 (Markey, Edward J.) . 328 3.1.1; 4.2.1; 6.1.1; 6.2.22; 13.1.1; 16.2.18 Union Electric Company 278 3.2.12; 3.3.1; 3.3.3; 3.3.13; 3.3.15; 3.5.18; 3.5.23; 4.1.2; 4.1.3; 4.3.i; 4.4.3; 4.5.1; 4.7.1; 4.7.5; 6.1.1; 6.3.10; 7.3.17; 7.4.1; 7.4.2; 7.4.3; 7.5.1; 7.5.3; 7.5.13; 8.2.1; 10.1.1; 10.1.4; 'O.3.12; 10.5.3; 10.5.12; 11.2.1; 11.3.2: 12.4.3; 12.4 5; 12.5.1; 13.1.2; 13.2.3; 14.1.3; 14.2.2: 14.4.1; '5.2.1; 15.2.5; 15.2.8; 15.3.1; 15.4.2; 16.1.1; 16.1.8; 16.3.4; 16.4.2; 16.4.5; 16.5.5; 17.5.4; 18.7.1; 19.1.4 United Brotherhood of Carpenters

& Joiners of America (Sears Timothy) 310 3.1.2; 3.3.2; 3.3.12; 6.3.7; 7.1.1; 7.1.5; 7.3.1; 9.1.1; 9.1.10; 10.1.2; 10.7.1; 14.1.2; 14.1.3; 14.1.6; 14.3.1; 15.2.5; 18.1.1; 18.3.2; 19.1.4 l (Gorman, Edward J., III) 314 19.1.1; 19.1.4; 19.1.5; 19.1.6; 19.1.9; 19.1.10; 19.1.11; 19.2.1; 19.3.1; 19.4.1; 19.5.4 j 370 4.33; 6.1.1; 6.2.16; 6.3.4; 7.4.17; 8.2 3; 9.1.8; 9.1.10; 9.2.1; 9.3.3; 9.3.5; 10.2.7; 10.3.6; 10/1.14; 10.7.1; 1

10.8.4; 11.3.1; 12.5.7; 13.1.1; 14.1.3; 14.2.4; 14.3.1; 16.4.3; 18.1.1; 18.3.2; 18.5.1; 19.1.2; 19.1.4 B-23

Jl 9 j d

letter #

Nama/Oreanir atinn _ (Docket) Section(s) Where Comment (s) Addressed

United Plait GuardWorkers of. 325 3.3.2; 9.3.2; 10.2.2; 18.1.1; 18.3.1 ,

America - i

, United States Department of 321- 4.1.1 Commerce University of Florida - 292 4.1.1

' Unsignet!  ! 3.1.2; 6.3.4; 6.3.5; 6.3.6; 9.1.3 315. 3.1.2; 3.3.2; 3.3.18; 4.3.3; 6.2.3; 6.2.17; 7.3.10; 9.1.1; 9.3.3; 10.5.8; 11.2.1; 12.2.8; 14.1.3; 16.4.2; 18.1.1; 18.3.1 Utility Workers Union of America 308- 3.2.1; 3.3.2; 3.3.10; 3.5.8; 6.2.19; 7.1.1; 7.3.1; 7.4.16; 7.4.19; 8.1.2; 8.1.4; 8.2.10; 8.4.4; 10.1.3; 10.7.1; 11.3.1; 12.5.3; 14.1.3; 14.2.11; 14.3.1; 16.4.2; 18.5.1 J Utility Workers Union of America,-

Local 1 (Catana, John L., Jr.) 288 4.6.1; 14.5.1; 18.3.3 (Briody, Eugene T.) '332 3.1.2; 3.3.2; 7.1.1; 18.1.1; 18.5.1 (Rabias, John) 257 3.2.1; 4.6.1; 7.3.13; 9.1.1; 13.1.1; 14.5.1 Utility Workers Union of America, local 246 (Godfn:y, Myrant, Jr.)

228 3.1.9; 6.2.10; 6.2.22; 7.1.1; 11.3.1; 14.1.6; 14.5.1; 18.3.1 (Tumer, James A.) 229 3.1.2; 3.2.1; 6.3.4; 7.1.1; 8.3.1; 8.3.3; 9.3.2; 14.5.1 (Garcia, Bernardo R.) 251 3.1.3; 3.3.2; 3.5.1; 4.1.2; 4.3.3; 7.1.1; 7.3.1; 9.3.2:

10.4.1; 11.3.1; 12.4.1; 14.1.3; 14.2.1; 14.2.6; 14.5.1; 18.1.1

' Valenti, David J. 181 7.1.1 Wn Horn, William W., Jr. 159 7.1.1; 7.3.1 Vermont Yankee Nuclear Power 324 3.5.23; 4.3.2; 7.4.1; 18.3.1 Corporation Vernetson, William G.

See University of Florida Virginia Electric and Power 366 6.1.7; 7.4.1; 7.4.2; 7.4.3; 10.1.1; 10.2.3; 10.3.1;

' Company 10.3.3; 11.3.2; 12.2.14 Voeltz, Andrew D. 258 7.1.1; 9.1.1 Voth, Marcus H.

See Nat'l Org, of Test, Research

& Training Reactors B-24

letter # .,

Name/ Organization (Docket) Section(s) Where Comment (s) Addressed Walsh, Edward R. 95 7.1.1; 7.3.1 .l

'Walters, John 137 7.1.1; 7.3.1 Ward, William T. 174 7.1.1; 7.3.1 Warren, Cameron 234 7.1.1; 9.1.1 1 1

. Warren, Monica 243 7.1.1;9.1.1 Washington Public Power Supply 372 3.5.24; 10.6.2 System Washington State University 22 4.1.1 Watenpool, Robert A. 143 7.1.1; 7.3.*

Weigand,J. Gary See Vermont Yankee Nuclear Power Corporation West, Kenneth L. IN 7.1.1; 7.3.1 Westinghouse Electric Company 299 3.3.13; 3.3.17; 3.4.4; 4.4.4; 5.1.1; 5.1.2; 6.3.9; 8.2.8; 10.1.1; 10.3.3; 11.3.5; 11.5.1 l

Wheeler, Jarrett C. 53 7.1.1;7.3.1 Whitehead, G. G.

- See IBEW, Local 1323 Whittier, G. D. i See Maine Yankee Wiersema, Robert J. 235 7.1.1; 9.1.1 Wilgus, W. S.

See Florida Power Corporation Will, David J. 323 3.2.11; 3.2.12; 3.3.2; 3.3.4; 3.3.6; 4.6.1; 6.3.4; 7.1.1; 8.3.3; 12.2.2; 12.5.2; 72.7.8; 13.2.3; 14.1.2; 14.2.1; 16.1.5; 18.L1; 18.1.3 Williams, Frank, Jr. 191 7.1.1; 7.3.1 .

Williams, R. O., Jr.

See Public Service Company of Colorado l Wilson, Gary D.

See Niagara Mohawk Power l Corporation Wilson, W. E.

See Washington State University B-25

Letter #

Name/Qggiration (Docket) Section(s) Where Comment (s) Addressed Winters, Marc A.

See IBEW,loca1272 Wisconsin Electric Power Company 281 3.1.1; 3.3.1; 3.3.5; 3.3.13; 3.3.17; 4.1.2; 4.4.3; 4.5.1; 4.6.1; 6.1.2; 6.2.12; 7.2.1; 7.4.1; 7.4.8; 8.2.4; 8.3.2; 9.1.8; 10.1.2; 10.5.9; 11.3.2; 11.3.5; 11.5.1; 12.2.1; 12.2.10; 12.2.13; 12.2.20; 13.1.2; 14.1.3; 14.2.1; 14.2.2; 14.2.3; 15.2.6; 15.3.1; 16.1.1; 16.2.4; 16.4.2; 17.4.1; 18.8.2; 19.1.4 Wisconsin Public Service 340 3.1.9; 3.3.13; 3.3.14; 3.5.23; 4.4.3; 4.5.1; 4.6.1; Corporation 5.1.1; 6.1.2; 7.1.1; 7.4.1; 7.5.4; 7.5.6; 7.5.13; 8.3.2; 8.3.3: 9.3.2; 10.1.1; 11.3.2; 12.1.1; 12.2.5; 12.2.15; 12.7.13; 13.1.2; 14.1.1; 14.2.2; 14.2.7; 14.3.2; 15.2.1; 15.2.2; 16.1.1; 16.1.2; 16.2.1; 17.4.1; 18.3.1; 19.1.1 Woessner, William 209 7.1.1;7.3.1 Wolf Creek Nuclear Operating 348 3.5.24; 4.5.1; 12.1.3; 14.1.10; 14.2.3; 16.1.5; 18.7.1 Corporation

. Wolf, Gregory W.

See IDEW, Local 30 Wolfe, Kenneth P. 63 7.1.1; 7.3.1 Woodlan, D.R.

See TU Electric Yaksetich, David R. 142 7.1.1 Yankee Atomic Electric Company 306 3.5.23; 4.3.2; 4.5.1; 5.1.1; 7.4.1; 8.2.11; 12.1.1; 12.6.3; 12.7.3; 13.1.2; 14.2.1; 14.2.2; 15.2.5; 16.1.1; 17.5.4 Youngdahl, Russell C.

See Long Island Lighting Company Zaccaria, A.

See BechtelPower Corporation Zebelman, Arthur M., Ph.D.

See Laboratory of Pathology Zychowicz, Raymond J.

See IBEW, Local 245 l

B-26

APPENDIX C NumericalList for Public Meeting 1

i i

i l

1 f

APPENDIX C Nn=aricali let for Public Maetine Comment '

Numher Name of enmmentar Affilhtion M-1.1 Dickey, John Consumers Power Company M 1.2 r Lohrian, Bob Combustion Engineering

' M-1.3 Owen, David Carolina Power & Light Company M-1.4 Owen, David Carolina Power & Light Company

. M-1.5 Eells Tom Wisconsin Electric Power Company M-1.6 Eells, Tom Wisconsin Electric Power Company M-1.7 Mosher, Bill Consumets Power Company M-1.8 . Torrence, Jim National Bureau of Standards Reactor M-1.9 Vanek, Ron Utility Workers Union M-1.10 Vanek, Ron Utility Workers Union M 1.11 Vanek, Ron Utility Workers Union M-1.12 Vanek, Ron Utility Workers Union M-1.13 Vanck, Ron Utility Workers Union M-1.14 Vanek, Ron Utility Workers Union M-1.15 Vanck, Ron Utility Workers Union M-1.16 Vanek, Ron Utility Workers Union M-1.17 Vanck, Ron Utility Workers Union M-1.18 Vanck, Ron Utility Workers Union M 1.19 Vanck, Ron Utility Workers Union M-1.20 Vanck, Ron Utility Workers Union M 1.21 Vanck, Ron Utility Workers Union M-1.22 Vanck, Ron Utility Workers Union M-1.23 Vanck, Ron Utility Weser. Union M-1.24 Vanck, Ron Utility Workers Union C-1 i

l i Comment

! Number ' Name of Commente* Affiliation M 1.25 Bensinger, Peter Bensinger,DuPont and Associates M-1.26 Bensinger, Peer Bensinger, dup.)nt and Associates M-1.27 Bensinger, Peter Bensinger,DuPont and Associates M-1.28 Vanck, Ron Utility Workers Union M-1.29 Vanck, Ron Unlity Workers Union l

l M-1.30 Vanck, Ron Udlity Workers Union M-1.31 Vanck, Ron Unlity Workers Union M 1.32 Vanck, Ron Unlity Workers Union M-1.:.3 Vanck, Ron Udlity Workers Union M-1,34 Vanek, Ron Unlity Workers Union M-1,35 ( Vanck, Ron Utility Workers Union M-1.36 Vanck, Ron Untity Workers Union M 1.37 Vanck, Ron Unlity Workers Union M-1.38 Bensinger, Peter Bensinger, DuPont and Associates M-1,39 lak, Dale Florida Power Corporation M 1.40 Moore, Mark TRTR Association M-1.41 Moeller, Peter Public Service Electric & Gas M-1.42 Moellcr, Poict Public Service Electric & Gas M-1.43 Moeller, Peer Public Service Electric & Gas M-1.44 Madden, George Florida Power & Light Company M-1.45 Wells, Russ GPU Nuclear M-1.46 Pucko, Tim Public Service of New Hampshire M-1.47 Pucko, Tim Public Service of New Hampshire M-1.48 Madden, George Florida Power & Light Company M-1.49 Mack!cn, George Florida Power & Light Company M-1.50 Madden, George Florida Power & Light Company M-1.51 Madden, George Florida Power & Light Company i C-2 1'

l

Comment Number Name of Commenter Affiliation M-1.52 Macklen, George Florida Power & Light Company M-1.53 Eells, Tom Wisconsin Electric Power Company M-1.54 EcIls, Tom Wisconsin Electric Power Company M-1.55 MacDonald,Rotert intemational Brotherhood of Electrical Workers M-1.56 11udson, Gary Northern States Power Company M-1.57 Madden, George Florida Power & Light Company M-1.58 Wisniewski, Kathleen Florida Power & Light Company M-1.59 Wisniewski, Kathleen Florida Power & Light Company M-1.60 Knuth, Don KMC M-1.61 Wisniewski, Kathleen Florida Power & Light Company M-1.62 Dyer, William Pennsylvania Power & Light Company M-1.63 Dyer, William Pennsylvania Power & Light Company M-1.64 MacDonald,Rotert International Brotherixxxl of Electrical Workers M-1.65 Marcell, Shaun Abbot Laboratories M-1,66 Marcell, Shaun Ablot Laboratories M-1.67 Marcell, Shaun Ablot Laboratories M-1.68 Marcell, Shaun Ablot Laboratories M-1.69 Marcell, Shaun Ablot Lateratories M-1.70 Vanck, Ron Utility Workers Union M-1.71 Vanck, Ron Utility Workers Union M-1.72 Vanck, Ron Utility Workers Union M-1.73 Vanck, Ron Utility Workers Union M-1.74 Dickey, John Consumers Power Company M-1.75 Dickey, John Consumers Power Company M. I .76 Dickey, John Consumers Power Company M-1.77 11all, Earl (private individual)

M-1.78 11all, Earl (private individual)

C-3

Comment Number Name of Commenter Affiliation M-1.79 Hall, Earl (privateindividual) e M-1.80 Hall, Earl (frivateindividual)

M-1.81 Bensinger, Peter Bensinger,DuPont and Associates M-1.82 Bensinger, Peter Bensinger,DuPontand Associates M-1.83 Bensinger, Peter Bensinger DuPontand Associates M-1.84 Bensinger, Peter Bensinger, DuPont and Associates M-1.85 Bensinger, Peter Bensinger,DuPontand Associates M-1.86 Bensinger, Peter Bensinger,DuPont and Associates M-1.87 Bensinger, Peter Bensinger DuPontand Associates M-1.88 Bensinger, Peter Bensinger,DuPontand Associates M-1.89 ) Bensinger, Peter Bensinger, DuPont and Associates M-1.90 Bensinger, Peter Bensinger,DuPontand Associates M-1.91 Bensinger, Peter Bensinger,DuPont and Associates M-1.92 Lailheugue, Bob Louisiana Power & Light Company M-1.93 lailheugue, Bob Louisiana Power & Light Company M-1.94 Lailheugue, Bob Louisiana Power & Light Company M-1.95 lailheugue, Bob Louisiana Power & Light Company M-1.96 Lailheugue, Bob Louisiana Power & Light Company M-1.97 MacDonald,Rolcrt International Brotherhood of Electrical Workers M-1.98 MacDonald, Robert International Brotherhood of Electrical Workers M 1.99 MacDonald, Robert International Brotherixxxl of Electrical Workers M-1.100 MacDonald, Robert International Brotherho(x! of Electrical Workers M-1.101 MacDonald,Rotert International Brotherhood of Electrical Workers M-1.102 MacDonald, Robert International Brotherhcxx! of Electrical Workers M-1.103 MacDonald, Robert International Brotherixxx! of Electrical Workers M-1.104 Wesner, Jim Pennsylvania Power & Light Company M- 1.105 Wesner, Jim Pennsylvania Power & Light Company C-4

I Comment Nnmher Name of Commenter Affiliation l

M-1.106 Wesner, Jim Pennsylvania Power & Light Company M-1.107 Hans, Bob ArizonaPublicService PaloVerde M-1.108 Hans, Bob Arizona Public Service,Palo Verde M-1.109 Mosher, Bill Consumers Powes Company M 1.110 Owen, David Camlina Power & Light Company M-1.111 Owen, David Carolina Pow:x & Light Company M-1.112 Mailen. George Florida Power & Light Company M-1.113 Madden, George Florida Power & Light Company M-1.114 Madden, George Florida Power & Light Company M-1.115 Rind, Michael Br.ltimore Gas & Electric Company M-1.116 Rind, Michael Baltimore Gas & Electric Company M-1.117 Rind, Michact Baltimore Gas & Electric Company M-1.118 Dyer, William Pennsylvania Power & Light Company M-1.119 Dyer, William Pennsylvania Power & Light Company M-1.120 Dyer, William Pennsylvania Power & Light Company M-1.121 Madden, George Florida Power & Light Compaq M-1.122 Hudson, Gary Northern States Power Company M-1.123 Hudson, Gary Northem States Power Company M-1.124 Hudson, Gary Northern States Power Company M-1.125 McCarthy, Raymond Public Service Electric & Gas M-1.126 McCanhy,Raymond Public Service Electric & Gas M-1.127 McCarthy, Raymond Public Service Electric & Gas M-1.128 McCarthy, Raymond Public Service Electric & Gas M-1.129 McCarthy, Raymond Public Service Electric & Gas M-1.130 Peters, Jeff Rochester Gas & Els ric M-1.131 MacDonald,Rolert International Brotherhood of Electrical Workers M-1.132 Mosher, Bill Consumers Power Company C-5 b

CoinitteId Number Name of Commenter Affiliation M-1.133 Hall, Earl (privateindividual)

M-1.134 Phillis, Ma-k Bishop, Cook, Purcell, & Reynolds M-1.135 Wetterhahn, Mark Conner & Wetterhahn M-1.136 Wetterhahn, Mark Conner & Weacrhahn M-1.137 Rind, Michael Baltimore Gas & Electric Company M-1.138 MacDonald, Robert International Brothediood of Electrical Workers M-1.139 Heritage, Dave Northeast Utilities M-1.140 Rind, Michael Baltimore Gas & Electric Company M-1.141 Wetterhahn, Mark Corr. t & Wetterhahn M-1.142 Wetterhal ri, Mark Conner & Wetterhahn M-1.143 MacDonsid, Robert Intemational Brotherhood of Electrical Workers M-1.144 Wisniewski, Kathleen Florida Power & Light Company M-1.145 Wisniewski, Kathleen Florida Power & Light Company M-1.146 Wisniewski, Kathleen Florida Power & Light Company M-1.147 Vigil, Juan Nebraska Public Power District M-1.148 Madden, George Florida Power & Light Company M-1.149 Madden, George Florida Power & Light Company M-1.150 Madden, George Florida Power & Light Company M-1.151 Madden, George Florida Power & Lig'ht Company M-1.152 Madden, George Florida Power & Light Company M-1.153 Madden, George Florida Power & Light Company M 1.154 Madden, George Florida Power & Light Company M-1.155 Torrence, Jim National Bureau of Standards Reactor M-1.156 Parks, . ... .. . Unknown M-1.157 Torrence, Jim National Bureau of Standards Reactor I M 1.158 Torrence, Jim National Bureau of Standards Reactor  !

M-1.159 Torrence, Jim National Bureau of Standards Reactor C-6

~

j.i: <

x z i

Cominent :

1' Affiliation

< N..=har Name of cemeneer M-1.160 Tonence, Jim National Bureau of Standards Reactor M-1.161  : Wisniewski, Kathleen Florida Power & Light Company -

,, - M-1.162 Wisniewski, Kathleen Florida Power & Light Company M-1.163 MnMe11, George Florida Power & LightCompany.

M 1.164 Knuth, Don KMC M-1.165 Knuth, Don KMC M-1.166 Knuth, Don KMC h ' M-1.167 Knuth, Don KMC M-1.168 Wetterhahn, Mark Conner & Weuerhahn M-1.169 Wetterhaha, Mark Conner & Wetterhahr, M-1.17U . Wetterhahn, Mark Conner & Wetterhahn M-1.171 Wisniewski, Kathleen Florida Power & Light Company 5 M.1.172 Wisniewski, Kathleen Florida Power & Light Company

. M-1.173 .Wisniewski, Kathleen Florida Power & Light Company M-1.174 Wisniewski, Kathleen Florida Power & LightCompany M-1.175 Wisniewski, Kathleen Florida Power & Light Company M-1.176 . Torrence, Jim National Bureau of Shindards Reactor M-1.177 , Bensinger, Peter Bensinger DuPontand Associates M-1.178 Bensinger, Peter Bensinger, DuPont and Associates M-1.179 Dickey, John Consumers Power Company M-1.180 Dickey, John Consumers Power Company q.

N

C-7

l' .e' 4rk 1'

APPENDIX D Alphabetical List for Public Meeting i

1 I

1. l 1

APPENDIX D Alnhabethical List for Public Meeting ]

Commenter's Name/ Affiliation Section(s) Where Comment (s) Addressed q l

Bensinger, Peter 3.1.5; 6.1.1; 6.1.2; 6.2.0 : 7.4.1; 7.5.7; 10.3.2; 10.3.11 l Bensinger,DuPont and Associates '

l Dickey, John 7.3.17; 10.5.7; 14.2.1 1 Consumers Power Company Dyer, William 7.4.3; 8.3.2; 8.3.4; 8.3.5 Pennsylvania Power & Light Company  ;

Eells, Tom 6.3.11; 10.5.13; 11.6.1 Wisconsin Electric Power Company i Hall, Earl 4.4.3; 7.5.9; 18.5.1 l (privateindividual)

{

Hans, Bob 7.4.1; 15.3.1  !'

Arizona Public Service, Palo Venie Heritage, Dave 10.6.7 Northeast Utilities Hudson, Gary 4.3.3; 4.6.1; 11.3.2  :

Northern States Power Company Knuth, Don 12.2.23; 17.1.1; 17.3.2 KMC Lailheugue, Bob 10.2.8; 10.3.3; 15.3.1; 19.1.4 Louisiana Power & Light Company Lock, Dale 7.4.21  !

Florida Power Corporation

!.ohman, Bob 10.4.7 Combustion Engineering MacDonald, Robert 4.4.3; 7.3.1; 10.3.1; 10.3.6; 10.3.10; 11.3.4: 12.1.1; 14.1.6; international Brotherhood of Electrical Workers 14.2.8; 18.5.1; 19.5.1 Madden, George 4.5.1; 4.6.2: 5.1.1, 5.1.6; 7.4.2; 7.4.3; 10.4.3; 11.3.4; Florida Power & Light Company 15.3.1; 16.2.1; 16.2.7; 16.2.8; 16.2.9; 16.2.13 .

Marcell, Shaun 10.3.4; 10.4.9; 10.5.2; 10.5.10  ;

Abbot Laboratories  !

McCarthy, Raymond 12.5.4; 12.7.14; 13.2.2; 13.2.8; 13.3,1 Public Service Electric & Gas Moeller, Peter 4.5.1; 17.1.1 Public Service Electric & Gas D.1

t L

Commenter's Name/ Affiliation ,_ Section(s) Where Commem(s) Addressed Moore, Mark 4.1.1 TRTR Association Mosher, Bill 10.6.4; 12.5.8; 13.2.2 Consumers Power Company Owen, David 10.4.10; 10.5.6; 10.8.1; 13.1.4 Carolina Power & Light Company Park s, .... .. .... 16.2.5 Unknown Peters, Jeff 13.2.3 Rochester Gas & Electric Phillis, Mark 13.4.8 Bishop, Cook, Purcell, & Reynolds Pucko, Tim 4.5.1 Public Service of New Hampshire Rind, Michael 7.4.1; 7.4.12; 12.7.3; 14.2.3 Baltimore Gas & Electric Company Torrence, Jim 4.1.1; 4.1.2; 6.1.4; 16.2.5 National Bureau of Standards Reactor Vanek, Ron 3.1.3; 3.3.2; 4.3.3; 6.1.1; 6.2.14; 6.2.22; 7.3.1; 9.1.1; 9.2.4; Utility Workers Union 9.2.5; 10.3.13; 12.3.1; 12.3.3; 14.1.2: 14.4.1; 18.1.2; 19.1.4 Vigil, Juan 16.1.5 Nebraska Public Power District Wells, Russ 4.2.2 GPU Nuclear Wesner, Jim 10.1.1; 10.2.8; 12.5.8 Pennsylvania Power & Light Company Wetterhahn, Mark 14.1.8; 14.1.9; 15.2.7; 15.2.10; 17.1.2; 17.2.1 Conner & Wettertuthn Wisniewski, Kathleen 4.4.3; 11.2.4; 11.3.4; 13.1.4; 14.2.1; 14.2.3; 16.2.2; 16.2.3; Florida Power & Light Company 17.3.1; 17.4.1 1

I D-2

l l

l gRg80AM 335 U.S. NUCLE AR REGULATORY COMMIS$10N l 1, PO TN ER '

EEE BIBLIOGRAPHIC DATA SHEET

"~'

2. TITLE AND SUBTITLE NUREG-1354 Fitness for Duty in the Nuclear Power Industry: Responses to Public Comments 3 DATE REPORT PUBLISHED Mon r., . ..

j May 1989 4 FIN OR GRANT NUMBER

?

~

5. AUTHORIS) 6. TYPE OF REPORT Loren L. Bush Technical Brian K. Grimes 7. Pe R OD cOv f rid ,,n,,e..o o,,,,,

November 1988 to April 1989

8. 9 F RMtNG GANlZATl0N - NAME AND ADDR E SS tar Nnc. ooaenu oneen, ornce or neewon, ys Nucuer nepuorem commonuon. ene markne scoren. to contreeser, omne Division of Reactor Inspection and Safeguards Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Washington, D. C. 20555 9 ON OR ORG AN1ZATION - N AME AND ADDR ESS Isr Nac, rvoe some ss ecore~, tr acerencer. oroue nnc oween. O!!se er nogen us meuer nerereram commauen.

Same as above

10. LUPPLEMEnlTARY NOTES

11. ABST R ACT (200 =orm or euf The Nuclear Pegulatory Commission published for public comment a proposed rule concerning the fitness for duty of commercial nuclear power plant workers (53 FR 36795). The proposed rule focused on methods for controlling the use of substances that may affect the trustworthiness and performance of workers. It provides for chemical testing, behavioral observation, employee awareness and education, and employee assistance programs as means for assuring fitness for duty. This report summarizes the comments received on the proposed rule and pro- ,

vides the staff resolutions of the issues raised by the comments. l e

t 11 K E Y WOR DS/DE SCR'PTORS fter eose or a sos.:

n rner .,n asust as easeneer m sorarms rne maore,i iJ. Av A'L A E ' & T Ai t ME N I Alcohol, Alcohol abuse, Alcohol testing, Appeals, Chemical Unlil nit'9d testing, Drugs, Drug abusei Drug testing, Employee assistance ""'"'"*"""'

programs, Fitness for duty, k'oairment, Management actions, "*"'*"I Unclessi fled Nuclear power reactors, ProtecA.in of information, Reporting and recordkeeping requirements, Subsfence abuse. """*'""'"

Unclassified 16 NUMBE R OF PAGES 4.s

1. $_ 16 PR ACE NXC F ORM 336 (2 69)

• U. b. Lun namt h I s>N sh i MG Orr ICL e 199 9441 59'j ,3M79

UNITED STATES .

wicot rouar -ctass acti

NUCLEAR REGULATORY COMMISSION

' '05'^Sj3%Q'5 "'* 3 WASHINGTON, D.C.~ 205G5 -

,,,,,, % . c ., J

[J -

OFFICIAL BUSINESS r' PENALTY FOR PRIVATE USE. $300 j

'.[ 1 l.

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