ML23153A049

PR-MISC. Notice - 51FR27921 - Commission Policy Statement on Fitness-For-Duty of Nuclear Power Plant Personnel

ML23153A049
Person / Time
Issue date:	08/04/1986
From:	NRC/SECY
To:
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PR-MISC. NOTICE, 51FR27921
Download: ML23153A049 (1)

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ADAMS Template: SECY-067 DOCUMENT DATE: 08/04/1986 TITLE: PR-MISC. NOTICE- 51 FR27921 - COMMISSION POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL CASE

REFERENCE:

PR-MISC. NOTICE 51FR27921 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-MISC. NOTICE OPEN ITEM (Y/N) N RULE NAME: COMMISSION POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL PROPOSED RULE FED REG CITE: 51FR27921 PROPOSED RULE PUBLICATION DATE: 08/04/86 NUMBER OF COMMENTS: 10 ORIGINAL DATE FOR COMMENTS: 11/03/86 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 60FR04071 FINAL RULE PUBLICATION DATE: 01/10/95 NOTE$. ON FRN WITHDRAWING POLICY STATEMENT SIGNED BY TAYLOR ON 1/6/95 AND PU STATUS BLISNED ON 1/20/96 AT 60FR04071. SEE ALSO FINAL "FITNESS-FOR-DUTY F RULE PROGRAM" RULE PUBLISHED 6/7/89 AT 54FR24468. FILE LOCATED ON Pl.

TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN REY HISTORY OF THE RULE PART AFFECTED: PR-MISC. NOTICE RULE TITLE: COMMISSION POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL ROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 07/30/86 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 86-153 SRM DATE: 07/07/86 SIGNED BY SECRETARY: 08/04/86 STAFF CONTACTS ON THE RULE CONTACTl: LOREN BUSH MAIL STOP: 346-EWS PHONE: 492-8080 CONTACT2: MAIL STOP: PHONE:

DOCKET NO . PR-MISC . NOTICE (51FR27921)

In the Natter of COMMISSION POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/13/86 08/12/86 COMMENT OF ADVISORY COMMITTEE ON REACTOR SAFEGUARDS (DAVID A. WARD) ( 1) 08/19/86 08/14/86 COMMENT OF E. P. CZUCHNICKI ( 2) 09/03/86 08/27/86 COMMENT OF KENNETH E. NESS ( 3) 10/31/86 10/28/86 COMMENT OF IBEW LOCAL UNION 1245 (JACK MCNALLY) ( 9) 11/03/86 10/31/86 COMMENT OF NUMARC (W.H. OWEN) ( 4) 11/04/86 11/03/86 COMMENT OF APlL, MPlL, NU, SCElG, AND WPPSS (NICHOLAS S. REYNOLDS) ( 5) 11/04/86 11/03/86 COMMENT OF MISSISSIPPI POWER l LIGHT COMPANY (0 . 0. KINGSLEY, JR.) ( 6) 11/06/86 11/03/86 COMMENT OF NORTHEAST UTILITIES (J . F. OPEKA) ( 7) 11/ 10/86 11/03/86 COMMENT OF PUBLIC CITIZEN CRITICAL MASS ENERGY PRJT (JOSHUA GORDON) ( 8) 11/14/86 11/14/86 NOTE TO RECIEPIENTS - MAKING CHANGES ON MISNUMBERED COMMENTS #3 FM NUMARC TO #4; #4 FM MPlL TO #6 ; AND #6 FM NU TO #7 11/19/86 11/17/86 LTR BISHOP, LIBERMAN, COOK, PURCELL l REYNOLDS (REYNOLDS) RE SUBSTITUTION OF COMMENT LffiER DATED 11/3/86 (SEE COMMENT #5) 01/09/87 11/07/86 COMMENT OF SUBCMTE ON ENERGY CONSERVATION AND POWER (CONGRESSMAN EDWARD J . MARKEY) ( 10)

01/10/95 01/06/95 FEDERAL REGISTER NOTICE WITHDRAWING POLICY STATEMENT PUBLISHED AT 60FR4071 ON 1/20/95

Copy to SECY-Original sent to the Office of the Federal Regillllr DOCKET NUMBER PROPOSED RULE _ _

PR ,~c..

for publication ,.

(5\f e.a..'1~~ ,)

[7590-01-P]

NUCLEAR REGULATORY COMMISSION 10 CFR Chapter 1 NRC Policy Statements; Withdrawal ......

AGENCY: Nuclear Regulatory Convnission.

ACTION: Policy statements; Withdrawal.

SUMMARY

The Nuclear Regulatory Convnission (NRC) is withdrawing a number of its Policy Statements which have been superseded by subsequent NRC rulemaking actions. The action taken by the NRC does not change reporting requirements on licensees or reduce the protection of the public health and safety in any

- way.

EFFECTIVE DATE: This action is effective upon publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: A. J. DiPalo, Office of the Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6191.

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SUPPLEMENTARY INFORMATION:

Background

Based on a comprehensive review of its regulations and regulatory guidance, the NRC has decided to withdraw a number of its Policy Statements that have been superseded by subsequent NRC rulemaking actions. This action does not change reporting requirements on licensees or reduce the protection of the public health and safety in any way.

The following Policy Statements have been superseded and are being withdrawn:

1. Nuclear Power Plant Access Authorization Program:

The NRC published a proposed Policy Statement, "Nuclear Power Plant Access Authorization Program," on March 9, 1988 (53 FR 7534). This Policy Statement was never published as a final Policy Statement, however it advocated that each licensee who operates a nuclear power plant establish an

- access authorization program which would ensure that individuals who require unescorted access to protected areas or vital areas of their facilities are trustworthy, reliable, emotionally stable, and would not subvert radiological security. Based on an evaluation of the public comments on the proposed Policy Statement, the NRC determined that , although many licensees had access authorization programs that conformed to the "Industry Guidelines," not all licensees had such programs in place, and of those that did, not all fully incorporated the "Industry Guidelines" into their Physical Security Plan.

Subsequently, the NRC published a final rule, "Access Authorization Program for Nuclear Power Plants," (10 CFR 73.56) on April 25, 1991 2

(56 FR 18997), that would have superseded the above Policy Statement had it been published as a final Policy Statement. This final rule fulfilled the objectives of the proposed Policy Statement by requiring that all licensees authorized to operate a nuclear power plant have a required Access Authorization Program incorporated into their Physical Security Plan.

2. Training and Qualification of Nuclear Power Plant Personnel:

In Section 306 of the Nuclear Waste Policy Act of 1982 {NWPA), Public Law 97-425, the NRC was directed to promulgate regulations, or other appropriate Commission regulatory guidance for the training and qualifications of civilian nuclear power plant operators, supervisors, technicians, and other operating personnel. The NRC published a Policy Statement, "Training and Qualification of Nuclear Power Plant Personnel," March 20, 1985 (50 FR 11147),

to fulfill its responsibility under the Act. The Policy Statement was amended on November 18, 1988 (53 FR 46603). On April 17, 1990, the U.S. Court of Appeals for the District of Columbia Circuit concluded that the Commission's

- Policy Statement did not meet the intent of the Congressional directive to promulgate regulations or other appropriate regulatory guidance. The Commission req~ested a rehearing of the decision by the full Court, which was denied on June 19, 1990. In response to the Court's decision, the NRC published a final rule, "Training and Qualification of Nuclear Power Plant Personnel," (10 CFR 50.120) on April 26, 1993 (58 FR 21904). The final rule fulfilled the objectives of the Policy Statement by establishing requirements and essential elements of the process to determine training and qualification requirements for all appropriate nuclear power reactor personnel.

3

3. Fitness-For-Duty of Nuclear Power Plant Personnel:

The NRC published a Policy Statement, "Fitness-For-Duty of Nuclear Power Plant Personnel," on August 4, 1986 {51 FR 27921). The purpose of this Policy Statement was to encourage the industry to develop and implement its own initiatives, or to adopt those initiat ives of the Edison Electric Institute, to assure that all nuclear power plant personnel with access to vital areas at operating plants are fit for duty. The Co1T111ission deferred rulemaking in this area for a period of 18 months to evaluate licensee

- implementation of these initiatives.

However, based on a dramatic increase in the number of drug use and abuse events since 1985, the NRC published a final rule, "Fitness-for-Duty-Program," {10 CFR Part 26) on June 7, 1989 {54 FR 24468). This rule fulfilled the objectives of the Pol icy Statement by requiring that licensees authorized to construct and operate nuclear power plants implement a Fitness-for-Duty Program intended to create an environment which is free of drugs and the effects of these substances.

4. Maintenance of Nuclear Power Plants:

On Decemtier 8, 1989 {54 FR 50611), the NRC published a Policy Statement, "Maintenance of Nuclear Power Plants," with the purpose of encouraging licensees to enhance safety by improving plant maintenance. The NRC monitored the industry for 18 months and found that convnon maintenance related weaknesses continued to persist in some pl ants. Thus, the NRC published a final rule, "Monitoring the Effectiveness of Maintenance at Nuclear Power Plants," {10 CFR 50.65) on July 10, 1991 {56 FR 31306). This final rule which supersedes the above Policy Statement, will become effective July 10, 1996.

4

Implementation of the rule was postponed unt il that time to provide licensees of the nuclear power plants the opportunity to plan and monitor their maintenance activities in accordance with the requirements of the 1996 rule.

Currently all nuclear power plants have active maintenance programs in place.

Thus NRC does not anticipate that this course of action will have any adverse impact on public health and safety. The final rule fulfi l led the objectives of the Policy Statement by establishing requirements for monitoring and evaluation of plant maintenance activities.

5. Information Flow:

On July 20, 1982 (47 FR 31482), the NRC published a Policy Statement, "Information Flow," with the intent to remind licensees of their responsibility to provide the Convnission with timely, accurate, and sufficiently complete information during an incident or significant event.

Subsequent to issuance for publication of the 1982 Policy Statement, the Convnission published two regulations for reporting of events involving convnercial nuclear power plants: "Invnediate Notification Requirements for Operating Nuclear Power Reactors," 10 CFR 50.72, August 29, 1983, (48 FR 39046); and "L~censee Event Report System," (10 CFR 50.73), July 26, 1983, (48 FR 33858). The former specifically addresses reporting requirements during the course of an event. The Commission also published a regulation (10 CFR 50.9, December 31, 1987 (523 FR 49372)), requiring that information provided to the Commission be compl ete and accurate in all material respects, and that licensees notify the Commission of information having significant implication for public health and safety or common defense and security. In addition, the Convnission published similar regulations regarding reporting of 5

nuclear material events (e.g., 10 CFR 30.50 and 10 CFR 30.9 and 10 CFR 72.74 and 10 CFR 72 . 11). Timely, accurate and complete information continues to be of great importance to the Commission. Rules have been promulgated which fulfill the objectives of the Policy Statement in ensuring timeliness, accuracy, and completeness of the reported information.

6. Planning Basis For Emergency Responses to Nuclear Power Reactor Accidents:

On October 23, 1979 (44 FR 61123), the NRC published a Policy Statement, "Planning Basis for Emergency Responses to Nuclear Power Plant Accidents," to endorse the guidance developed by a joint task force of the NRC and Environmental Protection Agency (EPA) on radiological emergency response plans to be developed by off-site agencies.

After reviewing public comments on the policy statement, information obtained from workshops held on the subject and reports from a Presidential Commission, the NRC published a final rul e, "Emergency Planning," (10 CFR Parts 50 and 70) on August 19, 1980 (45 FR 55402). The final rule fulfilled the objectives of the Policy Statement by upgrading the NRC's emergency 6

planning regulations to assure that adequate protective measures can and will be taken in the event of a radiological emergency.

Dated at Rockville, Maryland, this L day of ~ 1995.

0 For the Nuclear Regulatory Commission.

for Operations.

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, ., J~N -9 p 2 :Q4 Dl-S L ICltART. OHIO GUIii\' SIKORSKI, MINNHOTA AND POWER JOHN D. OINGEU. MICHIGAN IEX OfflCIOI OF THE 811 IAWMIICI ll SIOMAN COMMITTEE ON ENERGY AND COMMERCE CHIU COUNIEL ANO IT-"' DIIIICTOII WASHINGTON, DC 20515 November 7 , 1986 ioc .

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The Honorable Lando w. Zech, Jr.

Chairman C~ ,/l('=/9.zV Cfi)

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chairman:

I a_RRr eci.ate receiving the Commission's policy statement on

. f . i ~ ~ d.Utli, which has the goal of ensuring that nuclear

• • ~rit employees in sensitive positions are not under the influence of alcohol or drugs, or otherwise unfit while performing their duties (51 PR 27921, August 4, 1986). Unfortunately, the policy statement, events surrounding it, and related issues raise serious questions about the Commission's policies related to drug and alcohol abuse. I am concerned that the policy statement provides an insufficient basis for effective regulation, that the policy statement was prepared with improper deference to the nuclear power industry, and that the Commission has not come to grips with the misuse of drug testing programs as a means to retaliate against whistleblowers.

Recent events have caused the Subcommittee to become i ncreasingly concerned about problems with drug and alcohol abuse at nuclear pl ant.it- Commission Preliminary Notification Pl'\,O-g'{-86~~U . s t s, 1986) indicated that on August 4, 1986, tll

• Sacramento county Grand Jury issued a report concluding that

• there was, and may continue to be, a significant problem with drugs and alcohol usage on site at Rancho Seco by contract employees and SMUD employees.* The Grand Jury further reported that it found evidence of drug use during breaks and mealtime on the pl ant site.

The Subcommittee also has received allegations of rampant drug and alcohol abuse at the Seabrook nuclear power plant which has not yet been licensed to operate. By separate letter of this date, the Subcommittee is seeking data from the Commission concerning the drug and alcohol situation at Seabrook and what, if anything, remedial action the Commission has taken.

In addition, the Subcommittee is also investigating recent allegations of widespread drug abuse at the Department of Energy's Savannah River Plant in South Carolina. Although I recognize that the NRC has no regulatory authority over DOE plants, these disturbing reports heighten the Subcommittee's concern about the

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extent of drug and alcohol abuse problems at nuclear power facilities generally.

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U.S. N *r DOC<

OF Pos tM Co pi Add'I C Specia'

Tbe Honorable Lando w. Zech, Jr.

Novembers, 1986 Page 2 In li?ht of these disturbing reports, I am concerned that the Commissions response to the generic problem of drug and alcohol abuse at nuclear reactors is inadequate. Rather than issue regulations, the Commission has withdrawn regulations that it proposed in August 1982, substituted a *policy statement* that references guidelines from the Edison Electric Institute, and tied its own bands by announcing that NRC will not issue rules on this subject for at least 18 months. As Commissioner Asselstine correctly notes, *A rule is enforceable while a policy statement is not.* The NRC staff had earlier warned the Commission in August 1985 that, *rt should be recognized that with a Policy Statement there is not as clear cut a basis for regulatory action as with a rule.* CSECY-85-21B, August 26, 1985)

While the* Commission has authority to investigate a nuclear

-~*accident that might be caused or exacerbated by a worker under the influence of drugs or alcohol, the Commission will not be able to address root causes by correcting deficiencies in utility programs to maintain fitness for duty. Thus, as Commissioner Asselstine comments, wThis policy statement represents a continuation of the reactive *approach to regulation which has so often failed in the past."

Commissioner Asselstine also notes that the EEI guidelines are both vague and voluntary. In addition, by failing to require reports from licensees on their fitness for duty programs, the NRC places on itself the burden for initiating the review of programs.

The circumstances surrounding the developnent of this policy statement, described in the enclosed chronology, are also very disturbing. on Augusts, 1982, the NRC published in the Federal

~1/4ster (47 FR 33980) proposed *Fitness for Duty* regulations.

'Ih July 1984, prior to the publication of a final rule, the Commission instructed its staff to consult with the Institute of Nuclear Power Operations CINPO), and the Nuclear Utility Management and Buman Resources Committee (NOMA.RC), to determine the willingness of these organizations to undertake the development of a detailed progam (51 FR 27873, August 4, 1986).

At a meeting with senior NRC staff, these industry organizations lobbied against the NRC rule, and later stated that they would be willing to develop industry guidance *only under the condition that the NRC nQ.t promulgate the Fitness for Duty rule.*

(SECY-84-348, September 4, 1984). By its actions, the Commission has now knuckled under to this game of industry hardball.

In addition, proposed Commission policy statements were presented to NUMA.RC and INPO for their comments. I understand that these organizations reviewed a draft statement in February 1986, and convinced the NRC staff to delete a requirement for periodic status reports to the agency.*

Tbe Honorable Lando w. Zech, Jr.

November 5, 1986 Page 3 Much of this industry maneuvering was conducted in closed sessions, while a rulemaking on the subject had not reached final resolution. This subverts the concept of rulemaking, which demands that Commission decisions be based on a public record.

The willingness of the Commission to sanction industry efforts behind closed doors to torpedo a regulation is questionable at best. In addition, by caving in to industry pressure to withdraw proposed rules, and by submitting its own policy statement to the industry for approval in advance, the Commission is allowing itself to be regulated by the nuclear industry.

I am also concerned that the Commission has not come to grips with the abuse of drug testing programs as a means to retaliate against whistleblowers, which would prove detrimental to reactor safety. A May 5, 1986 article in the Washington Post (p. Bl) reports that at Georgia Power Company's Vogtle plant, former employees have alleged that the company's mandatory drug testing program has been used to get rid of workers who *cause trouble* by reporting safety defects. At least five employees have filed a complaint with the U.S. Labor Department alleging that after they reported safety and construction problems to the company or the NRC, they were tested for drugs and dismissed. The Commission's policy statement on fitness for duty fails to address this potential abuse of drug testing programs.

In summary, there are three major issues surrounding the Commission's policy statement on fitness for duty. First, workers impaired by drug or alcohol abuse can make errors in operation or construction that compromise reactor safety. However, by issuing a policy statement rather than regulations, the Commission has tied its own hands* in dealing with drug problems at nuclear plants. Second, by allowing the nuclear industry to torpedo proposed regulations and to approve the policy statement in advance, behind closed doors, the Commission has compromised its own effectiveness and independence from the industry. Third, if mandatory drug testing programs are distorted into a method to attack employees who report defects, reactor safety will also suffer. Furthermore, the Commission policy statement does not address the issue of abuse of drug testing programs, and it is not clear that the Commission appreciates its seriousness.

In order to keep the Subcommittee fully informed on all issues surrounding the Commission's policy statement, I request your answers to the enclosed questions no later than November 21, 1986.

Tbe Honorable Lando w. Zech, Jr.

November 5, 1986 Page 4 I also request that a copy of this letter, including the attached questions and chronology, be placed in the public docket as comments on the Commission's Policy Statement on Fitness for Duty.

Sincerely, ep Edward J.

Chairman

Attachment l Questions Regarding NRC's Fitness for Duty Rules

.Qn lUl!9 Abuse z

1. What formal reporting requirements does the Commission have regarding instances of drug or alcohol abuse problems at nuclear power plants in operation or under construction? If no formal reporting requirements exist, how does the Commission learn of such problems?

2. Provide a list of all nuclear plants in operation or under construction for which the Commission has evidence or allegations of drug or alcohol abuse problems in the past five years. In the Commission's opinion, what plants represent the worst problems in this regard?

3. Describe all incidents in the past two years in which an employee impaired by drug or alcohol abuse or otherwise unfit for duty, was suspected of causing or exacerbating a problem which had significance or potential significance for reactor safety.

4. Please provide all staff analyses since January 1, 1982 which address the magnitude of drug abuse problems at individual nuclear power plants in operation or under construction, or tbe,magnitude of the generic problem *

.Qn ~ commission'§ Policy statement:

s. Exactly what is a *Policy Statement,* and what regulatory force does it carry? Please provide the statutory or regulatory basis for this term.

6. In the past two years, how often has the Commission relied on*

policy statements instead of regulations? Please identify each such instance and the Commission's rationale for using a policy statement in each case.

7. Please provide the Commission's position on each of the following issues raised by Commissioner Asselstine's views:

a. When has the Commission carried out enforcement action on a policy statement? Describe each such instance.

b. What is the statu~ory basis for Commission enforcement of a policy statement?

Questions, NRC Fitness for Duty

c. Provide the Commission's response to Commissioner Asselstine's view that *Absent a specific event, it [the policy statement] would not allow us to do much of anything if a licensee simply has not developed or implemented an adequate program.*

d. Are the EEI guidelines for fitness for duty mandatory or optional? If they are optional, how can the Commission enforce them?

8. A July 1, 1985 NRC memorandum from Ben B. Bayes, Director, Office of Investigations, to James M. Taylor, was critical of the EEI guide on fitness for duty:

• 1t is our view that it is of only limited value for establishing an effective fitness for duty program **** It not only fails to provide definitive guidance, but does not speak to certain aspects that we believe are vital to meet the Commission's objectives regarding fitness for duty.n

• [Tlhe EEI Guide, especially viewed as the fruits of a two-year industry initiative, is extremely disappointing and of limited usefulness to the industry as a whole.*

a. Does the latest draft of the EEI Guide satisfy the Office of Investigations?

b. Provide all comments from the Office of Investigation on the EEI Guide subsequent to July 1, 1985.

9. How does the Commission defend its instructions to the NRC staff to meet with nuclear industry representatives concerning the fitness for duty rule during the pendency of the rulemaking proceeding? Please provide copies of any instructions which the Commission gave the staff.

10. In August 1984, NUMA.RC informed the NRC that it would be willing to develop guidance on fitness for duty programs only under the condition that the NRC not promulgate a rule. What role did NUMARC's condition play in the Commission's decision not to promulgate a rule? Please provide all documents containing qomments or reactions by the Commission or staff to NUMARC's position.

11. a. After July S, 1984, how many meetings did the NRC staff hold with INPO, NUMARC, or other industry representatives on fitness for duty issues?

b. Bow many of these meetings were conducted in public?

c. After July 5, 1984, how many other discussions (for example, telephone conversations) did NRC staff members hold with industry representatives on fitness for duty issues?

d. Bow many of these discussions were conducted in public?

Questions, NRC Fitness for Duty

e. What records of the NRC staff's meetings and discussions with INPO, NOMARC, or other industry representatives have been placed in the public docket on the fitness for duty rulemaking?

12. Provide all records of meetings or discussions between NRC staff and INPO, NOMARC, or other industry representatives since August 1982 on issues related to fitness for duty, which have not been placed in the public docket for rulemaking. These records should include but not be limited to transcripts, minutes and internal memos.

13. In what other instances in the past five years did Commission staff participate in closed meetings with industry representatives to discuss issues on which a Commission rulemaking was in progress? Describe each such rulemaking where this occurred *

.Qn .t.11§ Abuses .Qi ru,gg Testings

14. Please provide a list of all nuclear plants in operation or under construction for which in the past two years the NRC has received information or allegations that drug:testing programs have been misused as a method of retaliating against whistleblowers. In the Commission's opinion, what plants have the worst records in this regard?

15. Beyond its general regulations protecting wbistleblowers, what specific instructions does the Commission provide to licensees to prevent drug testing programs from being distorted into methods of retaliating against employees who report safety problems?

Attachment 2 Chronology of NRC Fitness for Duty Rules August 5, 1982. NRC proposed a rule on Fitness for Duty in the Federal Register. The proposed rule required that licensees establish, document, and implement adequate written procedures designed to ensure that, while on duty, personnel with access to protected areas in commercial nuclear power plants are not under the influence of alcohol or other drugs or otherwise unfit for duty. (47 FR 33980, August S, 1982)

July 5, .1984. The Commission approved publication of a final rule on Fitness for Duty. However, the Commission asked that prior to publishing the rule, NRC staff explore with the Institute of Nuclear Power Operations (INPO) and the Nuclear Utility Management and Buman Resources Committee (NUMA.RC) *their willingness to undertake the development of detailed program elements and acceptance criteria for a fitness for duty program.* (Source: 51 FR 27873, August 4, 1986)

• August 22, 1984. Senior officials of the NRC, NOMARC, and INPO met to discuss the fitness *for duty rulemaking. *At that meeting, the industry representatives stated their belief that any rulemaking or other form of mandatory requirement undermines the voluntary efforts of the industry toward self improvement.* On August 29, NUMA.RC informed the NRC's Executive Director for Operations that NUMARC would be willing to develop guidance only under the condition that the NRC not publish *a rule. *They want the NRC to promulgate a Policy Statement or Generic Letter regarding fitness for duty which would not establish enforceable requirements.* (Source: u.s. NRC, SECY-84-348, September 4, 1984)

October 23, 1984. The Commission detetmined that it will not issue a final rule but will defer activity for a minimum of two years. In response to the Commission's direction, the staff prepared a draft Policy Statement and transmitted it t;o NUMARC for

• review and comment.* (Source: U.S. NRC, SECY 85-21, January 17, 1985)

December 10, 1984. NUMA.RC met with NRC staff to discuss the draft policy statement. In early 1985, the staff again discussed the Policy Statement with representatives of NUMARC and INPO. (Ibid.)

January 10, 1985. NUMA.RC agreed to a draft policy statement, which NRC staff forwarded to the Commissioners, recommending approval, on January 17, 1985. (Ibid.)

June 3, 1985. NRC staff advised the Commission by memorandum that the staff was having discussions with NUMA.RC and INPO in view of drug-related problems at the Palo Verde nuclear plant, and requested that the Commission delay further action on fitness for duty pending additional staff work. (Sources u.s. NRC, SECY-85-21B, August 26, 1985)

Chronology, NRC Fitness for Duty Rules August 26, 1985. After further consultation with industry representatives over a guide prepared by the Edison Electric Institute (EEI), the NRC staff forwarded to the Commissioners a revised draft policy statement, recommending approval. In its memo to the Commissioners, the staff also noted two key pointsz

• <1> It should be recognized that with a Policy Statement there is not as clear cut a basis for regulatory action as with a rule.

(2) It should be noted that the staff's limited oversight role and the lack of detailed program requirements in the EEI guidance are such that the staff will not necessarily be in a position to have specific information or a basis for high confidence in the adequacy of fitness for duty programs at specific sites.*

(Ibid.)

The staff memo to Commissioners enclosed comments from the NRC Office of Investigations, which criticized the EEI guides *rt is our view that it is of only limited value for establishing an effective fitness for duty program **** It not only fails to provide definitive guidance, but does not speak to certain aspects that we believe are vital to meet the commission's objectives regarding fitness for duty.*

• [Tlbe EEI Guide, especially viewed as the fruits of a two-year industry initiative, is extremely disappointing and of limited usefulness to the industry as a whole.* Co.s. NRC, Memorandum from Ben B. Bayes to James M. Taylor, July 1, 1985, Enclosure 4 to Ibid.)

August 4, 1986. The Commission withdrew its proposed rule on Fitness for Duty (51 FR 27872). In its place, the Commission issued a Policy Statement and invited public comments by November 3, 1986 (51 FR 27921).

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BISHOP, LI BERMAN, COOK , PURCE LL & REYNO L KEfE 1200 SEVENTEENTH STREET, N. w. US tlRC WASHINGTON, D. C. 20036 (202) 8S7-9800

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(212 ) 704 - 0100 TELEX 222767 November 17, 1986 WRITER ' S DIRECT DIAL

( 202)

Secretary of the Commission U. S. Nuclear Regulatory Commission Washington , D.C. 20555 Attention : Docketing and Service Branch Re: Policy Statement on F i tness for Duty of Nuclear Power Plant Personne l

Dear Sir:

Enclosed herewith for docketing, in subst i tution for our comment letter dated November 3, 1986, i s a slightly rev i sed version dated November 17, 1986 which reflects ( i n footnote l) the joining of Texas Utilities Generating Company in the comments .

Si ncer cc: Mr. Loren Bush Operating Reactors Program Branch Office of Inspection and Enforcemen t

U. S. NtJCl~,',R PEGIJI ATCltY COMMlSSICli DOCKC ,.. """ ,,,..~ SE°CTIOH 0 TARY

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LAW OFFICES OF B I SHOP, LIBE R MAN, COOK, PURCELL & REYNO L DS 1200 SEVENTEENTH STREET, N . W .

WASHINGTON, D . C . 20036

( 202) 857-9800 IN NEW Y ORK TELEX 440574 INTLAW UI BISHOP, LIBERMAN & COOK TELECOPIER ( 202 \ 857 - 9846 November 17, 1986 1155 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036 (212 ) 704 - 0100 TELEX 222767 Secretary of the Commission WRITER ' S DIRECT DIAL U.S. Nuclear Regulatory Commission ( 202 )

Washington, D.C . 20555 Attention: Docketing and Service Branch Re: Policy Statement on Fi tness for Duty of Nuclear Power Plant Personnel

Dear Sir:

On beha l f of the power reactor licensees and app l icants identified below, the following comments are submitted in response to the Commission ' s issuance on August 4, 1986, of a Policy Statement concerning fitness for duty of nuclear power plant personnel . ! / See 51 Fed. Reg. 27921 e t ~ - (1986).~/ The Commission has invited public comments on this new policy.

First, we commend the Commission's decision to defer the promulgation of an NRC regulation on fitness for duty in recogn i tion of the nuclear industry's successful efforts to address the problem of drug and a l cohol abuse on the job. As the Commission recognizes, power plant l icensees have made considerable progress during the past several years in crea t ing and implement i ng fitness for d ut y programs for their personnel, due largely to the efforts of the Nuc l ear Uti lit y Managemen t and Resources Committee (NUMARC), the Inst i t ut e for Nuc l ear Power Operations ( I NPO), and t he Ed i son El ectr i c I ns t i t ute

!/ The licensees and applicants are: Arkansas Power & Li g h t Co., Mississippi Power & Light Co., Nor t heas t Ut ili t i es, South Carolina Electric & Gas Co., Texas Ut il it i es Generat i ng Company and Washington Public Power Supply System.

~/ A separate Federal Reg i ster not i ce was a l so publ i s h ed on August 4, 1986 withdrawing the proposed fi t ness for duty ru l e which had been issued in 1982 (47 Fed. Reg. 33980). See 51 Fed. Reg. 278 7 2. -

(EEI) . As early a s January 31 , 1985, NUMARC reported to the Commission that all nuclear utilities had voluntarily established some type of fitness for duty program .

Allowing power reactor licensees to establish appropriate restrictions on , and penalties for, the use of alcohol and drugs within protected areas at their plant sites will provide a more effective , more appropriate and much less burdensome way of dealing with drug and alcohol abuse than the imposition of a generic NRC regulation . In view of the nuclear industry's demonstrated willingness and ability to deal with this problem in the absence of any NRC requireme nt, we believe that the imposition of a Commission regulation would be redundant . Such a regulatory effort would require unnecessary expenditures of time and resources on the part of both the NRC Staff and nuclear utilities , both of whom are already heavily burdened with other, more pressing obligations. In addition, the imposition of a regulatory framework upon existing utility efforts to establish fitness for duty programs would be interpreted as a lack of trust on the part of the Commission, and would likely have an adverse effect upon the morale of nuclear utility licensees, many of whom feel beleaguered by the perception of public distrust of the industry .

Given the success to date of those fitness for duty programs voluntarily undertaken by nuclear utilities, the non-prescriptive approach which the Policy Statement adopts toward the content of such programs is particularly appropriate. The Commission's "expectations" regarding licensee programs and its checklist of "essential elements for such programs (see 51 Fed . Reg. at 27922 , col. 1) appear reasonable , assuming that licensees are to be afforded discretion in interpreting these broadly-worded guidelines . For example, licensees should be allowed to determine whether an employee is "under the influence" of any substance , and whether such substance "adversely affects their ability to perform their duties in any way related to safety."

The judgment of licensee management as to what measures constitute effective monitoring and testing procedures" should also be afforded deference.

We believe that the principal flaw of this new Policy Statement is its non-applicability to NRC personnel, despite the fact that NRC resident inspectors , regional and headquarters personnel and NRC contractors are routinely permitted unescorted access to vital plant areas . While these NRC employees are no more likely than licensee employees to be "unfit for duty" because of drug or alcohol abuse, refusing to allow licensees to monitor such individuals in the same manner that they monitor their own employees necessarily leaves a gap in the coverage of that licensee's fitness for duty program. Such inequitable treatment could also create resentment and

poor morale among licensee employees, who might (with some justification) feel that they were not trusted as much as NRC employees .

In this regard, we understand that the NRC Staff has presented for Commission approval a paper which proposes a fitness for duty program for NRC employees . The proposal contains , among other things, a recommendation that the Commission establish a drug screening program that would include drug testing of all NRC employees "for cause" and random testing of those employees who hold sensitive positions involving national security and/or who require unescorted access to vital areas of nuclear facilities . We recommend that the Commission seriously consider adoption of such an intern 1 policy.l/

- /I Nichola\s ll Such a policy could become a part of the Commission's efforts to address Executive Order 12564 of September 15, 1986, in which the President mandated a "drug-free Federal workplace" .

51 Fed. Reg . 32889.

JAC~ McNALLY, Business Man JOCt([T B.UL& P'R*-Mi~

' N(ffiu..,

• I...L. HOWARD STIEFER, President (st F~ ~ 79.1,/ @)

IBEW LOCAL UNION 1245 Doclf.

usN%fto INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFi?5c~T

.1, p P.O. Box 4790, Walnut Creek, CA 94596 (3063 Citrus Circle) * (415) 93~Q 2 *"22 Ooclf/-

October 28, 1986 Mr. Samuel J. Chilk, Secretary United States Nuclear Regulatory Commission 1717 "H" Street, N. W., Room 1121 Washington, D. C. 20555 RE: Personnel with Unescorted Access to Protected Areas:

Fitness for Duty, 51 Federal Register 27872 (August 4, 1986)

Dear Secretary Chilk:

Local 1245 of the International Brotherhood of Electrical Workers, AFL-C IO, submits the following comments in response to the Commission's withdrawal of a proposed rule published in the Federal Register on August 5, 1982, concerning the fitness for duty of personnel with unescorted access to protected areas of nuclear power plants. Local 1245 of the I BEW represents for collective bargaining purposes the employees of the Pacific Gas and Electric Company's Diab lo Canyon Nuclear Power Plant and the Sacramento Municipal Utility District's Rancho Seco Power Plant.

Fundamentally, Local 1245 believes that any guidelines for fitness-for-duty policies at nuclear plants should encourage nuclear power plant operators to focus on an employee's fitness for duty and not substitute medically insignificant results of blood or urine screenings for sound and p rofessional medical judgement as to an employee's fitness for duty.

Any rule-making effort involving the issue of fitness for duty must take into account two policy considerations - national labor law policy and the dignity and privacy of employees.

First, the subjects of fitness for duty and drug testing are mandatory subjects of bargaining under the National Labor Relations Act, meaning that unilateral changes in these areas a re prohibited by law. Fitness-for-duty or drug-testing rules, then, must be negotiated in good faith.

Second, the privacy issue is one which may not be ignored. The taking of urine for drug screening is indisputably invasive, degrading, humiliating, and embarrassing. The use of random screening adds to this the odious reversal of what we understand to be the American way of doing things by requiring individuals to prove their innocence.

MOV 3 1986 Atknowtedged by card . . ...., ... ,-.. .,,.........._,

LJ. S. NU LE T( t ( (J 'MlS ION

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Samuel J. Chilk October 28, 1986 Page Two Given the negatives inherent in drug testing, we believe that the examination of the possible benefits of drug testing must be thorough and critical.

Scope of the Problem In approaching the issue of fitness for duty, we believe that it is important for the Commission to attempt to put the issue of drug and alcohol abuse into perspective and to attempt to evaluate the issue free from the politically-motivated frenzy which surrounds and presently permeates any discussion of the issue.

While it would certainly appear that drug and alcohol use and abuse is a serious national problem, the full extent of alcohol and drug use and abuse at the worksite has not been well-documented. We are confident that the workforce at nuclear power plants is constantly aware of the dire consequences of human error and that nuclear power plants are the most drug-free and alcohol-free worksites in the United States.

Drug Testing The Commission has made no secret of its belief that random urine testing of nuclear power plant employees is an appropriate response to the national problem of drug and alcohol us*e and abuse. We respectfully disagree.

Assuming that the urine screening is reliable (see comments below on laboratory reliability), a positive assay indicates only that the individual inhaled, injected, or ,ingested a drug at some prior -time. A positive assay does not indicate whether the individual is currently subject to any physiological or psychological effects of a drug, whether the individual's job performance is presently impaired, intoxication, frequency or pattern of use, new usage, when the drug was us*ed, the dosage or purity of the drug, or whether the subject is a casual or chronic user.

What may be assumed from the fact of prior usage? There is no documented scientific evidence that the use of drugs (other than alcohol) off duty causes significant adverse effects on the safety or performance of workers*. If drug assay results are used by a physician in conjunction with a neurological examination and supportable objective facts concerning the employee's behavior or work performance, the results can serve at best as an indicator or predictor for the physician.

Absent the neurological examination, the reports of job performance and behavior, and a professional medica l evaluation, drug test results are meaningless.

Samuel J. Chilk October 28, 1986 Page Three Laboratory Reliability Although drug testing through urinalysis can be highly reliable, studies conducted by the Center for Disease Control and the American College of Pathologists demonstrate the breadth and depth of the problem of laboratory unreliability.

We believe that the need for reliability I both with respect to true negatives and true positives, warrants the Commission's consideration.

Minimum guidelines should be adopted covering the training and certification of laboratory personnel, laboratory quality assurance programs, and the confirmation of all presumptive positives with a second assay based on a different methodology, for any laboratories performing assays on urine or blood samples given by employees of nuclear power plants.

Fitness for Duty We thus believe that the interests of the public, the industry, and the workforce would be best served if the Commission were to encourage nuclear utilities to focus their efforts on an employee's fitness for duty as determined by a medical professional.

Incident-driven drug testing may be appropriate after an accident or supervisorial observation, but there is no substitute for competent medical evaluation and diagnosis, the procedure which we have used successfully at Diab lo Canyon.

The importance of education cannot be over-estimated. Since 1965, the percentage of Americans who habitually smoke cigarettes has decreased from 43% to 32%. Those who have studied the decrease attribute it to public education, and it certainly may not be attributed to random testing or employer sanctions.

In closing, while we suspect that we understand the legal reasons which would seem to have led the Commission to believe that indirect pressure on nuclear utilities is preferable to direct rule-making by the Commission, we believe that forthright direction and guidance is in the best interest of all concerned. The public, the industry, and the nuclear workforce will all benefit from agreements reached through collective bargaining with the benefit of enlightened guidance from the Commission. This issue is simply too important for any other approach.

Very truly yours,

~~Business Manager JM/fz

November 14, 1986 NOTE TO RECEIPIENTS - Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel (51 FR Please make the following changes to miscoded comments:

Comment No. 3 fm NUMARC (W.H. Owen) to Comment No. 4 Comment No. 4 fm Mississippi Power & Light Company (Kingsley) to Comment No. 6: and Comment No. 6 fm Northeast Utilities (J.F. Opeka) to Comment No. 7 Sorry for any inconvience.

Docketing and Service Branch Office of the Secretary of the Commission

OOC:KETrn USNRC Buyers Up Congress Watch Critical Mass Health Research Group Litigation Group Tax'§S>UPNOV O Pl2 :2a 1

OfFIC .

November 3, 1986 l'OCK TIN(j ,l ft I Cf BRANC Secretary of the Commission Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch RE: Comments on Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel We are writing to comment on the Nuclear Regulatory Commission's proposed policy statement on fitness for duty of nuclear power plant personnel as published in the August 4, 1986 Federal Register.

We are pleased that the Nuclear Regulatory Commission is making some effort to address the drug abuse problem as it pertains to nuclear power. However, we disagree with the NRC's decision to issue only a policy statement rather than a rule.

Without a rule, the Commission can not mandate data collection.

Reliable statistics are necessary to properly assess fitness for duty programs, and the programs must be assessed in order to note and enforce any violations. Lastly, we deplore the NRC's failure to establish program criteria and its decision to instead turn over the development of such criteria to private industry groups.

Since 1980, and projected to the end of 1985, the NRC has recorded 104 drug abuse events. (Because of incomplete records, final numbers for 1985 are not available.) Moreover, the number of drug abuse events is increasing. From 1980 to 1981 the number almost tripled, and by the end of 1984 it had increased more than five-fold. In just three years, since 1982, the recorded number of drug-related events occurring each year has nearly doubled.

The consequences of a nuclear accident could be catastrophic. Most nuclear accidents, according to the NRC's own statements, are caused by human error, and drug abuse can only accentuate this tendency. Hence, we we lc ome substantive efforts the NRC makes to reduce the likelihood of a drug-related nuclear accident.

215 Pennsylvania Ave. SE Washington, DC 20003 (202) 546-4996

...... ov 17 1986

~knowledged by card . .-.. *" *******,** *_. -

0. S. NUtL~AR REl.A'tORY COM rs5 CKETI G & <:f~VICE SECTION 0 ""lF ~ SECRET ARY 1 \1 5SION Postm

The proposed policy statement, however, falls far short of solving the drug abuse problem at nuclear power plants. The NRC should issue a rule, not a policy statement. A rule is enforceable, while a policy statement is not.

According to NRC lawyers, [Inside NRC, Oct. 28, 1985, p. 8]

in order for the NRC to require that utilities provide the Commission with information on their fitness for duty programs, there would have to be a rule.

Currently there are few accurate records on drug abuse at nuclear power plants. The Commission's only publicly available evidence of drug abuse is contained in a catch-all document which lists a variety of types of safeguards events. Further, the drug-related events are gleaned from a variety of unreliable sources, and reporting is voluntary.

e In order to properly assess utility fitness for duty programs, there must be an accurate, comprehensive and consistent system of reporting drug abuse events at nuclear power plants.

The Commission must be able to evaluate if the number and severity of drug-related events is increasing, decreasing, or remaining constant. Without such a system, the NRC will not be able to determine whether utility programs are working.

Without provisions for assessment, a fitness for duty program can not be enforced. The Commission can not tell if the number or severity of drug-related events is increasing or decreasing, nor can it compare one utility program to another.

The NRC is responsible for ensuring that nuclear utilities are meeting its fitness for duty standards. By issuing a policy statement rather than a rule however, assessment, and therefore a enforcement of standards is impossible. The NRC is therefore

• compromising its ability to protect the public's health and safety.

In addition, the policy statement fails to specify criteria against which to assess utility fitness for duty programs.

While the NRC has given the nuclear industry an 18-month grace period in which to establish fitness for duty programs, it has not yet provided the utilities any detailed guidance on what constitutes an adequate program. The policy statement provides guidance in only the broadest terms and gives no specific recommendations or standards.

This poses three problems:

1. The utilities and the NRC lack a common understanding of what a fitness for duty program should accomplish nor how it might be implemented.

2. By establishing criteria after fitness for duty programs have been developed or instituted, the Commission will have a difficult time evaluating them. It is likely that the NRC's 2

standards will reflect utility programs rather than the other way around.

3. The NRC will have no grounds for enforcing its belatedly-developed standards because utilities will be able to claim that they were given no guidance by which to measure the suecess of their programs.

Moreover, the NRC has given the Institute for Nuclear Power Operations (INPO), a self-styled nuclear power safety organization composed of nuclear utility executives, the responsibility for developing fitness for duty criteria. Because of the NRC's agreements with INPO under which INPO's documents are not available to the public, the development of fitness criteria will take place with no public input. The NRC is therefore allowing the industry to regulate itself, diminishing the NRC's crucial role in nuclear power safety.

Overall, by not requiring utilities to report drug-related events, the NRC can not evaluate utility fitness for duty programs. Effective enforcement, therefore, is impossible.

Rather than instituting an inherently unworkable policy statement, the NRC should promulgate an adequate fitness for duty rule. Such a rule would provide guidance for utilities in setting up their fitness for duty programs. The rule should spell out the NRC's view of the extent of the drug problem and how utilities should address it.

Such a rule should provide clear goals for fitness for duty programs and should let utilities know what types of programs are acceptable for meeting those goals. Participation in fitness for duty programs should be made mandatory for all nuclear utilities, rather than voluntary as the policy statement leaves it.

Further, a workable fitness for duty rule should provide for comprehensive, accurate, and consistent reporting of drug-related incidents. The NRC should be able to learn from such a reporting system such things as:

a the number of drug tests which have been administered; a how many of these tests registered positive, negative, or inconclusive results; a the number of people who have been terminated for drug-related reasons; a the number of people who have successfully completed drug rehabilitation programs and returned to their jobs; a and the job descriptions of people who were rehabilitated or were terminiated for drug use.

3

Such a reporting system would have to be mandatory and the records would have to be accessible to the public (subject, of course, to provisions that protect the privacy of individuals).

Moreover, a rule should include provisions for inspection, and evaluation of fitness for duty programs and enforcement procedures to correct inadequate programs. The rule should set up a regular program of inspection so that the NRC can monitor utility fitness for duty programs, and should specify criteria against which utility fitness for duty programs will be measured.

Specific enforcement measures should be spelled out in the rule for programs that do not measure up. Lastly, the NRC should suggest procedures for fixing fitness for duty programs that it deems inadequate.

It is clear that the nuclear industry has failed to a institute adequate fitness for duty measures in the past, and

.., there is no reason to believe it will do so now, on its own. If the industry were serious about drug abuse, it would have instituted industry-wide fitness for duty programs in the four years that have passed since the NRC first proposed a fitness for duty rule. The number of drug-related events has almost doubled since that time.

There is little reason to expect that the industry -- which the policy statement leaves self-regulating in this area -- will bring about sharp reductions in drug abuse at nuclear power plants under the proposed policy statement.

In sum, the fitness for duty policy statement, as proposed, is inadequate to the task of reducing drug abuse at nuclear power plants. The policy statement doesn ' t provide for reliable data collection, rendering the policy statement unenforceable. The A NRC should institute a fitness for duty rule that provides clear

• guidance and criteria for successful fitness for duty programs and will make drug abuse at nuclear power plants a thing of the past.

-SubG: b:

Joshua Gordon Nuclear Analyst Public Citizen's Critical Mass Energy Project 4

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NORTHEAST UTILfflES (5'!F£ TH£ CONNECTICUT LIGHT AND l'OWElil COW'ANY

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• Selden Street, Berllrr Connecticut U(f([ p*,-.,

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HOI..YOKE WATER POWER COMPANY NOATHEAST UTIUTlf.l SERVICE COMPANY NORTHEAST JrftJQ.EAR ENEAGY COMPANY P.O. BOX 270 USN HARTFORD, CONNECTICUT~141-0270 (203) 665-5000.86' Nov --6 A11 :49 A.Hy V/Cf.

November 3, 1986 Docket Nos. 50-213 50-245 50-336 50-423 B12316 Secretary of the Commission Attn: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gentlemen:

Haddam Neck Plant Millstone Nuclear Power Station, Unit Nos. 1, 2 and 3 Comments on the Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel

(.51 Fed. Reg. 27921 August 4, 1986)

On August 4, 1986, the captioned Policy Statement was published in the Federal Register inviting comments on the Commission's policy on Fitness for Duty and a description of how that policy will help ensure the health and safety of the public. In this regard, Northeast Utilities (NU), on behalf of the Haddam Neck Plant and Millstone Unit Nos. 1, 2, and 3, is hereby providing these brief comments on the policy statement.

NU agrees with and intends to abide by the Commission's Policy Statement, which recognizes and further encourages the initiatives concerning fitness for duty being taken by the nuclear power industry, the Nuclear Utility Management and Human Resources Committee (NUMARC), and the Institute of Nuclear Power Operations (INPO). We are firmly committed to the implementation of our policies relating to fitness for duty, using the guidance of the Edison Electric Institute's (EEi) "EEi Guide to Effective Drug and Alcohol/Fitness for Duty Policy Development." We continue to believe that it is prudent to defer any new rulemaking in this area for at least the 18-month period from the issuance of the Policy Statement, to allow utilities the opportunity for self-improvement.

NU believes that any future contemplated rulemaking relating to fitness for duty should take into consideration any and all legal implications which may complicate the process of complying with the intent of such rulemaking.

U.S; NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE SE.CTION

We appreciate this opportunity to provide you with our views. If you have any questions on this issue, please feel free to contact my staff.

Very truly yours, CONNECTICUT YANKEE ATOMIC POWER COMPANY NORTHEAST NUCLEAR ENERGY COMPANY Senior Vice President

.86 NOV , . Pl2 :27

0. D. KINGSLEY, JR.

VICE PRESIDENT

• NUCLEAR OPERATIONS OFF ICE * "" '

U.S. Nuclear Regulatory Corrmission OOC ETINli A. f'VICf Office of Nuclear Reactor Regulation iiRANCI-!

Washington, D. C. 20555 Attention: Docketing and Service Section

SUBJECT:

Grand Gulf Nuclear Station Unit 1 Docket No. 50-416 License No. NPF-29 Comments on Fitness for Duty Policy AECM-86/0343 Federal Register notice 11 Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel 11 (Page 27921) dated August 4, 1986 (Vol. 51, No. 149) requested pub l ic comment on the policy statement. Mississippi Power

& Light Company (MP&L) is providing comments by way of this letter.

MP&L endorses the published statement on fitness for duty. The nuclear industry has worked diligently to address this crucial issue and the published policy statement recognizes the progress that has been achieved and stresses the importance of the industry's initiatives and efforts.

An important aspect of the policy statement is that it allows utilities the flexibility necessary to develop effective fitness for duty policies for their own use, while providing the NRC with the necessary overview to monitor activities and results. This non-prescriptive approach will be much more effective than the originally proposed rulemaking and will allow utilities to address their unique situations while continuing to improve their overall fitness for duty programs.

MP&L is confident that this policy statement will be viewed as an endorsement of the industry's initiatives and that utilities will continue their efforts to improve their fitness for duty programs within the framework of the published policy statement. Positive results in this area will confirm the credibility of this approach to regulation in the nuclear industry.

If we may be of further assistance , please do not hesitate to contact us.

ODK:rg cc: See next page Jl2AECM86103001 _ 1 Member Middle South Utilities System

lJ. S. N\.)CtEAR REGULATOR.'f COMM1SS DOCKETING & f"VICE SECTION OFFICE ( I Ht St:CRET ARY Of r1-1c .::0MM 1ss 10N Postmark Dal Copies Rr>cc

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AECM-86/0343 Page 2 cc: Mr. T. H. Cloninger Mr. R. B. McGehee Mr. N. S. Reynolds Mr. H. L. Thomas Mr. R. C. Butcher Mr. James M. Taylor, Director Office of Inspection & Enforcement U.S. Nuclear Regulatory ColTITlission Washington, D. C. 20555 Dr. J. Nelson Grace, Regional Administrator U.S. Nuclear Regulatory Commission Region II 101 Marietta St., N. W., Suite 2900 Atlanta, Georgia 30323 J12AECM86103001 - 2

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( 202) 857 - 9800 TELEX 440574 I NT LAW UI November 3, 1986 BI SHOP, LIBERMAN & COOK TELECOPIER ( 202 ) 857 9846 C,ff lt,:: tl!ISJWEN UE,'qFVTH E AMERICAS DOCK ETlt_il,i,

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• N BRA"N*c~RK, - YORK 10036 (212 ) 704 - 0100 TELEX 222767 Secretary of the Commission U.S. Nuclear Regulatory Commission WRITER ' S DIRECT DIAL Washington, D.C. 20555 (2 02 )

Attention: Docketing and Service Branch Re: Policy Statement on Fitness for Duty of Nuclear Power Plant Pe r sonnel

Dear Sir:

On behalf of the power reactor licensees and applicants identified below, the following comments are submitted in response to the Commission's issuance on August 4, 1986, of a Policy Statement concerning fitness for duty of nuclear power plant personnel.! / See 51 Fed. Reg. 27921 e t ~ - (1986). 2/

The Commission has invTted public comments on tliTs new poli cy.

First, we commend the Commiss i on's decision to defer the promulgation of an NRC regulation on fitness for duty in recognition of the nuclear industry's successful efforts to address the problem of drug and alcohol abuse on the job. As the Commission recognizes, power plant licensees have made considerable progress during the past several years in creating and implementing fitness for duty programs for their personnel, due largely to the efforts of the Nuclear Utility Management and Resources Committee (NUMARC), the Institute for Nuclear Power Operations (INPO), and the Edison Electric Institute (EEI). As early as January 31, 1985, NUMARC reported to the

.! / The licensees and applicants are: Ar kansas Power & Light Co., Mississippi Power & Light Co., Northeast Utilities, South Carol i na El ectric & Gas Co., and Washington Publ i c Power Supply System.

A separate Federal Register notic e was a l so publis hed on August 4, 1986 withdrawing t he p ropo s e d fit nes s f o r du ty rule which had been is s ue d i n 198 2 (47 Fe d. Re g. 33 980 ) .

See 51 Fed. Reg. 278 72.

~ S. NUCLEAR REGUtATORY d?~MI~ ION OOCKETING & SERVICE stCTION OFFICE OF THE SECRETARY OF THE COMMI ~ION I

s,.:* I 1>i r 11 1

Commission that all nuclear utilities had voluntarily established some type of fitness for duty program.

Allowing power reactor licensees to establish appropriate restrictions on, and penalties for, the use of alcohol and drugs within protected areas at their plant sites will provide a more effective, more appropriate and much less burdensome way of dealing with drug and alcohol abuse than the imposition of a generic NRC regulation. In view of the nuclear industry's demonstrated willingness and ability to deal with this problem in the absence of any NRC requirement, we believe that the imposition of a Commission regulation would be redundant. Such a regulatory effort would require unnecessary expenditures of time and resources on the part of both the NRC Staff and nuclear utilities, both of whom are already heavily burdened with other, more pressing obligations. In addition, the imposition of a regulatory framework upon existing utility efforts to establish fitness for duty programs would be interpreted as a lack of trust on the part of the Commission, and would likely have an adverse effect upon the morale of nuclear utility licensees, many of whom feel beleaguered by the perception of public distrust of the industry.

Given the success to date of those fitness for duty programs voluntarily undertaken by nuclear utilities, the non-prescriptive approach which the Policy Statement adopts toward the content of such programs is particularly appropriate. The Commission's "expectations" regarding licensee programs and its checklist of "essential elements" for such programs (see 51 Fed. Reg. at 27922, col. 1) appear reasonable, assuming that licensees are to be afforded discretion in interpreting these broadly-worded guidelines. For example, licensees should be allowed to determine whether an employee is "under the influence" of any substance, and whether such substance "adversely affects their ability to perform their duties in any way related to safety." The judgment of licensee management as to what measures constitute "effective monitoring and testing procedures" should also be afforded deference.

We believe that the principal flaw of this new Policy Statement is its non-applicability to NRC personnel, despite the fact that NRC resident inspectors, regional and headquarters personnel and NRC contractors are routinely permitted unescorted access to vital plant areas. While these NRC employees are no more likely than licensee employees to be "unfit for duty" because of drug or alcohol abuse, refusing to allow licensees to monitor such individuals in the same manner that they monitor their own employees necessarily leaves a gap

in the coverage of that licensee's fitness for duty program.

Such inequitable treatment could also create resentment and poor morale among licensee employees, who might (with some justification) feel that they were not trusted as much as NRC employees.

In this regard, we understand that the NRC Staff has presented for Commission approval a paper which proposes a fitness for duty program for NRC employees. The proposal contains, among other things, a recommendation that the Commission establish a drug screening program that would include drug testing of all NRC employees "for cause" and random testing of those employees who hold sensitive positions involving national security and/or who require unescorted access to vital areas of nuclear facilities. We recommend that the Commission seriously consider adoption of such an internal policy.ii Sincere y, Such a policy could become a part of the Commission's efforts to address Executive Order 12564 of Septembe r 15, 1986, in which the President mandated a "drug- free Fe deral workplace". 51 Fed. Reg. 32889.

P.O. Box 724928 Atlanta, Ga. 30339 P.O. Box 33189 Charlotte, N .C. 28242 NUCLEAR UTILITY MANAGEMENT AND RESOURCES COMMITTEE DOU<[Tf[,

l)NRC .

"86 NOV -3 pl :11 ffl ;; ' AHY DOCK NL .t SE ltV/Cf October 31, 1986 BRANl'H

• Mr. Samuel J. Chilk Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch

Dear Mr. Chi1 k:

Federal Register notice "Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel" (Page 27921) dated Monday, August 4, 1986 (Vol.

51, No. 149) requested public comment on the policy statement. The following comments are forwarded from the Nuclear Utility Management and Resources Committee (NUMARC) in response to the Federal Register entry.

NUMARC strongly endorses the published "Commission Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel." Throughout 1984, 1985 and 1986, NUMARC has worked with the NRC to address this important fitness for duty issue. The policy statement recognizes the progress achieved by the industry and stresses the importance of industry initiatives and self-improvement. The policy statement also provides the necessary NRC overview of industry fitness for duty activities while allowing flexibility for continued i mprovement. We believe the policy statement has already achieved greater results than the originally proposed rulemaking could have achieved , and will allow utilities to address their unique problems and continue to improve their fitness for duty programs.

If we may be of further assistance in the fitness for duty area, please do not hesitate to contact us.

Very truly yours, W. H. Owen Vice Chairman NUMARC Steering Committee WHO/dcm NOV 6 1986 Acknowledged by card .. ...*.******* ~

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BRANCH Se c retary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I I Attention: Docketing and Service Branch

• S BJECT: COMMENTS ON "COMMISSION POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL" Clarification of "Desired Results" On page 1 of the Commission's policy the following statement is ma d e:

It remains the continuing responsibility of the NRC to independently evaluate applicant development and license implementation of fitness for duty programs to ensure that desired results are achieved.

Similarly, on page 5 of the Commission's policy the following st.atment is made:

• The Commission will exercise this deference as long as the industry programs produce the desired results.

What are "desired results"? No where within the policy document are measurable results specified.

I ~; the Commission looking for a significant decrease in the number of challenges to safety systems attributable to personnel "under the influence"? Or perhaps an increase in the number of personnel b e ing disciplined or admitted to drug and alcohol abuse programs?

Or is this simply a philosophical statement of some high purpose?

I f future actions of the Commission in this area are to be predicated on industry programs meeting certain objectives, those objectives must be specified. It is impossible to develop a drug and alcohol abuse program to meet certain criteria if the criteria a r e unknown.

~. S NUCLEA Rcr

• DOCKET N("; "

OFFIC OF n

Postmark n- 1/1'"/1, I Copie, R Add'I C Special D /, 1i)S, ~ G.J_

'IJi sltrui,

- 2 - 8/14/86 Fitness for Duty Program - Statement 1 Wh:_ l e the statement on the sale, use or possession of alcoholic beverages or illegal drugs (page 6) and the statement on being und er the influence of any substance which adversely affects safety (page 6) are both acceptable, the elements of an acceptable f i 1:ness for duty program are not.

Spe cifically, while I acknowledge your legitimate interest in peJ~sonnel authorized for access to the vital areas of the plant, I h ave always felt it to be an abuse of authority when you dictated the requirements for the protected area. All references to "possible discharge from nuclear power plant activities" and "d i scharge from nuclear power plant activities" should be removed from those statements describing an acceptable fitness for duty pro gram.

Sta tements of this nature directly conflict with one of the under-

• lying assumptions of the free enterprise system - the managers of a :ousiness have the right to manage their business. For the Co:nmission to state that when employees of a firm do this or that, th e employee s will be subject to specific disciplinary action is p resumptuous, to say the least. A legitimate concern with the h ealth and safety of the public does not logically lead to a statement of what is or is not acceptable management action in the discipline of employees.

An acceptable alternative would be a statement found in the EEI Guide to Effective Drug and Alcohol Policy Development. The statement i s as follows:

An employee's use, possession or sale of drugs is subject to disciplinary action up to and including termination if this use causes impairment on the job or impacts on the confidence of the public and the government in the company's ability to meet its responsibilities. (Page 7)

Ir. comparison to the Commission's statement, the EEI statement places the responsibility for managing the facility on the managers of the facility and does not abrogate management authority.

F itness for Duty Program - Statement 2 - Privacy Issues There is an underlying assumption in Statement 2 that needs to be re?-examined. There is a conflict between the Commission's inter-pretation of federal statutes and the way some of those statutes a 1:e interpreted by individual states. The Commission sees all L_legal drugs in the same light. Thus, in the Commission's view-point, the possession of recreational amounts of marijuana is t h e same as the possession of a "nickel" bag of heroin. However, in some states the possession of recreational amounts of marijuana i:; considered a misdemeanor while possession of heroin is considered a felony.

8/14/86 Any statement that the Commission makes concerning the sale, poEsession or use of illegal drugs during non-work hours must acknowledge the fact there is no consensus on the recreational use of many drugs. A sizable portion of the population considers recreational drug use to be a concern of no one except the ind ividual user. The question of privacy, where an individual's ri ~hts end and where society ' s rights begin, is still being defined.

Rather than making draconian pronouncements regarding sale, possession or use of illegal drugs on personal time , the Commission must rather examine drug involvement only as it impacts job performance. It is only at this level that the Commission could show a rational basis for concern with non-work related behavior.

What an individual does on his or her own time is no one ' s concern un :_ess that activity can be shown to have a detramental affect upon others *

• Fi t ness for Duty Program - Statement 2 - Rehabilitation What is meant by the statement:

... mandatory rehabilitation prior to reinstatement of access,... (page 7)

I g et bad feelings when I read this. I get an Orwellian image.

It appears that the Commission has now set itself up as some sort of judiciary and is proscribing required treatment for offenders before they will be readmitted to society .

Mandatory rehabilitation brings to mind concepts such as "right thinking", with the "right thinking" being determined by someone else. I see group therapy sessions lead by trained counselors in clinical settings. The words do not bring to mind images of spring sunshine and flowers *

• It is not the place of the Commission to dictate "mandatory rehabilitation".

Co ngress.

That authority rests exclusively with the Judiciary branch of government, not with an Agency authorized by Fitness for Duty Program - Statement 3 Wtat is meant by the term "reasonable assurance"? If the Co mmission's statements are to be interpreted consistently at all f a cilities, generalizations such as "reasonable assurance " must be specifically defined.

If, as the EEI report states, approximately seven (7) percent of industrial employees are drug users of some sort, then at any g ~ven plant seven (7) of every one hundred (100) workers would be involved with drugs. What constitutes a reasonable policy in a:,suring that the seven (7) out of one hundred (100) are fit for duty? Monthly, unannounced, random drug tests? But what of the r i ghts of the ninety-three (93) non users whose privacy would be v .Lolated by random drug tests? From the way the statement is worded, I do not believe this issue has been fully explored.

8/ 14/ 86 Comments on Commissioner Asselstine Statement Commissioner Asselstine seems to belive that as far as a utility is concerned there is a difference between a policy statement and a r ule. This is certainly not the case. When someone in the NRC s nee zes, nuclear utility executives all over the United States say "Bless you!".

The distinction between rule and policy only exists at a the oretical level. At a practical level, any nuclear utility receiving a letter from the NRC saying this is what the Commission be: ieves panics. The generalization applies to all industries.

Receiving a letter from a government regulatory agency throws most ind ustry executives into a panic of action to assure compliance, regardless of the purpose of the letter.

The very fact that the NRC is publishing a set of guidelines, even though they are policy statements and not rules will be enough to

• pr ompt action among nuclear utilities .

Tha nk you for the chance to voice my concerns on some aspects of your policy statement.

Yours respectfully, E. P. Czuchnicki Box 1, Beebe Run Road Bridgeton, NJ 08302

UUI.A\U ........

eHOEOlfD 1WUi "PR -M

• Noh*~

UNITED STATES ( ~/ J=-,e ';_ 7q ]. J) (!)

NUCLEAR REGULATORY COMM ISSION ADVISORY COMMITTEE ON REACTOR SAFEGUA~JRT{ P.

WASHINGTON, D. C. 20555 "86 m; 13 AlO :28 August 12, 1986 OfFIC'° Of SE.l.Kt {ARY OOCKET tMG & SERVICf.

Honorable Lando W. Zech, Jr. BRAHCH Chairman U.S. Nuclear Regulatory Corm1ission Washington, D. C. 20555

SUBJECT:

ACRS COMMENTS ON THE NRC POLICY STATEMENT ON FITNESS FOR DUTY OF NUCLEAR POWER PLANT PERSONNEL

Dear Mr. Zech :

During its 316th meeting , August 7-9, 1986, the Advisory Conrnittee on Reactor Safeguards reviewed the NRC Policy Statement on Fitness For Duty of Nuclear Power Plant Personnel. This matter wa s also discussed during a meeting of the ACRS Subconrnittee on Human Factors on July 15, 1986. We had the benefit of the document referenced.

The Conmittee last addressed th is matter in the letter to Nunzio J.

Palladino, NRC Chairman , on August 9, 1983 entitled, "ACRS Report on the Rule Concerning Fitness for Duty of Nuclear Power Plant Personnel. " In that letter, we noted that the proposed rule would not apply to NRC inspectors and said that such an exemption was inappropriate.

The current Commi ssion Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel conti nues to exempt NRC employees who have unescorted access to vital areas in nuclear power plants. We are i nfonned that the NRC Staff is developing a fitness for duty program which would apply to these em-ployees. We appl aud the NRC Staff initiative and reco11111end that the Corm,is-sion encourage continued development of the program and place it into effect

• as soon as possible. We wish to be kept infonned of its progress.

Further, the Committee endorses the random chemical testing of body fluids as an element in effective fitness for duty programs and encourages its incorpo-ration by nuclea r ut i lities in to nuclear power plant fitness for duty pro-grams .

David A. Wa rd Chainnan

Reference:

SECY-86-153, "Fitness For Duty of Nuclear Power Plant Personnel," memo for the Commissioners from V. Stello, Jr., Executive Director for Operations ,

dated May 14, 1986

U.S. NUCLE OOCKET OFF

• '"'RY COMMfSSION

-~ SECTION

~

RY

, st C r:

Add' Spec

r 00c:Ktrro LISNRc NUCLEAR REGULATORY COMMISSION Commission Policy Statement On Fitness for Duty of Nuclear Power Plant Personnel AGENCY: Nuclear Regulatory Commission.

ACTION: Policy St_atement.

SUMMARY

This statement presents the policy of the Nuclear Regulatory Commiss i on (NRC) with respect to fitness for duty of nuclear power plant personnel and describes the activities that the NRC will use to execute its responsibilities to ensure the health and safety of the public. To provide reasonable assurance that all nuclear power plant personnel with access to vital areas at operating plants are fit for duty, l i censees and applicants are developing and implement1ng fitness for duty programs using guidance of the Edison Electric Institute's (EEI's) "EEI Guide to Effective Drug and Alcohol/Fitness for Duty Policy Development." It remains the continuing

• responsibility of the NRC to independently evaluate applicant development and licensee implementation of fitness for duty programs to ensure that desired results are achieved. Nothing in this Policy Statement limits NRC's a~thority or responsibility to follow up on operational events or its enforcement authority when regulatory requirements are not met. However, while evaluating the effectiveness of this guidance, the NRC intends to exercise discretion in enforcement matters related to fitness for duty programs for nuclear power plant personnel and refrain from new rulemaking in this area for a period of at least 18 months from the effective date of this Policy

Statement. The Co111J1ission invites interested members of the public to provide comments on this-policy statement.

DATES: Effective Date: August 4, 1986 Submit comments by November 3, 1986

• ADDRESSES: Comments should be sent to:

Service Branch. Hand deliver comments to:

Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555. ATTN: Docketing and Room 1121 1717 H Street NW, Washington, DC between 8:15 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Loren Bush, Operating Reactor Programs Branch, Office of Inspection and Enforcement, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone (301) 492-8080 .

• SUPPLEMENTARY INFORMATION:

INTRODUC'TION The Nuclear Regulatory Commission (NRC) recognizes drug and alcohol abuse proQ.lems to be ~2 9c;i~l, medic_al, ang___~~~fety_probl_em ~ffecting e_ve-ry s~g[!l~nt of our society. Given the pervasiveness of the problem it must be recognized that it exists to some extent in the nuclear industry. Prudence, therefore, requires that the Commission consider additional appropriate measures to

provide reasonable assurance that a person. who is under the influence of alcohol or any Sijbstance legal or illegal which affects that person's ability to perfonn duties safely, is not allowed access to a vital area at a nuclear power plant.

The nuclear power industry, with assistance from programs developed and coordinated by EEI and the Institute of Nuclear Power Operations (INPO), has

• made and is continuing to make substantial progress in this area.

BACKGROUND

• A Task Force on Drug Abuse Problems, Policies, and Programs established in 1982 by EEI's Industrial Relations Division Executive Advisory Cormnittee, published guidelines in 1983 to help the industry address the issue of how to establish comprehensive fitness for duty programs. They were* $Ubsequently revised in 1985 as the "EEI Guide to Effective Drug and Alcohol/Fitness for

• Duty Policy Development 11 and were provided to all nuclear utilities.

A series of EEI sponsored regional conferences in the fitness for duty area in 1982 and 1983 provided a forum for discussion of industry concerns related to development and implementation of fitness for duty programs. Topics addressed at the conferences included union participation, legal aspects, training, and methods for handling controlled substances. An industrywide conference sponsored by EEI in October 1985 provided the basis for additional d1$cussions on fitness for duty based on the current EEI guidelines which had been expanded to include information on chemical testing. As a result of

increased awareness in this area, the nuclear industry has worked to develop and implement improved fitness for duty programs. These programs concentrate on the training of managers, supervisors, and others in methods for identifying and dealing with personnel potentially unfit for duty.

On August 5, 1982, tDe Commission published in the Federal Register a proposed rule on fitness for duty (47 FR 33980). The proposed rule would have required

• licensees to establish and implement written procedures for ensuring that personnel in a nuclear power plant are fit for duty. Due to the initiatives taken by the nuclear industry, the Commission has decided to defer implementa-tion of the rule subject to successful implementation of fitness for duty programs by the industry as described in this Policy Statement. NRC is publishing a separate notice in the Federal Register withdrawing the proposed rule, analyzing the comments on the rule, and explaining its intent to reassess the possible need for rulemaking after an 18-month period, if circumstances warrant. The following statement sets forth the Commission's policy on fitness

• for duty and describes how it will execute its responsibilities in this area to ensure the health and safety of the public.

POLICY STATEMENT The Conmission recognizes that the industry, through the initiatives of the

_____ J:lu_cle_ar_Ut_iltty_ Management_a_n_d__

has made progress in developing and implementing nuclear utility employee fitness for duty programs. The Co111T1ission stresses the importance of industry's initiative and wishes to further encourage such self-improvement.

Subject to the continued success of industry s initiatives in implementing 1

fitness for duty µrograms and NRC's ability to monitor the effectiveness of those programs, the CoJTHnission will refrain from new rulemaking on fitness for duty of nuclear power plant personnel for a minimum of 18 months from the effective date of this Policy Statement. The CoJTHnission s decision to 1

defer implementation of rulemaking in this area is in recognition of industry efforts to date and the intent of the industry to utilize the EEI Guidelines

• in developing fitness for duty programs. The Corrmission will exercise this deference as long as the industry programs produce the desired results.

However, the Co1TD11ission continues to be responsible for evaluating licensee's efforts in the fitness for duty area to verify effectiveness of the industry programs. The Co1T1T1ission will reassess the possible need for further NRG action based on the success of those programs during the 18-month period.

At the Cornnission s request, the industry agreed to undertake a review of the 1

program elements and acceptance criteria for a fitness for duty program *

• EEi modified and issued the revised "EEi Guide to Effective Drug and Alcohol/

Fitness for Duty Policy Development. 11 Further, INPO enhanced its performance objectives and criteria for its periodic evaluations to include appropriate criteria for fitness for duty. Copies of the documents describing the program elements and criteria for fitness for duty programs developed by the industry are provided to NRC for review and comment.

The NRC will evaluate the effectiveness of utility fitness for duty programs by its nonnal review of industry activities, through reviews of INPO program status and evaluation reports, periodic NRC observation of the conduct of

INPO evaluations, and direct inspections conducted by the NRC's Performance Appraisal Teams,-ftegional Office, and Resident Inspectors. NRC will also monitor the progress of individual licensee programs.

By way of further guidance to licensees, CoIT11Jission expectations of licensee programs for fitness for duty of nuclear power plant personnel may be summarized as follows:

• o It is Corrmission policy that the sale, use, or possession of alcoholic beverages or illegal drugs within protected areas at nuclear plant sites is unacceptable.

o It is Commission policy that persons within protected.areas at nuclear power plant sites shall not be under the influence of any substance, legal or illegal, which adversely affects their ability to perfonn their duties in any way related to safety.

o An acceptable fitness for duty program should at a minimum include the following essential elements:

(1) A provision that the sale, use, or possession

-of-i 1---1-e ga-1~ gS-W-i..thJn. ...:t he_pro_tec.ted--9,.r_ea wi l_l__

result in i11VT1ediate revocation of access to vital areas and discharge from nuclear power plant activities. The use of alcohol or abuse

of legal drugs within the protected area will result in immediate revocation of access to vital areas and possible discharge from nuclear power plant activities.

(2) A provision that any other sale, possession, or use of illegal drugs will result in irrnnediate

• revocation of access to vital areas, mandatory rehabilitation prior to reinstatement of access, and possible discharge from nuclear power plant activities.

(3) Effective monitoring and testing procedures to provide reasonable assurance that nuclear power plant personnel with access to vital areas are fit for duty.

The industry, by periodic briefings or other appropriate methods, is expected to keep the Conmission informed on program status. The NRC may also from time to time ask individual licensees to provide such information as the Commission may need to assess program adequacy.

Violations of any applicable reporting requirement or instances of a person being unfit for duty such that plant safety is potentially affected will

be subject to the enforcement process. Any NRC staff enforcement action pertaining to fi"tness for duty of nuclear power plant personnel during the 18-month grace period will be undertaken only with Cormnission concurrence.

In addition to required reports and inspections, information requests under 10 CFR 50.54(f) may be made and enforcement meetings held to ensure under-standing of corrective actions. Orders may be issued where necessary to

• achieve corrective actions on matters affecting plant safety.

In brief, the NRC 1 s decision to use discretion in enforcement to recognize industry initiatives in no way changes the NRC's ability to issue orders, call enforcement meetings, or suspend licenses should a significant safety problem be found.

Nothing in this Policy Statement shall limit the authority of the NRC to conduct inspections as deemed necessary or to take appropriate enforcement action when regulatory requirements are not met.

The separate views of Conmissioner Asselstine follow:

This policy statement is a step in the right direction. Human error is a dominant factor in the risk associated with the

---

opera-t-i-on- e-f-nue-1--ea-r--power-l)-lants_.__ _An_ade,qua_t_e_f.Ltae.li for duty_

program is essential to reduce the chance that human error will be caused by utility personnel performing safety-related work in a drug or alcohol impaired state. This policy statement puts

the Corrm1ssion on record as endorsing the concept of a drug and alcohol fr~e *workplace at plant sites, and that is useful. The statement also gives some guidance on what the ColllTlission expects of licensee fitness for duty programs. However, I believe that the Commission should have gone further.

Instead of merely issuing a policy statement, the Coll1llission

• should have promulgated a rule. The rule should be a relatively simple, nonprescriptive rule which would do two things.

it would prohibit anyone who is unfit for duty from being First, permitted access to vital areas of plants. Second, it would require licensees to have a program and procedures to ensure that no one who is unfit for duty gains access to vital areas.

The Commission should then work with the industry to develop guidance on what are the essential elements of an adequate fitness for duty program. There are several reasons why I believe that this would be a better approach.

The most important reason for my preference for a rule and specific guidelines is that a rule is enforceable while a policy statement is not. With a rule the Commission would have a clear basis for enforcement action in all cases in

• which a-otn1*ty faHs-to esta-al-isn and. main.tain. _a_o .e.ffective fitness for duty program. The NRC has broad authority under the Atomic Energy Act to take enforcement action by issuing an order should there be an immediate threat to public health

and safety. The Commission would also be able to take enforcement action if it could tie a specific safety problem to a lapse in the licensee s fitness for duty program.

1 However, the Commission is unlikely to be able to do so. For example, if a maintenance worker makes a mistake in assembling safety equipment because he is under the influence of drugs or alcohol and equipment later malfunctions, it is unlikely that

• the true cause of the mistake would be discovered.

the problem would most likely be attributed to some defect in the worker's training.

In fact, Further, waiting until a specific safety problem surfaces or an immediate threat occurs and then trying to correct the fitness for duty program after the fact is not the best way to ensure that licensees have effective fitness for duty programs. Thus, our general enforcement authority does not provide us with enough flexibility to deal with all potential fitness for duty problems in a timely manner. Absent a specific event, it would not allow us to do much of anything if a licensee simply has not developed or implemented an adequate program. This policy statement represents a continuation of the reactive approach to regulation which has so often failed in the past.

- A- se-c*ond re-as on -for- my-prefe-riense .f-r;ir--a--r-u le .w5th mintmum_

guidelines is that the policy statement is too amorphous.

-Even t-he-J.!speG-ific 11 guidance_ the .Commissi.on does provide is fair1y vague. The policy statement provides little insight

into what the Corrmission considers to be an adequate fitness for duty program or what standard the staff is supposed to use as it monitors the progress of the industry over the next eighteen months.

The Corrmission should work together with the industry to identify the essential elements of an adequate fitness for 4t duty program. While the policy statement comments favorably upon the EEi guidelines developed by the industry, those guidelines are optional, not mandatory. The utilities can, therefore, pick and choose among the various elements and decide whether to include them in their programs. Moreover, the EEi guidelines themselves are quite general in nature, and are subject to varying interpretations. Absent further guidance on what is an acceptable fitness for duty program, the utilities can and probably will adopt widely differing

• approaches on such elements as chemical testing and offsite

• drug use. Not all approaches are likely to be acceptable.

The Corranission should not wait until 18 months from now, when all the utilities are supposed to have their programs in place, to let the industry know whether the Commission agrees with what they have done. The Commission and the

..- --industr-y._.ough.t_to_de.c.id.e_a_ow which elements are absolutely

--~---------~-

essential to an adequate program, and then everyone will

_b_e_w-0.r.k1Jtg_from a common---base

- ------- ----~-

of understanding.

The Comrnfssion and the industry should also establish the specific criteria against which individual licensee programs will be evaluated so that the ground rules for evaluating programs and for monitoring progress will be in place before the 18 month monitoring period begins. Absent such guidelines, it is d1fficult to see how INPO and NRC staff reviews of these programs will provide any meaningful insights as to their adequacy.

Thus, to ensure enforceability, to set the ground rules in advance and to ensure that all utilities meet at least a minimum set of standards, I believe the ColllTlission should issue a rule and should establish guidance, in cooperation with the industry, on just exactly what are the essential elements of a fitness for duty program.

e The additional views of the Commission follow:

The Commission does not share ColllTlissioner Asselstine 1 s great concern about the legally non-binding character of the policy statement per se. The ColllTlission 1 s hands are not tied if it finds inadequate compliance with straight-

---

____ forwar<! and_~~J_i_f_it__e_Q]jcy guidelines. _The Atomic Energy Act confers broad authority for the Commission to take prompt enforcement action should any licensee facility, in the Commission's judgment, not be operated in a manner

that protects the public health and safety. A policy statement, at this juncture, offers the quickest means to achieve the end we all desire.

-#I -<"I Dated at Washington, D. C., this__30 day of .Ju.!f 1986.

For the Nuclear Regulatory Commission Chainnan

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