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The rule is broadly worded in keeping with the belief that each licensee should establish specific procedures and techniques for determining fitness for duty (e.g., breath testers, psychological tests) taking into consideration circumstances unique to its facility. The Supplementary Information for the rule specifies that written procedures developed by licensees will be expected to respond to the following nominal guidelines: (1) a statement of responsibilities of the program coordinator, managers, supervisors, and employees who come into contact with persons with unescorted access to protected areas; (2) an observation procedure; (3) a procedure (diagnosis, referral, return to duty) for assisting individuals who meet the criteria for alcohol/drug abuse or emotional instability; (4) an administrative procedure for processing individuals who refuse assistance and/or who wish to exercise their appeal rights; and (5) training provisions for all personnel and management to acquaint them with the licensee's fitness for duty procedures. Additionally, an industry task force, staffed by representatives from the Institute of Nuclear Power Operations (IMPO), Edison Electric Institute (EEI) and the utilities, is developing a set of standard guidelines for licensees to use in responding to this rule.

c. Should the "Fitness for Duty" rule be limited in scope to personnel with unescorted access to vital as opposed to protected areas as defined in 10 CFR § 73.27 Ten respondents comment that the rule should be restricted to vital areas; five comment that it should include protected areas. The NRC staff believes that the rule should include all protected areas. Selective application of the rule to only persons with access to the more restricted vital areas would be impractical, since implementation of the rule will occur at the entrance to and in the protected areas of the plant. Additionally, there is no way of guaranteeing that persons with unescorted access to protected areas will not penetrate vital areas through assistance from or coercion of persons with unescorted access to vital areas, especially if under the influence of alcohol or other mind altering and mood changing drugs.

d. Should the "Fitness for Duty" rule apply to MRC personnel? Thirtythree respondents comment that it should; two comment that it should not. The NRC staff believes that the rule should not include coverage of MRC personnel, since MRC personnel (e.g., inspectors) need unfettered access to nuclear power

plants to perform their assigned duties, and since they do not perform functions that directly and immediately affect plant safety.

e. Should there be specific blood alcohol level limits? Three respondents comment that there should not be specific blood alcohol levels established; one respondent comments that there should be levels established (no specific level recommended). The NRC staff currently believes that specification of criteria for unfitness for duty (e.g., blood alcohol level) should be left to the discretion of the licensee.

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: # WASHINGTON, D.C. 20555
****** January 30, 1987

OFFICE OF THE coomissionER

The Honorable Edward J. Markey
Committee on Energy and Commerce
United States House of Representatives
Washington, D. C. 20515

Dear Mr. Markey:

On December 9, 1986, the Commission responded to your letter of November 7
in which you expressed concerns about the Commission's Fitness for Duty
Policy Statement. I was away on official travel and was unable to
participate in the preparation of the December 9 letter. You also wrote to
the Commission on December 8, 1986. In that letter, you indicated that,
based upon a Commission letter about alleged alcohol and drug abuse at
Seabrook, you feel that the Commission has a cavalier attitude toward drug

and alcohol abuse. I did not o
response to your letter. My views on the issues presented by both letters.

are Set out TBETOW.
I did not join in either letter because both of the Commission's responses
are based on the same premises: that the Commission need not TS
regulations on fitness for duty because it is best to let the utilities do
what they want in this area, and that the Commission can focus instead on
specific safety problems associated with alcohol and drug abuse. In my
opinion, that approach is flawed. As the Commission has pointed out Sö
often-tm the past, the NRC has Timited resources and we must, to a large
extent, rely on our licensees to construct and operate plants safely.

However on can require that a utility have an adequate
program, audit to determine Whether the program is being carrise t
effectively, and ensure that specific, identified deficiencies asū-.
GöFrected. This ss the approach the Commission has taken OñTäsy-mumber of
safety issues. However, on fitness for duty the Commission has chosen to

rely only on the last of these three elements -- resolution of specific,
identified safety problems. The Commission does not require that a

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att ncy's inspection program. Such requiremen very usefuTEffects

First, regulations would provide the Commission with much more enforcement

—flexibility. The Commission's policy statement is unenforceable so even
iro the need to correct-à-problem ato # Cu lar ; : The
Commission would have to rely on its general authoristy undes the Totomic

Energy Act to take action. Thus, the Commission's ability to take

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enforcement action would depend upon its ability to identify an immediate threat to health or safety or to tie a specific safety problem to a lapse in the licensee's fitness for duty program. However, waiting until a specific safety problem surfaces or an immediate threat occurs and then trying to correct a fitness for duty program is not the most efficient or effective way to ensure that licensees have adequate programs. Rather, the Commission should set out the groundrules ahead of time and inspect to ensure compliance.

Second, clear requirements and guidance would ensure that all utilities *...*:::::::::###### The Commission policy statement is too amorphous to provide much guidance, and the elements of the industry's EEI guidelines are discretionary. Thus, the individual utilities retain broad flexibility to do as much or as little as they want in developing a fitness for duty program. The result has been quite predictable: there are wide variations in the scope and quality of individual utility fitness for duty programs. To cite just one example, not all utilities have as an element of their programs a random drug testing requirement -- an essential element, in my view, of an effective program. Commission requirements and inspections would ensure that all utilities have at least the core elements essential to an effective program and properly implement those elements.

An additional concern I have with the Commission's response to your letter of December 8, 1985 ss that the Commission did not mention the fact that even the fitness—for Duty Policy Statement, nebulous as it is, does not apply to construction sites. Developing a policy statement or requirements for an operating plant Tss much easier than developing one for a construction site because a construction site presents different problems and issues that must be resolved. For example, many more people work on a construction site, and turnover in the workforce is much higher than at an operating reactor. In addition, construction workforces tend to rely more heavily on transient workers. Also, there are usually a number of contractors on site who provide their own employees. Since not everyone works for the utility, it is harder for the utility to implement an effective fitness for duty program. Because of these and other difficulties and because with operating reactors there is a more immediate health and safety risk, the Commission chose to focus its initial fitness for duty efforts on operating reactors. I agreed with that decision because I felt it was important to move ahead with requirements for operating reactors. However, the Commission should not ignore the construction site problem. We should, therefore, begin developing appropriate requirements for construction sites as well.

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