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The industry, by periodic briefings or other appropriate methods, is expected to keep the Commission 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.

ENFORCEMENT

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 fitness for duty during this grace period will be undertaken only with

Commission 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 understanding of corrective actions. Orders may be issued where necessary to achieve corrective actions on matters affecting plant safety.

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

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Nothing in this Policy Statement shall limit the authority

of the NRC to conduct inspections as deemed necessary to

take appropriate enforcement action when regulatory requirements are not met.

Commissioner Asselstine's Separate Views

on Fitness for Duty Policy Statement

This policy statement is a step in the right direction. Human error is a dominant factor in the risk associated with the operation of nuclear power plants. An adequate fitness 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 Commission on record as endorsing the concept of a drug and alcohol free workplace at plant sites, and that is useful. The statement also gives some guidance on what the Commission 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 Commission should have promulgated a rule. The rule should be a relatively simple, nonprescriptive rule which would do two things. First, it would prohibit anyone who is unfit for duty from being 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 utility fails to establish and maintain an effective 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. 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. In fact, the problem would most likely be attributed to some defect in the worker's training. 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 second reason for my preference for a rule with minimum guidelines is that the policy statement is too amorphous. Even the "specific" guidance the Commission does provide is fairly vague. The policy statement provides

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little insight into what the Commission 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 Commission should work together with the industry to identify the essential elements of an adequate fitness for 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 Commission 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 the industry ought to decide now which elements are absolutely essential to an adequate program, and then everyone will be working from a common base of understanding.

The Commission 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