The Policy Statement's endorsement has other ramifications as well. The most significant problem is that the NRC makes participation in such fitness for duty programs voluntary. Policy Statement does not command utilities to adopt fitness for duty programs; rather it recognizes "the intent" of the industry to use the EEI guidelines. [73]

The

Further, the EEI guidebook explicitly states that the program suggestions contained in it are not mandatory. guidebook's introduction says in bold italic type that information included in this guide is not intended to be mandatory or prescriptive; other methods may be equally as effective as those presented in this guide." [74] Utilities may "pick and choose" [75] from among the examples given in the EEI guidebook and institute a fitness program -- if they chose.

Another problem with the Policy Statement is that it does not set up a comprehensive reporting system. acknowledges that there is "nothing in [NRC] rules requiring licensees to report drug abuse of their employees." [76] According to NRC staff attorneys, to get such reports, the Commission would have to adopt a rule, not a policy statement. [77]

Thus, the NRC cannot measure whether the industry's, or a specific utility's, fitness for duty program is accomplishing its goals. For instance, the NRC has no way of knowing whether the number of positive drug tests has increased or decreased, nor can it find out how many people were terminiated for drug use. The NRC will not be able to determine how utilities learned of specific cases of drug abuse and whether the discovery was due to their fitness for duty programs.

These lapses will scuttle the NRC's ability to assess whether fitness for duty programs are working. Further, they fail to provide a system by which the agency can analyze what types of events are not adequately addressed by current programs, and which events or problems may need further attention.

Without a means for evaluation, enforcement is difficult, if not impossible. If the agency does not know when, or what, things are going wrong with the programs, it cannot impose penalties for noncompliance.

NRC Commissioner Asselstine charges that "absent a specific event," the Policy Statement "would not allow us to do much of anything if a licensee simply has not developed or implemented an adequate program." For instance, according to Asselstine, "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." [78]

According to the Policy Statement, the NRC "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 the statement (August 4, 1986). [79] The Commission may then "reassess the possible need for further NRC action based on the success of those programs during the 18-month period." [80]

To do so, the NRC will need a set of criteria against which to evaluate the fitness for duty programs after the 18-month grace period. However, no such criteria exist, nor is there a checklist of what procedures a minimum fitness for duty program should include. This led NRC Commissioner Frederick Bernthal to repeatedly object to the Policy Statement. [81]

The Policy Statement implies the NRC's intent to come up with a set of criteria during the grace period. However, the agency does not plan to develop criteria until the programs are underway. [82]

Thus, it is likely that the criteria will reflect existing programs, rather than the other way around. According to Commissioner Asselstine, it is unknown "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." [83]

"The Commission and the industry," Asselstine continues, "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." [84]

Absent this, "it is difficult to see how reviews of these programs will provide any meaningful insights as to their adequacy," he concludes. [85]

Other Agencies Doing Little

While the NRC, INPO, and the nuclear industry are doing little to stem the use of drugs at nuclear power plants, other agencies with jurisdiction have been equally lax. The Federal Bureau of Investigation (FBI), the U.S. Drug Enforcement Administration (DEA), and Congress have done little or nothing in this area.

The U.S. Department of Justice has jurisdiction over all interstate crimes including drugs. Through its "Uniform Crime Reporting Program," the Department of Justice collects statistics on all types of crime. The system depends, however, on the cooperation of local law enforcement agencies which rarely report the employer of a person arrested for a drug-related crime. [86] Thus, there is no way of tracking use by plant employees.

On February 3, 1987, President Reagan announced that all the government's anti-drug programs will be combined under the National Drug Policy Board, directed by Attorney General Edwin Meese. [87] The board's job, however, according to Department of Justice spokesperson Dean St. Dennis, will only be to coordinate federal drug programs, and will have little direct jurisdiction over employees of nuclear power plants. [88]

Similarly, the Drug Enforcement Administration (DEA) and the Federal Bureau of Investigation (FBI) are not involved with drug use at nuclear power plants unless there are cases which involve large amounts of drugs or felonies. According to the DEA's Bob O'Leary, the agency's "Demand Reduction Program" has a "working relationship" with utilities (not necessarily nuclear) for large arrests. [89]

Most drug arrests are misdemeanors, according to the DEA, and misdemeanor data is "almost exclusively a local police situation." John Eck, Senior Research Associate with the Police Executive Research Forum (PERF), a trade association of municipal police executives, concurs: Reporting "depend[s] upon arrangements between the power company and the police." [90]

The NRC also agrees that drug cases are "usually handled by local law enforcement," [91] but claims that police routinely work with utilities. According to the NRC, if local police arrest a nuclear utility employee, they normally "pass [the information] to the utility, unless it involves management" in which case they would report it to the NRC. [92]

"That's B.S.," he

John Eck of PERF, however, disputes this. says, "just ignorance." [93] According to Eck, arrest information is rarely shared with utilities.

However,

Congress also has responsibility for ensuring safety at nuclear power plants which it exercisers via several committees and subcommittees that have jurisdiction over the NRC. none of them have taken meaningful action. [94] Several committees, for instance, have held hearings on various health and safety issues at nuclear plants, but none have specifically addressed nuclear plant drug and alcohol abuse. In addition, Congress' Drug Enforcement Caucus, formerly headed by ex-Senator Paula Hawkins (R-FL), has "done nothing" on the issue according to a Caucus spokesperson. [95]

Recommendations

Drug and alcohol abuse at nuclear power plants is, in the Nuclear Regulatory Commission's (NRC) own words, "alarming" and on the rise. The safety of the more than 150 million Americans living near nuclear power plants relies on the ability of nuclear plant employees to think clearly, to be attentive to their responsiblities, and to make the right decisions during

emergencies. Clearly, drug and alcohol abuse at nuclear power plants cannot be tolerated.

However, drug and alcohol abuse is rampant. NRC records reveal that over 120 cases of drug and alcohol abuse, involving at least 400 of nuclear plant employees, have occurred during the past several years. Moreover, the NRC admits that these cases represent "just the tip of the iceberg." Other evidence suggests that the numbers may be hundreds of times higher.

The NRC, notwithstanding its responsibility to regulate nuclear safety, is doing almost nothing to stem the problem. Similarly, other federal and state agencies are doing little.

The NRC presently has no effective program to control drug and alcohol abuse among nuclear power plant employees. The Policy Statement approved by the agency in August 1986 will do little to ensure that nuclear plants employes are "fit for duty."

Instead, the NRC has delegated responsiblity for ensuring fitness for duty to individual utilities and the Institute for Nuclear Power Operations (INPO).

However, INPO's fitness for duty records are not available to the public under the Freedom of Information Act, and in many cases, are not available to the NRC itself. Thus, the NRC is allowing the industry to regulate itself in this area with no opportunity for government or public oversight.

Without oversight, the potential for ineffectual or abusive fitness for duty programs by nuclear utilities is great. For example, utilities could initially opt to implement more draconian measures such as drug testing without first exploring less intrusive options such as education and training programs. Further, badly designed programs could result in innocent workers being accused of drug abuse. Unmonitored fitness for duty programs could also be arbitrarily applied to harass employees who may have reported safety defects to the NRC or the media.

Thus, at the very least, the NRC should immediately propose a fitness for duty rule to replace its current Policy Statement. The rule should be issued for public comment and then expeditiously implemented by the agency. Since this issue has been before the NRC for over six years, there is no justification for a protracted rule-making process. The NRC should be able to implement a rule by the end of 1987.

Presently, record keeping on drug and alcohol abuse at nuclear power plants is essentially non-existent. The NRC should institute a formal reporting mechanism whereby utilities must report to the agency all instances of drug and alcohol use by workers while on duty. The reports should include, but not be limited to, the number of employees who were disciplined,

suspended, or fired for drug or alcohol use and the circumstances of each case.

Where utilities sponsor drug or alcohol rehabilitation programs, the numbers of workers in those programs should be reported along with analyses of the success of such programs. plants where educational program are in place, the nature and effectiveness of such programs should be reported.

For plants which employ drug testing, utilities should be required to file reports with the NRC detailing how many people underwent drug tests, and how many of these were positive, negative, or inconclusive. To protect workers' rights, names need not be included in any of these reports.

This information could help other utilities craft responsible and effective fitness for duty programs and could also help the NRC determine the effectiveness of utilities' efforts.

Present NRC policy asks utilities to voluntarily participate in fitness for duty programs. The NRC, however, should mandate them. The rule should, at the minimum, provide clear, detailed, and comprehensive criteria for fitness for duty programs.

These criteria should stipulate minimum standards for acceptable programs such as providing for comprehensive education and training of nuclear employees. They should also mandate appeal procedures for employees accused of drug or alcohol abuse or other procudures to safeguard worker rights. Further procedural safeguards are also needed to address the high error rate and potential for abuse inherent in drug testing programs.

A fitness for duty rule should also impose a deadline by which utilities must submit fitness for duty plans to the NRC for approval. Failure to have a plan submitted by the deadline should result in suspension of the utility's operating license.

Under the current policy, the NRC has no enforcment mechanism to ensure compliance. For such a mechanism to be established, the NRC must replace its Policy Statement with a rule. The rule should stipulaté enforcement guidelines; failure to comply with the rule should result in the imposition of fines, and for gross violations, more severe sanctions, including the revocation of a utility's operating license.

To ensure that there is no further delay by the NRC, those committees of Congress with NRC oversight jurisdiction should monitor the progress of the agency in addressing this issue. If necessary, Congress should mandate that the NRC fulfull its responsiblity to adequately control drug and alcohol abuse through legislation or through its budget-setting authority.

While INPO should be encouraged to promote fitness for duty programs among its member utilities, all formal or informal delegations of authority by the NRC to INPO should be withdrawn. The NRC should not ignore its responsibility to develop its own