programs to ensure that desired results are achieved. Nothing in the policy statement limits NRC's authority or responsibility to follow up on operational events or its enforcement authority when regulatory requirements are not met. The Commission explained in the policy statement that it will evaluate the effectiveness of utility fitness for duty programs by, among other ways, direct inspections conducted by NRC's Performance Appraisal Teams, Resident Inspectors and inspectors from the Regional Offices. It also stated that 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 NRC's enforcement process. If the Commission suspected that a licensee is not developing or implementing an adequate fitness for duty program along the lines indicated in the policy statement, it could inspect the licensee and require information under 10 CFR 50.54(f) to determine whether the license should be modified, suspended or revoked. Thereafter, if the Commission found that the licensee's program was indeed inadequate, it could make, for instance, a public health and safety determination under which it could order modification of the license by inserting the elements of the policy statement as a condition of continued operation. ANSWER 7d.

At the Commission's request, the industry agreed to undertake a review of the program elements and acceptance criteria for a fitness for duty program. EEI modified and issued its revised guideline, and INPO enhanced its performance objectives and criteria for its periodic evaluations to include fitness for duty policies and activities. The nuclear utilities have stated that they want to strive for excellence and do more than meet the standards set by NRC, and they have agreed through NUMARC and INPO. Thus, although NRC has not used a rule to make EEI's guideline mandatory, utilities have agreed to follow them and to be evaluated by INPO to ensure that they develop and implement adequate programs. Consequently, NRC can work with INPO, as explained in the policy statement, to make sure that the EEI Guideline are followed and it can take separate action, as explained in answer to Question 7c, against an individual applicant or licensee when such action is necessary.

Mr. KELLY. I would like to add something else here to help give a better picture. Please bear in mind that the NRC is not in itself a law enforcement agency. We are a regulatory body. But what becomes confusing is that the utilities are instructed to depend upon the local law enforcement agencies to deal with these law enforcement powers.

I would like to point out that most of the utilities in our region have a lot of security personnel. The exact security population is a restricted number, but let's say at least over 100 at every one of them, and some of them much larger than that. We have counties where-no joke—I mean it is the sheriff and his wife, and if his son is home from school, that's all we have got there. And we are expected, or the utility is expected to refer cases and get professional experience from those folks.

Now, I don't mean to put them down either. They are doing the best they can, but when they turn around and they see these multimillion dollar security operations, they know exactly where they are and where the expertise lies. But the authority is all mixed up. So I think it is important to know that; that there is some confusion about this.

Mr. DEFAZIO. And I share your sentiments there. I come from a county that is the size of the great State of Connecticut. We have some 270,000 people, and yet because of budget cutbacks, the sheriff has only 13 deputies on the road. Granted, we are a little more orderly out there than back here, but we do need some law enforcement.

Just on the proposed rule last year, I find something curious. That is, that you in your testimony said that the Cooper Plant is requesting that NRC employees take a drug test before you and other inspectors come on. Have there been documented instances of people in your department having these problems while inspecting plants?

Mr. KELLY. No, sir. That came out of a number of these items that I talked about earlier. They eventually-they being the management of the Cooper Nuclear Station-did develop a drug and alcohol program. The effectiveness of that program then led them into a Federal court. There were a number of suits that were brought right away. I think the outcome of those suits was that the court held that everybody had to be tested going in, so Cooper Nuclear Station then attempted to include the NRC inspectors as well. That has not been resolved, and since we don't-I mean I don't know whether I made it clear or not, but we as the NRC don't even have a program for ourselves.

Mr. DEFAZIO. Right.

I have something called Inside NRC, June 8, 1987, which says that NRC employees, region IV personnel, visiting Nebraska Public Power District's Cooper Plant after June 18 are on notice that they must comply with the utility's drug and alcohol testing program or be escorted by security guards, presumably some of the people who have had the drug and other conduct problems-hopefully, they won't be a bad influence on you-or utility personnel during inspections of vital areas of the plant.

You know, it is a very bizarre turn of events. And then they go on-and this is apparently a document from the NRC-talking

about alleged drug use. When someone takes a plea bargain, to me it seems like we have documented problems at that plant, and now what they want to do is have the NRC employees take tests. It is a bizarre turn of events.

Mr. KELLY. Mr. Chairman, could I please comment?

Mr. GEJDENSON. Go right ahead.

Mr. KELLY. Let me say to you that a lot of that stuff about Cooper is historical. Please be assured that we did not walk away from there without ensuring that that program was straightened out. We spent a lot of time with it and they spent a lot of time and money. Their willingness is a whole other question, but they have done that.

But I must confess to you, I don't have a lot of confidence inwell, I wasn't willing to volunteer for it, let me put it that way. Mr. GEJDENSON. Let me ask Mr. Bush a couple of questions. Maybe we can get done before we have to leave for this roll call. Has the NRC identified 61 plant sites for which the NRC has received information between 1981 and 1986 in which at least one person has been identified as suspected of drug and alcohol abuse? Mr. BUSH. Yes, that is correct.

Mr. GEJDENSON. And is the Cooper plant on this list?

Mr. BUSH. No, it is not.

Mr. GEJDENSON. Why is it not on this list?

Mr. BUSH. Very simply, because the matters were not reported to the headquarters.

Mr. GEJDENSON. Can the NRC impose a fine or shut down a utility which does not have a fitness for duty program at all?

Mr. BUSH. The answer is no.

Mr. GEJDENSON. You are telling me that if a utility does not have a fitness for duty program, the NRC cannot fine them or shut that utility down?

Mr. BUSH. No. The NRC, if they determine that there is a safety concern, could order the plant shut down, but not simply because there is no program.

Mr. GEJDENSON. Was anyone other than industry groups, INPO, and NUMARC, invited to provide comments to the NRC prior to the publication of the Fitness for Duty Policy Statement?

Mr. BUSH. No.

Mr. GEJDENSON. In developing the policy statement, didn't the NRC meet with the industry to try to reach an agreement?

Mr. BUSH. Yes.

Mr. GEJDENSON. Regarding your statement about the unenforceability of a policy statement, is it not so that the NRC has never taken an enforcement action for a utility's failure to comply with the policy statement?

Mr. BUSH. Yes.

Mr. GEJDENSON. I am going to have to run back in a second. But it seems to me that the example of my colleague from Oregon was an important one. Here, if we found this kind of activity within the airline industry, we would ground every plane out there, and we allow almost 100 plants to run in the country without the regulating agency taking what I think most reasonable people would consider to be adequate precautions for the public safety. That is a pretty serious allegation.

I am going to return momentarily, and hopefully this 7-minute break will only last 7 minutes.

AFTER RECESS

Mr. GEJDENSON. Mr. Bush, you wanted to make a clarification, I understand?

Mr. BUSH. Yes, Mr. Chairman.

On the last page of my statement when I was summarizing some of the problem areas with the EEI Guide, I said that it failed to establish or address coverage of offsite activities. The first section of the EEI Guide does cover or recommend policies for off-duty and offsite use in possession of drugs. So I request, if you would, that that particular phrase be deleted.

Mr. GEJDENSON. Staff will take note of that change. It has already been done on the record, so it has been corrected.

Given the role of the Office of Investigation, OI, as the investigator of wrongdoing by the licensees, what was its position on the policy statement?

Mr. BUSH. OI favored an explicit rule, and they believe that the absence of such a rule could adversely affect their authority to investigate such matters.

Mr. GEJDENSON. So that without a firm rule, it puts some of your actions in question and it puts in question the ability of the NRC to take direct action on some of these problems of drugs and alcohol.

Mr. BUSH. Yes. Mr. Chairman, instead of "firm," I would use the word "explicit" because our lawyers tell us we enforce exactly what we have in that language.

Mr. GEJDENSON. What is your overall assessment of the industry's guidelines, the EEI Guidelines?

Mr. BUSH. In 1983, I reported my concerns about the quality of the industry initiative and referred to the original version of the EEI Guides as Neanderthal at best. Although the 1985 revision was an improvement, it still leaves a lot to be desired.

What I find most disappointing is that since that 1985 version was published-we are now talking close to two years-there have been a lot of lessons learned, and the industry has not really taken the initiative to continually revise that guide and to profit by the experiences.

Mr. GEJDENSON. Let me ask you one of the fundamental questions. If a licensee found someone drunk at the control panel, this individual was intoxicated while he was at the control panel, would that licensee have to inform and report to the NRC?

Mr. BUSH. As I stated earlier, Mr. Chairman, there is no clear requirement that the licenses report such a matter. However, the Commission would clearly expect it to be reported.

Mr. GEJDENSON. By virtue of the policy statement, are utilities required to prohibit someone who is unfit for duty from gaining access to vital areas of the plant? This is, again, according to the policy statement. Are they required to do so?

Mr. BUSH. No, sir.

Mr. GEJDENSON. Are you aware of a 1983 report entitled Drug and Alcohol Abuse: The Basis for Employee Assistance Programs in the Nuclear Industry?

Mr. BUSH. Yes.

Mr. GEJDENSON. In the Executive Summary it states that data were not available regarding drug and alcohol abuse in the nuclear utility industry.

Do you know why these data are not available?

Mr. BUSH. Yes, sir. There were a couple of points. First of all, our Office of Nuclear Regulatory Research management directed that the researchers not conduct a formal study. The researchers then contacted 20 utilities by telephone, attempting to do a telephone survey, and found that the desired data was not available, or the people contacted were reluctant to provide estimates. However six did, which is mentioned in the new reg document.

Now, the reasons the licensees do not have data varied some what. Many did not have an employee assistance program or their programs were in their infancy. Therefore, they didn't have the data to report.

Another reason which I have found in my current inspections is that the data are kept corporate-wide, so they do not focus on the nuclear plant itself.

Another common cause is that the employee assistance program typically provides confidentiality and management seems to think that that means that they shouldn't be privileged to any information as to how the program that they are paying for is performing. Mr. GEJDENSON. Well, let me thank both of you. Again, it cannot help but strike all of us as somewhat odd that here, the NRC in 1982 expresses concern about drug and alcohol abuse, it comes up with a rule that is basically unforceable, leaves us in a situation where nuclear powerplants that have the potential for far greater danger to people in this country and property are left without adequate procedures to keep on top of the statistical analysis and the incidental activities.

I would like to commend both of you. I understand how difficult it is to be back in the bureaucracy, having worked in Government at various levels. I commend both of you and others who have come forward with information for their courage, and we will watch your careers, and we certainly hope that you will get the kind of recognition that you deserve for having the courage of good public servants. That is something those of us in Congress cannot survive without.

The bureaucracy is too large, it is too diffuse, our staff resources are too limited. And without your courage here today to focus on what I think is an important issue, these matters could not be brought to the attention of the public and hopefully to the policymakers so that we can see some changes.

Thank you both very much.

Mr. GEJDENSON. Our next two witnesses, Mr. Pawlik and Mr. Sinclair.

You guys were supposed to be up at 1:30 or 2.

Mr. PAWLIK. Mr. Chairman, I am going to have to amend my statement. It says "Good morning.'

Mr. GEJDENSON. Let me apologize for keeping you waiting.

Let me just ask you to rise. Since you have been here all day, you understand no inference is meant for either of you.

[Witnesses sworn.]