Two items are of note here. At the direction of the Executive Director for Operations, the NRC's ongoing research to establish fitness for duty Mr. GEJDENSON. Let me just interrupt. Could you identify the individual you are talking about? Mr. BUSH. The EDO? Mr. GEJDENSON. The Executive Director; yes. Mr. BUSH. That was Mr. Dircks. Mr. Dircks retired from the NRC in mid-December 1985. The NRC's ongoing research to establish special fitness for duty program elements had been discontinued in early 1983. The instruction given by the EDO, again Mr. Dircks, was that the research completed to date did not see the light of day because there are no alcohol or drug-related problems in the nuclear industry. Second, regardless of that fact, the NRC could have restarted the research work that had been discontinued by the EDO, possibly combining this with application of existing industry guidelines. As it was, it took the industry until August 1985 to complete the revision of its guidance document. In October 1984, the Commission directed the staff to withhold action on the rule and to write a policy statement. Preparation of the policy statement was to be done in coordination with INPO and NUMARC. Between July 1984 and April 1986, the NRC worked closely with the industry in developing the policy statement. There were no fewer than seven meetings and numerous telephone calls during that period. In September 1985, Commissioner Bernthal raised the question of whether the proposed policy statement would provide any basis for NRC enforcement action should a licensee fail to conform to the industry guidelines. The Executive Director for Operations, again Mr. Dircks, informed Commissioner Bernthal that a policy statement does not provide any additional basis for enforcement action. The EDO stated that a policy statement may not affect substantive obligations; rather, it serves as a statement of purpose or future intent to deal with an issue in a particular way. The staff submitted to the EDO a revised statement which was broader in coverage and, given the limitations of a policy statement, attempted to emphasize NRC's inspection and enforcement authority. The EDO indicated-again this is Mr. Dircks-that prior to submitting the statement to the Commission, the staff should discuss it with INPO and NUMARC to assure that it is understood and able to be accomplished by the industry. The EDO never presented the staff's revised policy statement to the Commission. Again, this was during the transition when Mr. Dircks departed the Commission. Instead, in January 1986, the Commission returned to the staff their revision to an earlier version of the policy statement. The staff regarded this version as "untouchable." In May 1986 NUMARC told the NRC that its steering committee had "overwhelmingly endorsed the policy statement." In July 1986, the Commission approved publication of the policy statement and withdrawal of the previously approved final rule. The policy statement adopted by the Commission has some shortcomings. Since it is really no more than an expression of expectations by the Commission, the policy statement is unenforceable. The possible effects of drug and alcohol abuse on safety at nuclear powerplants should merit the strongest appropriate regulatory measures to prevent such problems. If a fitness for duty program is intended to prevent drug and alcohol problems in nuclear powerplants, then the policy statement only takes the initial steps to achieve that goal. Under the policy statement, if a utility does not have an adequate preventive program, there is little the NRC can do. Moreover, without a rule, a related inspection program, and comprehensive reporting requirements, the NRC is not likely to find out about the problems that should be addressed. The NRC can take enforcement action with respect to fitness for duty only if there is a specific safety problem. For example, if someone is drunk in the control room at a given time and safety is jeopardized, or if a particular safety problem results from poor maintenance and can be traced to a failure in the fitness for duty program. This approach is reactive and fails to emphasize prevention. I should mention that while there is no comprehensive reporting requirement, the Executive Director for Operations-Mr. Stello now-recently approved a revision to NRC's regulations that would require licensees to report discovery of criminal acts, including illegal use of a controlled substance on a case-by-case basis. Furthermore, the staff is planning for a long-term inspection program beyond the limited sample being examined during this 18-month trial period. However, even if problems are discovered, the Commission can take no enforcement action. Any regulatory actions would have to be based on existing statutes and regulations. The policy statement adds nothing to the substantive law. The policy statement cannot require the licensees to comply with the industry-developed guidance. Furthermore, since the industry guidance is not mandatory or prescriptive, the utilities can pick and choose what they want to include in their fitness for duty programs. It is essentially a catalogue of possible approaches to alcohol and drug abuse programs. It does not take a definitive stand or establish a standard in many areas such as coverage of investigations and other proactive measures, approaches to chemical testing, criteria for audits, and written procedures to define proper actions and assign responsibilities. Despite these shortcomings, the industry guidelines do contain useful information which could be a starting point for a more comprehensive effort to develop a national standard. Although there are some limited rules regarding employment of individuals with drug and alcohol problems, there are no NRC regulations which require utilities to take preventive measures to counteract the abuse of drugs and alcohol at nuclear powerplants. As a result, the NRC has essentially left it to the nuclear industry to regulate itself. For its part, the industry developed voluntary guidelines but has prescribed no standards for the prevention of drug and alcohol abuse. Thus, there is no law, no regulation, no national or industry standard which requires nuclear powerplants to protect against drug and alcohol abuse. Mr. Chairman, I would like to add just a couple of sentences to that. I think it needs to be understood, and I think this was also covered somewhat by the Commissioners earlier, that there are a lot of differences of opinion in the Commission. There are very, very strong differences of opinion in the staff and among the Commissioners, as we see in our country, as to what are appropriate means for dealing with drugs. And a lot of these issues are going into the courts. The problem is, without national standards supported by research, the debate will go on forever. I think it should be recognized that the policy statement at least got something started, and what the NRC needs to do now is to benefit from the experience that we have gained over this 18-month period and make an informed decision as to what is the course of action for the future. [Prepared statement of Mr. Bush, Jr., with attachments, follow:] PREPARED TESTIMONY OF LOREN L. BUSH, JR. U.S. NUCLEAR REGULATORY COMMISSION BEFORE THE SUBCOMMITTEE ON GENERAL OVERSIGHT AND INVESTIGATIONS U.S. HOUSE OF REPRESENTATIVES ON JUNE 11, 1987 My name is Loren L. Bush, Jr. I am the Chief, Program Development and Review Section, Safeguards Branch, Division of Reactor Inspection and Safeguards, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission (NRC). I have been NRC's staff contact on fitness for duty program matters since January 1985. "Fitness for duty" is the NRC's way of saying that no person under the influence of any substance which affects that person's ability to perform duties safely may gain access to equipment that could affect the safe operation of a nuclear power plant. It is the Fitness for Duty Program which is intended to protect against drug and alcohol abuse at nuclear power plants. I became NRC's staff contact on fitness for duty during the development of the initial draft of the Commission's Policy Statement on Fitness for Duty of Nuclear Power Plant Personnel. Although other staff members were responsible for the development 2 of NRC's rule and the initial draft of the Policy Statement, I have participated actively in staff actions on fitness for duty matters since that time. Furthermore, I have been quite heavily involved during the past two years, particularly with the implementation of the policy statement. Prior I am a retired Lieutenant Colonel in the U.S. Army. Prior to coming to the NRC, I was Chief, Nuclear Security Division of the Defense Nuclear Agency. In this position, I was responsible for developing nuclear weapons security policy and performing physical security research for the Department of Defense. to that I managed Army Criminal Investigation activities, including the trafficking and abuse of drugs. I have held several elective and appointed offices in the American Society for Industrial Security. Pursuant to a request to the NRC, I was interviewed by staff from the Subcommittee on General Oversight and Investigations. Subsequent to that interview, I was asked by the Subcommittee staff to testify at today's hearing. On August 4, 1986, the Nuclear Regulatory Commission issued a policy statement on Fitness for Duty. This policy statement was issued in place of an NRC regulation that had been approved by the Commission but was withdrawn at the request of the nuclear industry. Unlike the rule, the policy statement is not legally binding and thus does not require action on the part of the utilities to prevent drug and alcohol abuse at nuclear power plants. The policy statement is essentially an expression of |