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statement, this does not foreclose issuance of a rule by the NRC. The NRC may determine after the initial 18-month trial period that the policy statement needs to be supplemented or replaced by a rule. That does not detract from the fact, however, that the policy statement has fostered prompt consideration of the drug issue at most utilities. A rulemaking process would have taken some time to complete and there is little reason to believe it would have achieved quicker or better results. Also, as Mr. Stello stated, the Commission decision to proceed by way of a policy statement was based in important part on the belief that the lack of new regulations specifically addressing alcohol and drug abuse at nuclear power plants did not legally disable the Commission from taking effective regulatory action should alcohol or drug abuse impair the safety of any particular plant. The Commission's Legal Office has consistently supported this reading of the Commission's authority.

As for the Fermi matter, the analysis of the Fermi 01 report was, to the best of the Commission's knowledge, a good faith effort to analyze the strength of the enforcement case presented in the OI report. Such an analysis is appropriate, especially considering that the licensee is entitled to a formal hearing under the Atomic Energy Act, in which the NRC staff has the burden of going forward with a sufficient case.

Mr. Stello also discusses the proposed rule on completeness and accuracy of information. The Commission has not yet taken final action on that proposal. The public comment period has ended and the staff is preparing an analysis of the comments received. The Commission will be considering appropriate action on the proposed rule after the staff analysis is complete.

Commissioner Rogers did not participate in this response.

Sincerely,

Lardo w. Zech h

Lando W. Zegh,

CC:

Rep. Denny Smith

Mr. GEJDENSON. Just one final question and I will let you guys have lunch.

Does TVA comply with safety regulations?

Mr. ZECH. Yes. Everyone does.

Mr. ASSELSTINE. They are supposed to. I think it is one of the great ironies of all of this that some 12 years after the Browns Ferry fire, the Browns Ferry plants are some of the plants that are farthest behind in finally addressing fire protection problems and coming into compliance with our regulations. They are one of the laggards.

Mr. GEJDENSON. Let me thank all of you for the time you have given us here today.

I would like to say a couple of things. There are probably not five individuals in this country that have a greater impact on the health and safety of the citizenry. I understand that the transitions from other roles we have had in life may be difficult ones. But what I, as a legislator, look for in the members of this Commission is the kind of skepticism to give some balance to the industry's earnest presentations.

This isn't simply a matter of profits and losses, as other regulators have to deal with. This is not an issue that is going to divide who wins and who loses in some economic transaction. But the decisions that the five members of this Commission make have a direct impact on the lives, the health and safety of tens of thousands of citizens. I think you all understand that, and I think that where we are trying to weigh you in a little more is to just be a little more skeptical, a little more aggressive, because as somebody who has worked on utility issues since the early 1970's, the industry is well-represented; the industry is well-counseled; the industry has sufficient engineering and scientific staff. And the only people that are there between the industry and the citizens of this country are the five Commissioners of the NRC on Nuclear Safety.

Courts have decided it is in your hands. It is an immense responsibility.

One last bit of business. I invite you or your representatives to remain with us in the hearing for other comments that will be made by witnesses as they come forward.

And, last, for our 4-1 friend on the end, my staff here has come up with a T-shirt for you. This will be your last official appearance before this Congress as a Commissioner. We hope to see you around here regularly. I know that you will get back and try to help your friends stay on the right course.

The staff here got you this T-shirt. And they have the count on the back. [Laughter and applause.]

Mr. GEJDENSON. Thank you all for coming.

The next witnesses, Mr. Bush and Mr. Kelly, if you will come forward and take the oath.

This is no inference on your honesty or your credibility. I made it a policy as chairman of this committee to swear in all witnesses who appear before us. I have asked the Chairman of the Foreign Affairs Committee that I serve on to swear in all witnesses on that committee.

[Witnesses sworn.]

Mr. GEJDENSON. We will start with Mr. Bush. Again, both your full statements will be placed in the record, and we are happy to hear a summary or whatever way you would like to present your information.

PANEL FROM THE U.S. NUCLEAR REGULATORY COMMISSION CONSISTING OF LOREN L. BUSH, JR., CHIEF, PROGRAM DEVELOPMENT AND REVIEW SECTION, SAFEGUARDS BRANCH, DIVISION OF REACTOR INSPECTION AND SAFEGUARDS; AND JAMES A.F. KELLY, SENIOR SECURITY INSPECTOR, REGION IV

Mr. BUSH. 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 of the 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 duty safely may gain access to equipment that could affect the safe operation of a nuclear powerplant. It is the Fitness for Duty Program which is intended to protect against drug and alcohol abuse at nuclear powerplants.

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 Powerplant personnel. Although other staff members were responsible for the development 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 2 years, particularly with the implementation of the Policy Statement.

I am a retired Lieutenant Colonel in the U.S. Army. Prior to coming to the NRC, I was Chief of the 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. Prior to that, I managed Army criminal investigation activities, including trafficking and abuse of drugs. I have held several elective and appointed offices in the American Society for Industrial Security.

Pursuant to a request of 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 NRC 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 powerplants.

The policy statement is essentially an expression of concern regarding drug and alcohol abuse at powerplant sites and an expectation that licensees will develop and implement effective programs to deal with this concern. It references the industry's guidelines,

the "EEI Guidelines to Effective Drug and Alcohol/Fitness for Duty Policy Development," which themselves only recommend but do not require action by the utilities. The Commission established an 18-month trial period to evaluate the effectiveness of this approach and will reassess the possible need for further NRC action based upon industry performance during that period.

The route that the NRC took to issuance of a policy statement rather than the rule may be of interest.

The Commission was first sensitized to the problem of drug and alcohol problems in March 1982 when the staff reported “an alarming increase in reported drug-related incidences," a "wide range of personnel implicated," and a "pervasiveness of the reports on a national basis."

In August 1982, in response to this report, the NRC issued proposed rulemaking on fitness for duty. One year later, NRC staff proposed to the Commissioners a final rule that would have required licensees to establish and implement written procedures designed to provide reasonable assurance that personnel with unescorted access at power reactors are not under the influence of alcohol or drugs or otherwise unfit for duty.

In December 1983, the Commission modified the staff proposal by broadening its coverage to include escorted and unescorted personnel, vital areas within the plant, NRC, and other Government employees.

In July 1984, the Commission approved publication of the broader final fitness for duty rule subject to two conditions:

The staff was to prepare a generic letter with a description of how the NRC would determine compliance and explore with the two major industry groups, the Institute of Nuclear Power Operations and the Nuclear Utility Management and Resources Committee, their willingness to develop detailed program elements and acceptance criteria in lieu of NRC prescriptive guidance.

It was at this point that the NRC's approach to fitness for duty changed. On August 22, 1984, NRC staff met with NUMARC and INPO to discuss the effects of the NRC rulemaking. The industry representatives stated their belief that any rulemaking or other form of mandatory requirement undermines the voluntary efforts of the industry towards self-improvement.

To explain what happened next, I will quote from NRC SECY 84-348 to summarize that meeting:

Subsequently at the August 28 meeting, the NUMARC Steering Committee developed a position that NUMARC would be willing to develop such guidance (the detailed elements of a fitness for duty program) only under the condition that the NRC not promulgate the Fitness for Duty Rule. They want the NRC to promulgate a policy statement or Generic Letter regarding fitness for duty which would not establish enforceable requirements.

I regarded this as dictatorial and an attempt to intimidate the NRC, to gain the upper hand. My reaction was, "Who the hell is regulating who?"

In my opinion, the NRC did not have to buckle to industry pressure. However, NRC management believed that industry development of guidance would be the most expeditious course of action.

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.