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staff's technical review process. Thus, there 1s no reason to believe that whatever alternative proposal the licensee comes up with will 1n the end be acceptable and will meet the requirements of Appendix R. Staff's proposal 1s, in effect, to wait until after changes to plants have already been made by licensees to decide whether their approach 1s acceptable. This can only lead to further confusion and further problems 1f the staff ultimately decides unfavorably. And, 1r the meantime, until the staff can discover the deviation and can analyze 1t and until the correct changes to the plant are made, the plant will continue to be 1n noncompliance with Appendix R.

TECHNICAL

I also believe that the Commission should give some consideration to the technical concerns raised by the Agency's experts 1n fire protection, the fire protection engineers. While I am not an expert 1n this area, it seems to me that they raise seme very good points. I will not discuss each Item they raise, their DPOs do that better than T could. However, I will note that their main concern seems to be that the new interpretation document, by allowing divergence from Appendix R and Generic Letter 83-33, strays further from what are considered by those who know to be generally accepted Industry standards.

It appears to me from reading Appendix R that the Commission's Intent 1n enacting Appendix R was generally to apply Industry standards to power plants, and I have seen no technical justification for departing from that course. In fact, given the potential of fires to serve as common mode failure mechanisms, 1t seems entirely reasonable to me to Insist thrt nuclear power plants meet generally accepted Industry fire protection standards.

NEED

My biggest concern about this whole process, however, is that it appears to be unnecessary and may, in fact, delay Implementation of Appendix R even more. Because the interpretations document will enable utilities to withdraw proposals made under Generic Letter B3-33 and does not require prior NRC approval, the dpte when we can say that everyone complies with ^ Appendix R may stretch even further Into the future.

The staff argues, however, that this document 1s necessary to provide additional guidance on Appendix R and to expedite compliance for cVer plants. Admittedly, there was some confusion and uncertainty 1n the early 1980s as to what the staff expected 1n order to ensure compliance with Appendix R. Workshops were held with licensees and from those came the additional clarification 1n Generic Letter 83-33. Plant specific Safety Evaluation Reports were issued providing further guidance to licensees. However, most licensees have been working with the staff to meet the requirements of Generic Letter 83-33. In fact the staff has told us that 62 of 67 plants licensed before January 1, 1979 are scheduled to be in compliance with Appendix R by the end of 1987. Five plants have compliance schedules str *chinp beyend 1987 — Browns Ferry 1 & 3 (yes. Browns Ferry), Brunswick 1 & 2, and Davis-Besse. (See, Memorandum from W.J. Olrcks, EDO,

- 3

to the Commission dated December 26, 1985 "Staff Requirements - Status of Implementation of Appendix R - F1re Protection.") Furthermore, additional guidance has not been necessary with respect to the 30 or so plants licensed since January 1, 1979. The 10 oldest plants have already completed plant modifications or will complete essentially all of their modifications this year. (The one exception Is Dresden 2 which 1s scheduled to complete Its alternate shutdown system by mid-1987.)

The staff also argues that the new Interpretation will better assure corslstent levels of fire protection safety 1n all plants. But, the staff falls to explain how something which will allow deviations from Industry standards and which provides for greater flexibility will result 1n greater consistency 1n fire protection levels. In fact, 1t appears that the staff's new approach will have just the opposite effect.

Since existing guidance seems to have been sufficient for most licensees, working closely with the staff, to determine what 1s required of them, the orest.lon arises "why do we need this Interpretations document?" I have discussed this issue with most of the people Involved in developing the document. It appears that the answer Is because several of the very poor performers on fire protection wanted the new Interpretation. After Generic Letter 83-33 was issued, a few utilities, primarily the leaders 1n the failed lawsuit against the NRC regarding promulgation of Appendix R, began appealing to the staff to develop new Interpretations. Ir March of 1984 those utilities decided to appeal directly to senior staff management. Following the meeting between those utilities and one senior manager, that manager directed the staff to accommodate the concerns of the unhappy few. They were told that if the rule Itself had gray areas, the staff should accSmmodete the requests of those few utilities. This accommodation process led to the "new Interpretations" document, ard to further departures from the standards set in Generic Letter 83-33 and the SERs.

Given this history, I think that a decision to go along with SECY-85-306 would serd the wrong message to the industry. In effect such a decision would say to those utilities that took fire protection seriously, worked with the technical staff to develop a common understanding as to what wasj needed, and then went out and diligently worked to accomplish the necessary Improvements — "This approach was unnecessary, you should have argued with the NRC; you should have gone up the chain of ccrmand until you found a sympathetic ear." Given that all but 5 plants appear to be able to come into compliance with Appendix R by the end of 1987 without a need for "new interpretations," I see no need to Issue additional guidance to help out a few of the utilities, especially when those utilities have been the most recalcitrant and the poorest performers on this issue al1 along.

ENFORCEMENT POLICY

I also believe that the staff's proposed enforcement policy 1s totally Inadequate. Under the staff's proposal, a utility could have major violations of and departures •from Appendix R requirements, 1n fact a utility could have done absolutely nothino to Implement Appendix R, and if

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no fire actually occurs, the staff cculd Impose nothing higher than a Severity Level IV violation.

For ell of these reasons, I cannot support the process and Interpretations outlined by the staff 1n the SECY-85-306 series. There are unanswered questions about the need for the document, the workability of the proposed process, and the technical adequacy of the new Interpretations.

BACKFIT ANALYSIS

As a separate mttter, I think the Commission should carefully consider the backflt analysis provided by the staff on the new Interpretations document. The analysis 1s cursory at best. The discussions of the criteria 1n §50.109 are really nothing more than unsupported, conclusory statements. The level of detail 1n this analysis 1s far below that of the analysis provided for the Station Blackout Rule. I propose that we require an analysis that 1s at least as complete as that for the Station Blackout Rule.

Further, I propose that we publish a more detailed analysis for public comment, as was the interpretations document. Any comments received should be addressed before the Commission acts.

SECY, please track responses.

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RULEMAKING ISSUE *E"-83-"»

(Affirmation)

The Commissioners

William J. Olrcks

Executive Director for Operations

FINAL RULEMAKING CONCERNING FITNESS FOR DUTY FOR PERSONNEL WITH
UNESCORTED ACCESS TO PROTECTED AREAS

To obtain Commission approval to publish a final rule in the
Federal Register which would require development and implementa-
tion of written procedures providing reasonable assurance that
personnel with unescorted access to protected areas of nuclear
power stations, while in those protected areas, are fit for duty.
Licensees Issued operating licenses for commercial power reactors
under 10 CFR 50.21(b) or 50.22 will be required to develop and
implement written procedures within 9 months after the effective
date of the rule, or the date of issuance of an operating license,
whichever is later. Licensees who cannot meet the 9-month deadline
must submit, not less than 90 days prior to that deadline, a request
for an extension to the Director of the Office of Nuclear Reactor
Regulation and demonstrate good cause for the request. The 9-month
requirement resulted from discussions with fitness for duty program
developers in other government agencies and private industry.

On August 5, 1982, the Commission published for comment (47*FR
33980) a proposed rule amending its current regulation 10 CFR
50.54, "Conditions of Licenses" to require licensees to develop
and implement written procedures concerning fitness for duty.
(See Enclosure "G" for Public Announcement of proposed rule.)
A0M sent copies of the proposed rule to all affected licensees
and other interested persons.

Seventy-three responses containing 310 comments were received
(see analysis in Enclosure "D"). Approximately forty percent
of the respondents favor the rule. The remainder auestion the
necessity for the rule, stating that licensees are aware of the
fitness for duty issue and are taking appropriate remedial
action. Included in this latter group are 22 of 36 utilities
responding, eight of 10 utility suppliers responding, and six
01 seven private citizens identified with the nuclear industry.

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The Commissi oners 2

Approximately one-third of the comments involve socioeconomic and
implementation Issues. Recommendations were received for changes
in the rule involving Its wording, scope, and persons affected.
A total of 102 comments were received in response to five specific
questions posed by the Commissioners In the Federal Register notice.
Nineteen respondents are In favor of the Commission establishing
specific fitness for duty criteria; three respondents feel that
these criteria should be established by the individual licensees.
Twenty-seven respondents comment that the Commission should not
specify specific methods (e.g., breath testers, psychological
tests) for Implementing the "Fitness for Duty" rule. Ten
respondents favor limiting the rule to vital areas of the plant;
five favor its application In all protected areas. Thirty-three
respondents favor extending the rule to NRC personnel; two do not
favcr such an extension. Three respondents comment that the NRC
should not establish specific blood-alcohol level limits; one
respondent favors NRC establishing limits but does not recommend
a specific level.

The Federal Register notice for the final fule (Enclosure "A")
Includes a brief summary of major Issues raised in the comments
received. Enclosure "0" provides a detailed discussion and
resolution of all public comments.

The final rule does not Include coverage of NRC personnel, since
NRC personnel (e.g., Inspectors) require unfettered access to
nuclear power plants to perform their assigned duties, and since
they do not perform functions that directly and immediately
affect the safety of the plant.

The rule retains the word "protected" rather than using the term
"vital" to describe affected areas of the plant. Selective appli-
cation of the rule only to persons with unescorted access to vital
areas would be impractical, since Implementation of the rule will
occur at the entrance to and In the protected areas of the plant.
Additionally, there Is no way of guaranteeing that persons with
unescorted access to protected areas will not penetrate vital
areas through assistance or coercion of persons with unescorted
access to vital areas, especially If under the influence of alcohoi
or other mind altering and mood changing drugs.

Finally, the rule 1s broadly worded In keeping with the belief
that each licensee should establish specific procedures and tech- _
niques for determining fitness for duty (e.g., breath testers,
psychological tests) taking into consideration circumstances unique
to its facility. Written procedures developed by licensees would
probably include the following: (1) a statement of responsibilities
of the program coordinator, managers, supervisors, and employees
who come In contact with persons with unescorted access to protected
areas; (2) an observation procedure; (3) a procedure (diagnosis,
referral, return to duty) for assisting individuals who meet the

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