Barry Quigley

[Federal Register Volume 64, Number 230 (Wednesday, December 1, 1999)]
[Proposed Rules]
[Pages 67202-67205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31192]

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 26

[Docket No. PRM-26-2]

Barry Quigley

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; notice of receipt.

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SUMMARY: The Nuclear Regulatory Commission is publishing for public
comment a notice of receipt of a petition for rulemaking dated
September 28, 1999, that was filed with the Commission by Mr. Barry
Quigley. The petition was docketed by the NRC on October 7, 1999, and
has been assigned Docket No. PRM-26-2. The petitioner requests that the
NRC: (1) Add enforceable working hour limits to 10 CFR Part 26; (2) add
a criterion to 10 CFR Part 55.33 (a)(1) to require evaluation of known
sleeping disorders; (3) revise the Enforcement Policy to include
examples of working hour violations warranting various NRC sanctions;
and (4) revise NRC Form-396 to include self-disclosure of sleeping
disorders by licensed operators. The petitioner also requests changes
to NRC Inspection Procedure 81502, Fitness for Duty Program. The
petitioner believes that clear and enforceable working hour limits are
required to ensure that the impact of personnel fatigue is minimized.

DATES: Submit comments by February 14, 2000. Comments received after
this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Commission,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Attention: Rulemakings and Adjudications Staff. Hand deliver comments
to: 11555 Rockville Pike, Rockville, Maryland between 7:30 a.m. and
4:15 p.m. Federal workdays.
For a copy of the petition and the two reports submitted with the
petition (referenced below), write to David L. Meyer, Chief, Rules and
Directives Branch, Division of Administrative Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001.
You may also provide comments via the NRC's interactive rulemaking
website at https://ruleforum.llnl.gov. This site provides the capability
to upload comments as files (any format), if your web browser supports
that function. For information about the interactive rulemaking
website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail:
cag@nrc.gov).
The petition and copies of comments received may be inspected and
copied for a fee at the NRC Public Document Room, 2120 L Street, NW.
(Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Chief, Rules and
Directives Branch, Division of Administrative Services, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, Telephone: 301-415-7162 or Toll Free: 1-800-368-5642.

SUPPLEMENTARY INFORMATION:

The Petitioner

The petitioner is licensed by the NRC as a Senior Reactor Operator
who is required to comply with all applicable Commission regulations.

Background

The petitioner states that in an increasingly competitive
electricity market, the battle cry is ``do more with less.'' According
to the petitioner, this translates into fewer people who are working
more and sometimes many more hours at nuclear power plants. The
petitioner believes that personnel

[[Page 67203]]

mistakes at nuclear power plants can be attributed to fatigue and
believes that work-hour limits should be required to minimize personnel
fatigue.
The petitioner states that in a letter dated May 18, 1999, to
Congressman Edward J. Markey, then-NRC Chairman Shirley Jackson stated
that few significant industry events can be attributed to fatigue.
While the petitioner agrees that this statement is correct, he asserts
that a review of the NRC's Human Factors Information System (HFIS)
database suggests that events related to fatigue occur but are not
reported, or not properly attributed to fatigue. According to the
petitioner, NRC inspection reports listed 87 occurrences of staffing as
less than adequate while the industry, using data from the Licensee
Events Report, only listed 11. For occurrences attributable to
excessive overtime/acute fatigue, the petitioner states that NRC
reported 59 occurrences, as compared to 3 occurrences reported by the
nuclear industry, and for frequent use of overtime/cumulative fatigue,
NRC reported 28 cases and the industry reported none.
The petitioner believes that, based on NRC's much higher reporting
of fatigue-type events, industry's accounting and reporting process is
non-conservative. The petitioner believes that the tendency of the
industry to under-report events related to fatigue is all the more
significant in light of the NRC's trend, as asserted by the petitioner,
of reducing its inspection efforts at nuclear power plants.
The petitioner states that while NRC's HFIS database contains more
events related to fatigue than industry's reporting, the NRC also
under-reports fatigue issues. The petitioner states that among other
things, fatigue causes inattention to detail, increased risk-taking,
and poor work practices. The petitioner cites the following categories
in the HFIS database to support his position:

Work practices or skill of the craft less than adequate--If the
skill of the craft activities are not performed consistent with
management expectations, safety significance of activity or industry
standard. 4913 occurrences (NRC and industry combined).
Non-conservative decision making or questioning attitude less
than adequate--If personnel fail to stop work or establish
appropriate controls when presented with unfavorable or uncertain
work conditions. 1805 combined occurrences.
Self-checking less than adequate--If a worker fails to self-
check adequately before performing task (Stop, Think, Act, Review).
618 combined occurrences.
Awareness or attention less than adequate--Includes problems
that are due to failing to maintain situational awareness,
infrequent or ineffective control board monitoring and problems
arising from being distracted or interrupted. 2389 combined
occurrences.

The petitioner states that the 9725 occurrences included in these
four categories account for almost 30% of the total HFIS entries for
1996 through 1998. The petitioner believes that while there are
certainly other causes for these occurrences, such as distractions and
interruptions, fatigue most probably played a role in a respectable
percentage of them. The petitioner cites a National Transportation
Safety Board (NTSB) report, which was attached to the petition, that
found that, depending on the transportation mode, 21% to 33% of
consequential events were fatigue-related, whereas the NRC only
attributed 90 occurrences (out of the 9725 included in the HFIS
database) directly to fatigue. The petitioner states that it is highly
unlikely that less than 1% were caused by fatigue. The petitioner
compares the fact that the Department of Transportation (DOT) spent
over $30 million on fatigue research in fiscal years 1990 to 1998,
while no figures could be found in the NRC budget related to fatigue
research. The petitioner compares NTSB and DOT research reports to
recent NRC research reports and asserts that the NRC may not be
qualified to detect fatigue-related events until they grow to the size
of the Peach Bottom occurrence (the NRC ordered two reactors at Peach
Bottom nuclear plant to be shut down in March 1987 after NRC inspectors
discovered licensed operators asleep in the control room).
The petitioner specifies three other factors that reduce faith in
NRC and the industry's reporting on fatigue:
1. Some fatigue errors have latent effects that may not be
discovered for quite sometime. The examples the petitioner provided
were valve mispositionings and procedures with technical errors caused
by an over-worked and fatigued staff. The petitioner asserts that the
cause for such errors would be difficult to trace.
2. The HFIS database shows 392 occurrences for which a root cause
analysis was determined to be less than adequate. The petitioner
questions the quality of the LER's presented by industry to identify
all causes of an event.
3. The NRC is not aggressive in looking for fatigue issues. The
petitioner notes that NRC indicated that it is very difficult to get
overtime issues into Inspection Reports because it is concerned that
the licensee may object.
The petitioner states that it appears that the policy of NRC is to
wait for something bad to happen and then raise the issue with licensee
management.

Petitioner's Conclusion

The petitioner states that the NRC issued a Generic Letter 82-12 on
June 15, 1982, to all plant owners that provided guidelines that
established controls to prevent situations where fatigue could reduce
the ability of personnel to maintain the reactor in a safe condition.
According to the petitioner, the issuance of the Generic Letter 17
years ago indicates that NRC is well aware of the threat and undue risk
posed by fatigue on workers to safely operate a nuclear power plant,
and therefore required plant owners to control working hours. The
petitioner notes that with electricity deregulation forcing plant
owners to slash staffing levels and work the survivors longer and
longer hours, that the NRC has redefined the fatigue risk because few
significant events can be precisely attributed to fatigue. However,
according to the petitioner, the NRC shut down the Peach Bottom plant
without first proving that a single significant event at the facility
could be attributed to operator inattentiveness (i.e., napping). The
petitioner also states that in the 1980's, although few significant
events were attributed to drug or alcohol abuse, the NRC took action to
reduce the risk of an accident caused by degraded human performance.
Specifically, the NRC implemented a Fitness-for-Duty rule that includes
individual and corporate sanctions. The petitioner requests that the
NRC take comparable steps to prevent degraded human performances
resulting from fatigue.

The Petitioner's Proposed Amendments

The petitioner recommends the following amendments to 10 CFR Part
26.
(1) The following limits apply for personnel performing safety-
related work:
(a) During non-outage periods:
(i) 60 hours per week, and
(ii) 108 hours in two weeks.
(b) During outage periods ¹:
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\1\ Outage periods are defined as the 48 hours prior to reactor
shutdown, the duration of the shutdown and the 48 hours after
synchronizing to the grid.
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(i) 72 hours per week, and

[[Page 67204]]

(ii) 132 hours in two weeks.
(c) The maximum annual limits ² as a percentage over
2080 hours are:

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Shift workers
Year ending -------------------------------- Non- Roving crews
Licensed Non-licensed shiftworkers
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Dec 31, 2003 ³.................................. 20 20 30 30
Dec 31, 2002.................................... 25 20 35 35
Dec 31, 2001.................................... 30 25 40 40
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(d) No part of a 16-hour shift shall occur between the hours of 11
pm and 7 am, except for turnover.
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\3\ And all subsequent years.
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(e) No more than two 16-hour shifts shall occur in a rolling 7-day
period. The first 16-hour shift shall be followed by a 16-hour rest
period. The second 16-hour shift shall be preceded by a 24-hour rest
period. The rest periods may be combined.
(f) No more than 24 hours in a 48 hour period.
(g) The limits apply to an individual regardless of work location
or employer.
(h) Turnovers:
(i) A turnover time of 1 hour (1\1/2\ hours outage) may be
allocated in any manner between an individual's oncoming and offgoing
turnovers. Any balance of time remaining from turnover shall not be
used for other purposes.
(ii) Exceeding the turnover time limit shall not constitute
violation of the working hour limits provided:
(I) The condition is entered into the Licensee's Corrective Action
program, and
(II) There is no more than one occurrence per individual per week.
(iii) The turnover time allowance shall only apply to written
turnovers conducted face-to face.
(2) The following exceptions apply to the work hour limits of
paragraph (1) provided the licensee takes action to minimize the
effects of fatigue on human performance. Such actions may be
demonstrated by compliance with paragraph (3) in addition to increased
supervisory oversight.
(a) Activation of the Emergency Plan under 10 CFR 50.47,
(b) For those plants which shutdown for severe weather, the limits
are suspended from the beginning of the power reduction until the
severe weather has passed,
(c) The transition to Daylight Savings time in the Fall. No showing
of minimization of fatigue is required for this exemption.
(d) Plant transients, typically large unplanned power changes or
initiation of major Engineered Safety Features. Avoidance of Technical
Specifications required shutdowns is not a transient covered by this
exemption.
(e) For extended shutdown, the biweekly limit increases to 144
hours per week (weekly remains at 72 hours) provided:
(i) Prior to restart or fuel load, a plan is in place to ensure
adequate rest for personnel performing critical tasks. Critical tasks
are on a higher tier than safety-related work and are physical and
administrative tasks directly related to fuel load and startup of the
primary and secondary plant. Critical tasks would typically be those
related to fuel load, primary and secondary system fill and vents,
safety-related system testing, plant heatup and reactor startup
(through the reaching of full power).
(ii) The role of fatigue is specifically and promptly evaluated for
all-- ⁴
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\4\ This includes events on other units of multi-unit sites if
the personnel are under the extended outage provision.
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(I) Events classified as Conditions Adverse to Quality under 10 CFR
part 50, Appendix B, Criterion XVI,
(II) Events classified as Conditions Adverse to Quality under 10
CFR part 50, Appendix B, Criterion XVI and attributed to personnel
error,
(III) Reportable events of 10 CFR parts 20 and 50,
(IV) OSHA recordable injuries,
(V) Traffic accidents involving employees on their way home from
work ⁵
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\5\ Letter from D. Lochbaum, Union of Concerned Scientists to
Chairman Jackson, NRC, March 18, 1999.
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(3) Training and monitoring of fatigue.
(a) Licensees shall provide initial and continuing fatigue
mitigation training to personnel performing safety-related work, their
supervisors and managers. This training shall be developed in
accordance with the systems approach to training of 10 CFR 55.4. At a
minimum this training will cover:
(i) Effects of diet, gender, and age on fatigue,
(ii) Importance and ways to maximize rest in off-hours,
(iii) Symptoms of major sleep disorders, and
(iv) Other items as determined during the rule comment period.
(b) Licensees shall provide training to supervisors of personnel
performing safety-related work in the monitoring and detection of
fatigue.
(4) Section 26.20, ``Written Policy and Procedures,'' should be
revised to remove the word ``fatigue'' from:
``Licensee policy should also address other factors that could
affect fitness for duty such as mental stress, fatigue and illness.''
(The purpose of this change is to eliminate conflicts with the
prescriptive working hour limits and inclusion of the word ``fatigue''
in a statement that is essentially only a recommendation as indicated
by the word ``should''.)
(5) A new definition should be added to 10 CFR Part 26 for the term
``Working Hours:''
Working Hours--All hours performing safety-related services for the
licensee while on property owned or controlled by the licensee. This
includes training and meetings. Breaks, paid, or unpaid, are also
included in the calculation of working hours for fatigue. This is
appropriate since fatigue is related to several factors, including time
since awakening.

Proposed Revisions to NRC Form 396 and 10 CFR Part 55

NRC Form 396 and 10 CFR Part 55 should be revised to require self-
disclosure and evaluation of known sleep disorders.
(6) Other Changes: A full set of examples ranging from non-cited to
Level I violations should be provided in the Enforcement Manual.

Bases for Proposed Changes

Weekly/Biweekly

The petitioner states that the weekly and biweekly limits are to
prevent cumulative fatigue over the short-term. A 60-hour limit allows
5 twelve-hour shifts or 7 eight-hour shifts. The biweekly limit would
limit one of the weeks to 48 hours. The 108-hour total is based on
limiting the total hours worked for twelve hour shifts to a

[[Page 67205]]

reasonable number and ensuring those working eight-hour shifts have at
least one day off every two weeks.

Annual

The petitioner states that the annual limits address longer-term
cumulative fatigue and are based on NUREG/CR-4248, ``Recommendation for
NRC Policy on Shift Scheduling and Overtime at Nuclear Power Plants,''
⁶ which recommended limiting overtime to 2,260 hours per
year. The petitioner specifies that the maximum allowed by this
petition exceeded this amount but it is not likely that the limit of
2260 hours could be reached. According to the petitioner, the table
includes a workdown curve for each of the categories to ensure that
some amount of immediate relief is provided while allowing a gradual
transition period. The shiftworker limits are lower to allow for the
impact of rotating shiftwork, constant disruption of circadian rhythms
and working during the pre-dawn trough in performance. The licensed
operator curve is more gradual to allow more time to increase the
number of operators, if the licensee chooses to do so. The roving crew
limits are needed to prevent multi-site utilities from almost
constantly having people move from site to site using the outage limits
on working hours.
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\6\ Battelle Pacific Northwest Laboratories, Richland, WA July
1985.
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16-Hour Shifts

The petitioner states that the 16-hour shift limits address acute
fatigue. The petitioner offers that a substantial amount of first- and
second-hand experience is available to him that shows that any 16-hour
shift involving a midshift is foolhardy. The petitioner offers the
following scenario for a 16-hour shift from 3 pm to 7 am.

Assume the worker arises at 8 am, after a restful sleep, on the
day he is to work. A nap prior to 3 pm will be difficult, absent the
use of sleeping aids, since sleeping during the day is not natural
and the worker should still be rested from the previous night. Near
the end of the shift, the worker will have been awake for almost 24
hours.

The petitioner states that Australian researchers ⁷ show
that after 24 hours awake, the performance degradation is equivalent to
a Blood Alcohol Content of 0.10%. Additionally, the petitioner states
that with the increase in online maintenance, midshifts are no longer
the quiet times they were a few years ago and that although the
increased workload provides increased stimulation, stimulation is no
substitute for rest. The petitioner believes the increased activities
provide more opportunities for mishaps.
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\7\ Nature, Vol. 388, July 17, 1997 pg 235.
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The petitioner offers a similar scenario for a worker who rises at
8 am and works on a shift from 11 pm to 3 pm. The petitioner states
that at the end of the shift, the worker will have been up for 31 hours
with a 3-hour nap. The petitioner states that although short naps (30
minutes) may have some restorative ability, they must be taken when
tired. The petitioner notes that this would qualify as a ``split rest
period'' under NTSB rules and that NTSB is requesting the DOT to
abolish split rest periods due to lack of effectiveness.

Individual Basis

The petitioner believes that limiting hours worked, regardless of
employer or location, is necessary to ensure that contractors or others
are not excessively fatigued.

Turnover Limits

The petitioner states that turnovers require special consideration.
The petitioner believes that orderly transfer of information from one
shift to the next is essential for plant safety and that it is as
equally important that the work hours are minimized and the turnover
allowance is not abused. The petition states there is substantial
potential for abuse of the turnover allowance since some may see it as
a ``free'' extra hour. For example, a maintenance worker or engineer
(personnel who typically do not have written turnover) could simply
tack on an hour to their workday, absent a specific prohibition. The
petitioner also notes that abuses are possible for personnel using
written turnovers, i.e., if a turnover is normally completed in 15
minutes, the extra 45 minutes shall not be used for other
administrative duties. The petitioner states that this is consistent
with the requirement to control working hours to limit the effect of
fatigue.
The petitioner further states that there are times when plant
events require extended turnovers. The once a week exception is judged
adequate based on the petitioner's experience as an on-shift SRO. The
petitioner indicated that the requirement to enter the condition into
the Licensee's Corrective Action program is required to provide both
visibility and tracking, the assumption being that a high number
indicates either an excessive administrative burden or an individual
performance issue.

Exemption

The list of exemptions is considered reasonable based on the
petitioner's experience. It is anticipated to grow slightly during the
rulemaking phase as more experience is added. The overriding goal of
the exemptions is that they be limited both in circumstance and number.
The purpose is to avoid the ambiguity of Generic Letter 82-12.

NRC Form 396 and 10 CFR Part 55

The petitioner believes this revision would allow the NRC to issue
conditional licenses with the appropriate compensatory actions. The
petitioner states that this approach was adopted by the Coast Guard.

Other Changes

The petitioner believes that a full set of examples in the
Enforcement Manual would provide clear guidance to NRC staff on the
appropriate level of sanctions required.

Reference Documents

The petitioner states that documents used in support of this
petition were readily available on websites of the NRC and the NTSB and
in the NRC Public Document Room. The petitioner also attached two
documents that in his view summarize the hazards of fatigue. They are
Overtime and Staffing Problems in the Commercial Nuclear Power
Industry, Union of Concerned Scientists (March 1999), and Evaluation of
U.S. Department of Transportation Efforts in the 1990s to Address
Operator Fatigue, NTSB Safety Report NTSB/SR-99/01 (May 1999).

Dated at Rockville, Maryland, this 24th date of November 1999.

For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-31192 Filed 11-30-99; 8:45 am]
BILLING CODE 7590-01-P

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