01-13896. License No. DPR-26; Consolidated Edison Company of New York, Inc.; Receipt of Petition for Director's Decision Under 10 CFR 2.206

Notice is hereby given that by Petition dated April 24, 2001, as supplemented by letter dated May 3, 2001, Mr. David A. Lochbaum, on behalf of Union of Concerned Scientists, requested that the Nuclear Regulatory Commission (NRC) issue a Demand for Information (DFI) to licensees that use security personnel supplied by Wackenhut Corporation (Wackenhut), requiring them to provide a docketed response explaining how they comply with the requirement of Title 10 of the Code of Federal Regulations (10 CFR) section 26.10 that licensees “provide reasonable measures for the early detection of persons who are not fit to perform activities within the scope of this part” and the requirement of 10 CFR 26.20 that “licensee policy should also address other factors that could affect fitness for duty such as mental stress, fatigue and illness.”

The petitioner also requested that the DFI should require each licensee to generally describe its policy for the aforementioned factors and to explicitly describe its policy for these factors as applied to the security personnel supplied by Wackenhut.

As a basis for this request, the petitioner stated that:

“An individual employed by Wackenhut Corporation and assigned duties as a security officer at Indian Point 2 was fired on June 26, 2000 * * *. The individual had worked five straight 12-hour shifts [(12 hours on shift followed by 12 hours off for 5 straight days)] and declined to report for a sixth straight 12-hour shift because he reported to his management—in writing—that it would be “physically and mentally exhausting.” The individual reported to his management—in writing—that he was fully aware of his condition and “would not want to be negligent in performing [his] duties as a security officer.”

The security officer had unescorted access to Indian Point 2 and thus was covered by 10 CFR part 26 as specified in Section 26.2 * * *.”

The petitioner also indicated that Wackenhut employees are required by terms of their employment application, Collective Bargaining Agreement, and the Security Officer's Handbook to report to work when required.

Thus, the petitioner contends that a worker employed by Wackenhut at an NRC-licensed facility reported to his management that he felt unfit for duty, declined to report for mandated overtime, and was terminated.

The petitioner also stated that “10 CFR 26.20 requires all licensees to have formal policy and written procedures for factors that could render plant workers unfit for duty. Fatigue is specifically mentioned in 10 CFR 26.20.” The petitioner contends that the Wackenhut's contractual right conflicts with the Federal regulations in 10 CFR 26.10 (a) and (b) and that in the subject case, the individual essentially provided “reasonable measures for early detection” of a condition rendering him unfit to perform activities within the scope of part 26. The petitioner further stated that rather than respecting the individual's judgment or seeking another opinion by a Medical Review Officer or other health care professional, Wackenhut fired that individual.

This Petition has been accepted for review pursuant to 10 CFR 2.206 of the NRC's regulations, and has been referred to the Director of the Office of Nuclear Reactor Regulation for action. In accordance with Section 2.206, appropriate action will be taken on this Petition. The Petition and the NRC's acknowledgment letter are available in ADAMS for inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and from the ADAMS Public Library component on the NRC's Web site, http://www.nrc.gov (the Public Electronic Reading Room) at Accession Nos. ML011150296 and ML011410223, respectively. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to [e-mail].

Dated at Rockville, Maryland, this 29th day of May 2001.

For the Nuclear Regulatory Commission.

Jon R. Johnson,

Deputy Director, Office of Nuclear Reactor Regulation.