ML20006D308

Requests Partial Stay of Commission Final Rule & Statement of Policy Re Fitness for Duty as Applied to Certain Employees at Plant,Pending Review of Matter in Us Ninth Circuit Court of Appeals

ML20006D308
Person / Time
Site:	Diablo Canyon
Issue date:	02/02/1990
From:	Dalzell T INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
To:	Chilk S, Julian E NRC OFFICE OF THE SECRETARY (SECY)
References
CON-#190-9801 FDR, NUDOCS 9002120351
Download: ML20006D308 (2)

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February 2,1990 workm. An cm 4

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VIA TELECOPIER Joek McNally .

I Samuel J. Chilk, Secretary ^*'* W  !

ATTENTION: Emil Julian .

Heuerd sth '

Chief, Docketing and Service Branch

• Unitec States Nuclear Regulatory Commission l Washington, D.C. 20555 RE: Histt et al vs. Pacific Gas and Electric 1 Company, United States Nuclear Regulatory Commisskm, Intervenor (United States District Court, Northern District of California Case No.

C 894569 FMS) 1

Dear Mr. Chilk:

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Pursuant to. Rule 18 of the Federal Rules of Appellate Procedure, the  ;

. plaintiffs in the above-noted case hereby apply for a partial stay of the

. Commission's Final Rule and Statement of Policy concerning Fitness-for-Duty Programs as applied to certain employees at the Pacific Gas and Electric Company's Diablo Canyon Nuclear Power Plant in A~vila Beachi California, pending review of this matter in the Ninth Chcult Co:.rt ,

' of Appeals.

Specifically, plaintiffs request that the Commission stay unanr.ounced tas:e ,

imposed in a random manner (26 CFR 26.24(a)(2)) for Pacific Ces n Electp.c Company employees at the Diablo Canyon Nuclear Power Plaw wlo we members of the collective bargaining units re:rresented by Locr.1 1245 of ti- International Brotherhood of Electrical Worters, AFL-CIO, and the Engineers - and Scientists of California, MEBA, AFL-CIO. By this applics%, the parties do not. seek stay of any other portions of the -

Comminston Fitness-for-Duty rule, nor do they seek stay of the random testing portion of that rule for any employees other than Diablo Canyon employees.

On December 29, 1990, Judge Thelton Henderson of the United States District Court, Northern District of California, issued a temporary L restraining order prohibiting the Pacific Gas and Electric Company from l conducting random testing of the employees for whom this application ~ is filed. Shortly thereafter, Judge Fern Smith granted a motion for intervention filed by the United States Nuclear Regulatory Commission.

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l On January 31, 1990, Judge Smith heard argument in an Onler to Show Cause Re:

Preliminary Injunction, and announced her intention to trwfor the litigation to the s Ninth Circuit Court of Appeals. When Judge Smith actually transfers the case to the

. Ninth Circuit, she will dissolve the temporary restraining order which has been in effect since December 29,1989, making this request for a stay necessary.

In support of this application for a stay, the applicants irmwate by reference the _

arguments which they have made in the pending litigation. Briefly summarizing these arguments, applicants note as follows: (1) a random urine collection and testing -

program constitutes substantial invasion of employee rights, which may be '

surrendered only for cor@lling and pressing reasons: (2) the safety ecooni of Diablo Canyon is excellent, and the plant design features, redundancy of safety systems and .

work procedures on vital equipment, and extensive training for unexpected

_ equipment and personnel malfunctions, all leave Diablo Canyon virtually fail-esie as U far as the actions of a single individual are concerned; (3) the rule as applied to Diablo Canyon covers hundreds of workers who do not haw access to radiologically controlled areas or vital access areas of the plant, and whose work never brings them ,

into contact with- systems or equip:nent whose failure could create challenger to safety systems or complicate the response to off-normal conditions; (4) there is no evidence ot drug use or alcohol abuse by Diablo Canyon employees; (5) tise drug testing technology to be used by PG&E does not, with the exception of alcohol, rueasure a waher's impairment, and' drug testing should not be used to test the

" integrity" of the workforce; and (6) given the claimed deterrent value of the types of testing which are not being challenged (pre-employment testing. for-.cause testing, post-accident testing, and testing based on reliable information of drug use),

and the absolute paucity of empirical evidence which would establish.that random drug testing has ever significantly deterred drug use, random testing is not necessary -

to deter future drug use by Diablo Canyon employees. For these reasons, more fully articulated in the documems on file with the United States District Court, Northern District of California, applicants believe *lat the random testing portion of the rule i is unconstitutional as applied to them ano for that reasons request a stay pa=HM review by the Ninth Circuit.

Copies of this application are being served by telecopier simultaneously with this i filing . on Lawrence J. Chandler, Assistant General Counsel for Hearings and Enforcement, United States Nuclear Regulatory Commission, and on lathan .T.

L Annand, lead counsel for the Pacific Gas and Electric Company in the litigation described above.

1 i Thank you for your consideration of this application.

Sincerely, L

M Tom Dalz Attorney for Applicants Steven A. Hiett elal.

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