ML20006D772

PG&E Response in Opposition to Application for Stay.* Stay of Random Drug Testing Under NRC Fitness for Duty Rule Should Be Denied on Basis of Untimeliness & Challenge Having No Merit.W/Proof of Svc

ML20006D772
Person / Time
Site:	Diablo Canyon
Issue date:	02/08/1990
From:	Whelan M PACIFIC GAS & ELECTRIC CO.
To:	NRC COMMISSION (OCM)
References
CON-#190-9817 FDR, NUDOCS 9002150045
Download: ML20006D772 (11)

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4 6 6 j b J UNITED STATES OF AMERICA 4_ > I D

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION y{,3 ~ s ew '-

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In the Matter of: ) gf b

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) Docket Nos. 50-275 g PACIFIC GAS ~AND ELECTRIC ) 50-323 COMPANY, ) (Fitness for Duty Rule)

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(Diablo Canyon Nuclear )

Power Plant, Units 1 and 2)) <

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PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE IN OPPOSITION TO APPLICATION FOR A STAY I. PRET.IMINARY STATEMENT l The plaintiffs in Hiett', et al. v. Pacific Gas and Electric Comoany, et al. (United States District Court, Northern District of California, Case No. C 89-4569 FMS)u apply to the Nuclear Regulatory Commission (NRC) for-a stay of. random drug testing under the NRC's Fitness-for-Duty

' Rule. (See 10 C.F.R. 26). The stay is requested pending l

review of plaintiffs' case by the United States Court of Appeals for the Ninth Circuit. $

l l v The seven named plaintiffs are Steven A. Hiett, Charles R.

Runfola, Joseph E. Lykes, Terence C. Wesley, Debra L.

Encallado, Kevin C. Moore, and Julie McRae. Plaintiffs >

l= purport to represent a class of 600-(out of approximately-2,700) personnel who have " unescorted access" rights at L Pacific Gas-and Electric ' Company's (PG&E) Diablo Canyon Nuclear Power Plant in California.

On February 5, 1990, the district court transferred the case to the United States Court of Appeals for the Ninth

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Circuit. The case number in the Ninth Circuit is 90-15131.

9002150045 900208 DR ADOCK 0500 5 p

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Plaintiffs haye also applied for a stay from the Ninth Circuit. (See Petitioners' Emergency Motion Under Circuit ,

Rule 27-3.) In their brief to the Ninth Circuit, plaintiffs have' characterized the NRC's support for random testing as

" virulent," and have concluded that "it is highly unlikely >-

that the NRC will grant the stay." (Id. at p. 2.)

II. STATEMENT OF THE CASE Plaintiffs filed their complaint in the district court '

on December 28, 1989, seeking a preliminary injunction to The enjoin PGEE from complying with the NRC's rule.

complaint did not'name the NRC as a party.

Plaintiffs admitted that PG&E is required by the NRC's f

regulations to implement a random drug testing policy.-

(Complaint, 7:20-22). They further conceded that PG&E's policy strictly. complies with the NRC's regulations.

(Complaint, 7:23-24.) Thus, plaintiffs' real dispute is not with PG&E but with the NRC's regulations. t On December 29, 1989, the district court entered a-temporary restraining order, and scheduled a hearing on the .

1990.

-request for preliminary injunction for January 10, Both

-The NRC was later permitted by the c'ourt to intervene.

I the NRC and PG&E filed motions to dismiss and oppositions to plaintiffs' application.

On February 5, 1990, the district court filed an order L

transferring the case to the court of appeals due to lack of The temporary jurisdiction in the district court.

restraining order was dissolved upon issuance of the order.

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Inoa letter dated February 2, 1990, one of plaintiffs'-

f attorneys, a staff attorney for the International l i

L l Brotherhood of Electrical Workers, Local 1245, applied.to .

the NRC for the stay at issue, t

' III. STATEMENT OF FACTS ,

The Atomic Energy Act of 1964, Pub. L.83-703, 68 Stat. .

919, codifiud at 42 U.S.C. 55 2011 at mag., as amended, establishes a comprehensive regulatory framework governing the-development and use of nuclear power for civilian purposes. The NRC is charged "with preliminary >

' responsibility to ensure, through'its licensing and-i i

. regulatory functions, that the generation and transm ss on of nuclear power does not unreasonably threaten the public r U.S. Nuclear Reculatory welfare." Countu of Rockland v.

Comm'n, 709 F.2d 766, 769 (2d Cir.), cert. denied, 464 U.S.

To carry out its mandate as the primary 993 (1983).

guarantor of the public welfare, including safety, from the generation and transmission of nuclear power, "the NRC is empowered to promulgate rules and-regulations governing the 4 24 construction and operation of nuclear power plants. .

U.S.C. 5 2201(p). . . .

Id. (Citation omitted.) .

.8 Concerned about the impairing effects of the-use of ,

' illegal and legal drugs and intoxicants on the ability of persons working in nuclear power plants, the NRC published

" fitness-for-duty programs",

proposed regulations mandating for' employees of NRC licensees including PG&E on 53 Fed. Reg. 36795. These proposed September 22, 1988.

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regulations required licensees to develop and implement j I

programs designed to ensure that their employees who worked J i

in nuclear power plants were not using substances which  ;

could impair their physical ~or cognitive abilities. Among the requirements proposed were mandatory urinalysis programs designed to detect substances that impair performance.

Interested parties had 60 days in which to comment on the proposed regulations. The HRC received 378 comment letters.

during the comment period. In addition, a public hearing on the proposed regulations, at which comments were received, was held on October 17, 1988.

On June 7,.1989, the NRC responded to.the comments and promulgated fina1' regulations requiring all nuclear power plant licensees to develop fitness-for-duty programs. 54 Fed. Reg. at 24468. These programs must include mandatory random. urinalysis testing for impairing drugs and alcohol.

54 Fed. Reg. at 24497 (codified at.10 C.F.R.-5 26.24).

Tlut regulations took effect on July 7, 1989~. ,

The requirements imposed on licensees by the' regulations, including the provisions requiring mandatory random urinalysis chemical testing, were required to be implemented by licensees no  ;

later than 180 days after July 7, 1989, or January 3, 1990.

54 Fed. Reg. at 24495 (codified at 10 C.F.R. $ 26.2(C)).

IV. ARGUMENT A. The Apolication For A Stav Is Not Timely.

Plaintiffs have specifically applied to the NRC for a stay pursuant to Rule 18 of the Federal Rules of Appellate s

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- Procedure. Rule 18 provides "for a stay of a decision or order of an agency pending direct review in the' court of appeals. . .. .

" An application for such a stay "shall ordinarily.be made in the first instance to-the agency."

Here, there is no decision or order of the NRC pending direct review in the Ninth Circuit, so the application for a At best, the stay under Rule 18 is without merit.

application is not timely.

The Hobbs Act, 28 U.S.C. S 2342(4), vests exclusive jurisdiction for a petition seeking review of a-final regulation of the NRC. Any party aggrieved by a final NRC-ragulation, reviewable under the Hobbs Act, has 60 days from i

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I .the date of the regulation to file a petition for rev ew.

i ,.j 28 U.S.C.~9 2344.

The Ninth' Circuit has held that the 60-day time limit ,

-to seek-preenforcement review under the Hobbs Act-is  !

jurisdictional, and if a petition for review is filed after-the time limit has expired, the court of appeals lacks L ,

jurisdiction over the challenge. California Ass'n of the Physically Handicaoned v. Federal Communications Comm'n, 833 F.2d 1333, 1334 (9th Cir. 1987) (dismissing challenge to Federal Communications Commission regulations brought under the Hobbs Act); accord Natural Resources Defense Committee

v. Nuclear Reaulatory Comm'n, 666 F.2d 595 (D.C. Cir. 1981)'.

The NRC regulations at issue here were promulgated in 1989, and took effect on July 7, 1989.

final form on June 7, 1989, Plaintiffs' action was not filed until December 28,

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c4 almost_four months late and in the wrong. court. Since even  !

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j a the court of appeals lacks jurisdiction at this time over i

L the complaint, there is no reason or' basis for the NRC to grant a stay "pending review" by the court of appeals.

. B. The Attack On Random Drug Testing Is  ;

• c Without Merit  ;

e Plaintiffs attack the constitutionality of random' drug testing. Their challenge is without merit.

In Skinner v. Railway Labor Executives Ass'n, 109 S.Ct.

1402 (1989), the Supreme Court held that federally-required-post-accident drug testing of railway crew members was consistent with the Fourth Amendment, even absent a showing i

that the individual subject to the test was suspected of drug use or responsibility for the accident. In National Treasurv Employees Union v. Von Raab, 109 S.Ct. 1384 (1989),

the Supreme Court held that drug testing of Customs employees, prior to their selection for transfer to sensitive positions involving the carrying of firearms, was consistent with the Fourth Amendment, despite the absence of any_ showing that the individual was suspected of-drug use.

-In both cases, the Court held that the employees had a reduced expectation of privacy either because of their employment in a highly regulated industry or the particu-larly sensitive nature of their jobs. Balanced against the reduced expectation of privacy, the Court held that there was a compelling public interest to justify the testing.

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E These decisions govern here. The nuclear power .;

industry-is already pervasively. regulated for reasons of public safety. Access to nuclear power plants is carefully a

controlled and employees undergo a thorough background check and medical and psychological evaluation involving a sig- .

nificant degree of' intrusiveness before being granted unes-corted access to the protected area of the plant. In addi-tion, the testing procedures required by the NRC closely-

- follow those approved by the Supreme Court. Thus, the employees' reasonable expectations of privacy are significantly diminished, and the intrusion occasioned by  ;

the testing ~is minimal.

On the other hand, the governmental interest at stake is compelling: the assurance of safety at nuclear power k

plants. While the safety-record of nuclear power plants in ,

m this countryfis excellent, the need to assure that public s

health and safety are protected in paramount and undeniable.

See-Pacific Gas and Elect. v. Eneray Resources Comm'n., 461 U.S. 190 (1983). The government has no-more compelling interest than in ensuring that employees who have unescorted  ;

access to protected areas of nuclear plants are not impaired when performing their jobs, 9 Furthermore, the circumstances attendant to-and pro-cedural safeguards embodied in the testing program upheld in ,

Skinner exist in the NRC's random testing program.

We observe that the Ninth Circuit has denied without published opinion a motion to enjoin random drug testing of

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d; flight crews under regulations promulgated by the Federal -

Aviation Administration. Bluestein v. Skinner, unpublished h order, Nos. 88-7503 et al. (9th Cir., Dec. 14, 1989.) In l

0 addition, other courts of appeal-have also upheld random  !

<- testing programs. Guiney v. Roacha,.873 F.2d 1557 (1st Cir.

1989); Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989);

National Federation of' Federal' Employees'v. Chenev, 884 F.2d

.l 603 (D.C. Cir. 1989); American Federation of Gov. Emnloyees .

I v. Skinner, 885 F.2d 884 (D.C. Cir. 1989).

A circuit court opinion handed down before Skinner and ,

cited favorably by the Supreme Court is particularly significant. The Eighth Circuit in Rushton v. Nebraska Public Power District, 844 F.2d-562 (8th Cir. 1988), re-( jected the same challenge presented by plaintiffs here and

, upheld random drug testing for employees of nuclear power plants. In so holding, the. Rushton court noted:

. . . appellants' expectation'of privacy was already significantly diminished by virtue-of working at (the nuclear power plant). 844 F.2d at 566.

4 The Rushton court concluded:

The determination of whether or not individualized suspicion- will be re-quired before drug testing is allowed ,

must be made with reference to the cir-cumstances of each case. It is a factor to be weighed when balancing the state and private interests. In this case, where the state interest is so great and the private interest so diminished, we i

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i ' g i, d hold individual suspicion is not re- .

quired. 844 F.2d at 566.2' )

It is apparent that workers in the nuclear power l industry have a sharply diminished expectation of privacy; and random drug testing of these workers constitutes a

. minimal invasion of privacy which cainnot stand against the )

compelling state interest in maintaining safety at all 5 nuclear power plants. 4 Plaintiffs contend'that there is no evidence of drug use or alcohol abuse'at Diablo Canyon. Assuming arguendo i

that-this contention is true, it has no legal significance.

The decisions sustaining employee drug testing have not -

required evidence of existing drug use among the population

to be tested. Significantly, even Justice Scalia, in his 1 dissenting opinion in Von Raab, supra, conceded'that the l

k. paucity of evidence regarding drug abuse among affected j I

t f 2' Plaintiffs have previously argued -that the situation at-W Diablo Canyon is different from that at the. nuclear plant in Rushton because they are completely separate facilities .

whose circumstances must be addressed separately. However,-

the Supreme Court in Von Raab, dismissed a similar spurious .

L argument in analogizing to the constitutionally permitted-l searches of luggage and passengers at airports. The Court l- stated: ,

. . . we would not suppose that - if the l validity of these searches be conceded, l~ the Government would be precluded from conducting them absent a demonstration of '

danger as to any particular airport or airline.- It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive socie-tal problem from spreading in the par-ticular context. 109 S.Ct. at 1395

n. 3.

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workers,- whicih- he found invalidated the drug testing program W in that. case, would not invalidate similar drug testing at a- -

nuclear power plant:

Perhaps such a generalization (the exis-tence of a pervasive social problem) would suffice if the workplace at issue could produce such catastrophic social harm that no risk whatever is tolerable

---the secured areas of a nuclear power plant, _for example . . .. (Citations

-omitted.)- 109 S. Ct. at 1400 (empnasis added).

Random drug testing under the circumstances here meets a compelling state interest and is constitutionally valid. '

CONCLUSION Based upon the foregoing, PG&E respectfully requests that the application for a stay be denied.

DATED: February 8, 1990 IATHAN T. ANNAND MAUREEN L. FRIES JESSICA LORING CHRISTCPHER J. WARNER MICHAEL D. WHELAN P. O. Box 7442 San Francisco, CA 94120 (415) 973-7012

'By l '

f MICHAEL D. WHELAN Attorneys for PACIFIC GAS AND-ELECTRIC COMPANY

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g b Q PROOF OF SERVICE BY FEDERAL EXPRESS AND PANAFAX N Y I, the undersigned, state that I am a -

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the United States and employed in the City and Count sa .

Francisco; that I am over the age of eighteen (16) years a party to the within causes that my business address is 77 Beale-Street, San Francisco, California 94106; and that on that date set out below I caused a true copy of the attached ,

PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE IN OPPOSITION TO APPLICATION-FOR A STAY to be served by Federal Express and by Panafax on the Collowing Bernard Bordenick, Atty.

Sanford N. Nathan U. S. Nuclear Regulatory Comm.

Neyhart, Anderson, et al. 1 White Flint North 568 Howard St., 5th Floor

-San Francisco, CA 94120 11555 Rockville Pike--Mail Stop 15B18 Rockville, Maryland 20852

~ Tom Dalzell, IBEW-3063 Citrus Circle Charles E. Mullins, Attorney,ission Walnut Creek, CA 94596 U. S.-Nuclear Regulatory Comm 1 White Flint North- ,

U. S. Nuclear Regulatory Comm. 11555 Reckville Pike Office of the Secretary Rockville, Maryland 20852 Attn: Docketing and Services Branch 1 White Flint North 11555 Rockville Pike, Rockville, Maryland 20852 I certify under penalty of perjury that the foregoing is true and correct. Executed at 77 Beale Street, e ruary 8, 1990 San Francisco, California, on ,

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