ML20006D826
| ML20006D826 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/12/1990 |
| From: | Bodenick B NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#190-9841 FDR, NUDOCS 9002150113 | |
| Download: ML20006D826 (45) | |
Text
I 6
00Lh01ED i
UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION r-
% FG 12 P2:08 BEFORE THE COMMISSION QFFfCE OF SECR(.tARY h
00cKimG A (.tuvicI:
( M CH l
In the Matter of
-o f'
PACIFIC GAS AND ELECTRIC COMPANY
.fff
~
(Fitness for Duty Rule)
(DiabloCanyonNuclearPower Plant, Units 1and2)
)
i t
i NRC STAFF RESPONSE TO FEBRUARY 5,1990 COMMISSION ORDER l
l i
i i
Bernard M. Bordenick 3
~
Counsel for NRC Staff t
February 12, 1990 9002150113 900212 PDR ADOCK 05000275 G
PDR l-
}66,
,1 5 0F AMERICA TORY COMMISSION
__ COP 911SS10N
' i.
t l
Docket Hos. 50-275 50-323 h]l (Fitness for Duty Rule)
I
=
ilARY 5, 1990 COMMISSION ORDER Bernard M. Bordenick Counsel for NRC Staff i
[EI UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket Nos. 50-275 o -
PACIFIC GAS AND ELECTRIC COMPANY 50-323 (Fitness for Duty Rule) i (Diablo Canyon Nuclear Power Plant, Units 1and2)
S NRC STAFF RESPONSE TO FEBRUARY 5, 1990 COMMISSION ORDER t
Bernard M. Bordenick Counsel for NRC Staff 5
February 12, 1990
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 1'
In the Matter of:
l 1
PACIFIC GAS AND ELECTRIC COMPANY h
Docket Nos. 50 275 h
50 323 1
)l (Diablo Canyon Nuclear Power
}
(Fitness for Duty Rule)
Plant, Units 1 and 2) i
)
NRC STAFF RESPONSE TO FEBRUARY 5. 1990 COMMISSION ORDER J
i I.
INTRODUCTION By letter dated February 2,1990, addressed to Samuel J. Chilk, Secretary, United States Nuclear Regulatory Commission, the Attorney for plaintiffs in an 5
action styled Hiett et al. vs. Pacific Gas and Electric Company. United States Nuclear Reculatory Commission. Intervenor (United States District Court, Northern District of California Case No. C 89 4569 FMS), (plaintiffs) applied to the Commission, pursuant to Rule 18 of the Federal Rules of Appellate Procedure, 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 Avila Beach, California, pending review of this matter in.the Ninth Circuit Court of Appeals.
Specifically, plaintiffs requested that the Commission:
... stay unannounced tests imposed in a random manner (26 (sic) CFR 26.24(a)(2)) for Pacific Gas and Electric Company employees at the Diablo Canyon Nuclear Power Plant who are members of the collective bargaining units represented by local 1245 of the International Brother-hood of Electrical Workers, AFL-CIO, and the Engineers and Scientists of California, MEBA, AFL-CIO.
2-For the reasons set forth below, the February 2,1990 letter is properly treated as a request, filed pursuant to 10 C.F.R. 6 26.6, for an exemption from the requirements of 10 C.F.R. I 26.24(a)(2) at the Diablo Canyon Nuclear Power 2
Plants, notwithstanding the language of the February 2 letter, since there are l
no adjudicatory matters presently pending before the Commission that could be l
r the subject of a stay.
So treated by the Commission, it should be denied.
11.
BACKGROUND The Diablo Canyon licensee, as every other operating reactor Itcensee subject to the Commission's jurisdiction, must presently comply with the provisions of the Commission's Fitness-for Duty Program set out at 10 C.F.R.
i Part 26 including i 26.24(a)(2) of that rule. Plaintiffs, in an effort to bar application of the rule insofar as it requires random testing of them, brought t
suit in the U.S. District Court for the Northern District of California on L
December 79, 1989, seeking, among other relief, the issuance of a temporary restraining order.
This relief was granted.
The Commission's motion to 7
intervene in that proceeding was granted by the Court as was its motion to transfer the lawsuit to the U.S. Court of Appeals for the Ninth Circuit where jurisdiction properly lies.
As an adjunct to granting the latter motion, the District Court dissolved the temporary re:: training order on February 5,1990.
In anticipation of the Court's action, Plaintiffs filed their motion before the Commission in an effort to satisfy Rule 18 of the Federal Rules of Appellate Procedure.
I 111. ARGUMENT A.
The February 2,1990 Letter Cannot be Considered as a Stay Request as There is Nothina Before the Commission to Stav j
8
3 The Commission has held that the provisions of 10 C.F.R. 5 2.788 are intended to apply to requests for stays of orders issued by the Commission or l
its adjudicatory boards or the Staff while any such order or decision is pending before another part of the agency for internal review.
Its unpublished Commission Order of October 17, 1989, issued in Texas Utilities Electric Comoany. et al. (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos. 50 445 OL, 50 446 OL and 50 445-CPA.1 As noted above, there are presently no adjudicatory proceedings pending before the Commission involving the Diablo Canyon licensee.
Thus, there is no adjudicatory determination for the Commission to stay and the provisions of 10 C.F.R. 5 2.788 do not apply to the g
A copy of the Commission's Order in Comanche Peak is attached.
Even if I
viewed as a request for injunctive relief. Plaintiffs' request should be denied for the reasons set forth in the Commission's Opposition to Plaintiffs' Request for Temporary Restraining Order and Order to Show Cause Re Preliminary injunction filed on' January 4, 1990, before the United States District Court for the Northern District of California, copy attached.
- lt should be noted that the standards set forth in 10 C.F.R. 6 2.788 have, nonetheless, been used as guidance by the staff in addressing other stay requests not squarely within the requirements of 10 C.F.R. f 2.788.
it appears that the plaintiffs styled their letter to the Commission as a
- stay
- request since that is what is referred to in Rule 18 of the Federal Rules of Appellate Procedure which provides in pertinent part:
t Application for a stay of a decision or order of an agency pending direct review in the court of appeals shall ordinarily be made in i
the first instance to the agency. A motion for such relief may be l
made to the court of appeals or to a judge thereof, but the motion shall show that application to the agency for the relief sought is i
not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action I
of the agency did not afford the relief which the applicant had requested.
t 6
e
c l
l
- i 8.
The February 2,1990 Letter Does Not Set Forth Any Basis for the Grant of An Exemotion Fror.1ht.frovisions of 10 C.F.R. 6 26.24(a)(2) 10C.F.R.526.24(a)(2)statesthat:
f (a) To provide a means to deter and detect substance abuse, the licensee shall implement the following chemical testing programs for persons subject to this Part:
(2) Unannounced tests imposed in a random manner. The tests must be administered so that a person completing a test is immediately eligible for another unannounced test.
As a minimum, tests must be administered on a nominal weekly frequency and at various times during the day. Random testing shall be conducted at a rate equal to at least 100 percent of the workforce.
10 C.F.R. 6 26.6 provides that:
The Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this Part as it determines are authorized by law and will not endanger life or property or the common defense and f
security and are otherwise in the public interest.
For purposes of addressing the February 2 letter, the Staff concedes that the plaintiffs are interested persons under 10 C.F.R. 6 26.6 and that the grant of. an exemption from the provisions of 10 C.F.R. 6 26.24(a)(2), if otherwise appropriate, is authorized by law.
However, the Staff submits that the February 2,1990 letter does not set forth any basis on which the Commission could base a determination that an exemption from the above quoted provision id11 not endanger life or property or the common defense and security and is otherwire in the public interest.
The only basis for the plaintiffs' request that they be exempted from the provisions of 6 26.24(a)(2), pending resolution of the litigation they have i
-g
- -, + ~,
.~,-..,,
r
i instituted, are the arguments which they have made in the pending litigation.
Those arguments, set out in a " Memorandum of Points and Authorities in Support of Request for Temporary Restraining Order and Order to Show Cause Re Prelimi-I 4
i naryInjunction", filed with the United States District Court for the Northern District of California are " incorporated by reference" into the February 2,1990 i
letter. The February 2 letter briefly summarizes these arguments as follows:
)
(1) a random urine collection and testing program co,astitutes i
substantial invasion of employee rights, which ma rendered only for compelling and pressing reasons; y be sur-i (2) the safety record 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 safe as 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 have access to radiologically controlled areas or vital access areas of the plant, and whose work never brings them into contact with systems or equipment whose failure could create challenges to safety systems or compli-cate the resp m se to off-normal conditions; (4) there is no evidence of drug use or alcohol abuse by Diablo Canyon employees; (5) the drug testing technology to be used by PG&E does not, with the exception of alcohol, measure a worker's impairment, and drug testing should not be used to test the " integrity" of the workfece; 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.
The arguments advanced by plaintiffs when considered within the context of an exemption request are essentially generic comments that many persons and t
I m
., ~,
_ ~ _
,r
_7, s.
i groups advanced when tM Fitness For Duty Program rule was under consideration by the Commission. The Comission carefully considered the many public coments i
i in determining.whether the random testir,g provisions of 10 C.F.R. f 26.24(a)(2) were needed for protection of the public health and safety. The public coments j
are summarized along with the Comission's responses in the Statement of Policy accompanying the Fitness-for-Duty regulations. 54 f_ad. Egg. 24468 al. itg. 3.tg 11m NUREG-1354 Fitness-for-Duty in the Nuclear Power Industry: Responses to Public Comments.
Additionally, the Commission issued NUREG/CR-5227-Fitness for Duty in the Nuclear Power Industry: A Review of Technical Issues (and Supple-ment I thereto).
As reflected at 54 f.td. Reg. 24488, the Commission concluded that the imperatives of safe operation of nuclear power reactors fully justified promulgation of the rule as a whole, noting support in two cases decided by the United States Supreme Court on March 21, 1989, that the rule was a proper and prudent regulatory action for the protection of the public health and safety.8 The arguments made in the plaintiffs' memorandum filed in the United States District Court for the Northern District of California are not unique to the i
8As noted at 54 f_td. Reg. 24488 The two (Supreme Court) cases were decided on March 21, 1989 in favor of drug testing as presented by the circumstances of those cases (Skinner v. Railway Labor Executives Association, No. 87-1555; and National Treasury Employees Union v. Von Etth, No. 86-1879). Neither presented issues to the Court for its consideration in the context nf the imperatives of nuclear safety nor addressed random testing.
However, the logic of those cases gives the Commission added assurance that this rule represents a proper and prudent regulatory action for the protection of public health and safety.
The citation to Skinner and RIG are 109 S. Ct. 1402, (1989); and 109 S. Ct.
1384,(1989); respectively.
4
,, + -
7 Diablo Canyon site. They are arguments that could be made with respect to any operating power reactor within the Comission's jurisdiction and were indeed
{
addressed and rejected by the Comission during the promulgation of the Fitness i
for Duty regulations." Thus, the grant of an exemption patently would not be in j
i the public interest; if the plaintiffs were exempted from the provisions of 10 C.F.R. I 26.24(a)(2), there would be no logical basis not to exclude all i
applicable power reactor employees from the provisions of the section in question.
At bottom, the Commission is being asked to assume that the plaintiffs' arguments will ultimately be adopted by the Courts (presumably through and including the United States Supreme Court) and that the provisions of 10 C.F.R.
l 6 26.24(a)(2) will be invalidated.
This is an asst. option that the Commission has already considered and rejected.
Granting the relief sought before the Comission by the plaintiffs, either through the grant of an exemption, or a stay if a stay request were properly before the Commission, would be tantamount to a finding by the Commission that 10 C.F.R. Section 26.24(a)(2) should not have been included within the Fitness-for-Duty rule in the -first place.
As 4
dThe first argument advanced was addressed in Section 18.0 of NUREG 1354 (See 18.1 Constitutionality issues).
The second argument is implicitly
- encompassed within Section 2.0 of NUREG/CR 5227. The third argument is addressed in section 4.3 of NUREG 1354.
A response to the fourth argument is found in Section 3.0 of NUREG-1354. Section 3.3 of NVREG 1354 addresses argumert 5 and Section 7.0 addresses argument 6.
With additional respect to argument 2, the same rationale could be set forth with regard to any operating reactor.
In any event, no independent evidence is presented in support of the conclusions advancedinconnectionwiththisargument. As regards argument 3, to the extent that plaintiffs argue that licensee s application of the rule encompasses people beyond the scope of the rule, the Commission would not have to consider issuance of an exemption.
! l i
amply demonstrated above, there is simply no basis in fact or law for such a i
finding.8 m
IV. CONCLUSION For the reasons set forth above, the Commission should treat plaintiffs' February 2, 1990, letter as an exemption request but should not grant an exemption from the provisions of 10 C.F.R. I 26.24(a)(2).
Respectfully submitted,
[
M N
Bernard M. Bordenick i
Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of February, 1990 l
h 5in a letter to the Commission dated February 6, 1990, counsel for L
plaintiffs requested that the Commission immediately order licensee to refrain from conducting any random drug testing until such time as the Commission and/or the United States Court of Appeals for the Ninth Circuit rules on their respective requests for stay.
This request, however viewed, should also be denied by the Commission for the same reasons that the exemption request of February 2 should be denied.
L
gw.
m.~.....-~,
-v M C,
/6B/9
.o
.h J.
i ut i:
UNITED STATES OF AMERICA M
NUCLEAR RESULATORY CW94155!0N 18 ati19 All 58 Com!$s!0NERs:
Kenneth n. Carr, cheirman
%E.t-Thames M. Roberts t'M '-
Kenneth C.
rs d*"'8 R C8rt 88 i
iSERVD OCT 19 589 h>
In the Matter of TEKAS UTITLT!ES ELECTRIC Docket Nos. 50 445-OL
)
COMPANY, et al.
h 60-445-CPA h
50-446-0L (Comanche Peak Steam Electric h
Station Units 1 and 2) d 89047 %
i h
s904744
.Q!Ea This metter is before the Commission on a motion by the Citizens for Fair Utility Regulation ("CFUR*), asking that the Consission stay the issuance'o,f a low-power license that it anticipates will be issued to
~l L
Texas Utilities Electric Company ('TU Electric") in the near future, allowing it to Operate Unit 1 of the Comanche Peak fe:111ty.
For the
[
reasons 'steted below, we summarily deny the request.
In its motion, CFUR asks that the Consission stsy issvence of the e
i enticipated low-power license pending judirial resolution ef its petition
-before the U.S. Court of Appeals for the Fifth Circuit. CFUR's petition r
seeks review of oca denial of CFUR's retition for late intervention in the Comanche Peak licensing proceeding. },gg, Texas _ytflities (1ectetc Co.,,
(Comanche Peak Steen Electric Station Units i and 2), CLI-88-!!, 23 NRC 605 (1988),,g, modified b,y, Texas Utilities Electric Co. (Comanche Peak SteamElectricStation),CLI-89-06,29NRC348(1980). $_ee Citizens for ggpWf
\\
L i
i I
a i
Fair Utility Resu1stion v. NRC, Case Nos. 89-4124and894310(5thCir.
i filed Feb.16,198g).
j Nowever in this particular case, we believe that the Consission is i
pot the appropriate body to determine this request. The Commission's l
stay procedures ers primarily intended for use in staying the effectiveness of orders of the Atomic Safety and Licensirg Soerd, the
{
l Atomic Cafety end Licensing Appeal Soard, or the Staff pending further internal review within the Casurission. Here, the Commission 15self has l
j issued a final order denying CFUR's petition for late intervention, I
l Thus, the Court of Appeals is the appropriate body to determine whether preliminary relief should be granted in a judicial proceeding to review a Commission order. Therefore, we. deny the requested stay pending judicial 1
review of the,Cosmission's orders.
However, the Cosnission is the proper forum for requests for action based upon.public health and safety concerms.
If low-power operation of Cononche Peck presented en undue risk to public health and safety, we t
would not persit such operation, regardless of whether CFUR had i
f petitioned for review of our order denying late intsrvention. In its pleadifg. CFUR esserts that thers are possible safety hazards associated 1
[,,
with the low-power operation of Comanche peak. 13g Stay Motion et 7-8.
CFUR elso reises severe? specific technical concerms. Jgg Stay Motion at 8.g.
We hereby refer these matters to the Staff for oppropriate resolution in accordance with the Commission's procedures for handling allegations, The $ttff abould also concider CFUR's allegadons concernitig the settleent ag esnent entered in the OL and CpA proceedings on July 13. 1988 sad determine whether these allegations present any t
?-
safety concerns that the staff has not previously considered. M Motion for Stay et 4 6.
We instruct the Staff to address. FUR's safety concerns prior to e
issuing the low-power license.1herefore, we see no need for the l
Commission to consider a stay of any anticipated low-power license et this tise. According to our best information TU tlectric will not be l
feedy to ask for a low-power license before November 9,198g, sore than
)
three weeks hence.
J For the foregoing reasons, the request for a stay of the anticipated low-power license is denied.
It is so ORDERED or the Cod nission
.i
( 14
.h ( \\
6 Uvgu cmLK
?$V secretary of Commissim w
Dated at Rockville, Maryland 10k this I /
day of October,1989 I
i i
l.
[
'Consissioner Rogers was uneveilable to participate on this order.
4
-3
l i
S i
i
- e STUART M. GERSON i
t Assistant Attorney General 2
JOSEPH P. RUSSONIELLO United States Attorney
{
GEORGE CHRISTOPHER STOLL 4
Assistant United States Attorney i
450 Golden State Avenue, Box 36055 5
San Francisco, California 94102 i
6 MARY E. GOETTEN SUSAN X. RUDY 7
LOIS a. OSLER Department of Justice 8
Civil Division, Room 3324 Washington, D.C.
20044 9
Telephone:
(202) 633-2071 Attorneys for Defendant-Intervenor 10 11 IN THE UNITED STATES DISTRICT COURT 12 TOR THE NORTHERN DISTRICT OF CALIFORNIA 13
)
14 STEVEN A. HIETT, 11 A1.,
)
)
15 Plaintir:r.
)
)
16 v.
)
No. C 89 4569 TMS
)
THE PACITIC GAS AND ELECTRIC 18
- COMPANY,
)
DEFENDANT-INTERVENOR'S
)
OPPOSITION TO g g-Defendant,
)
PLAINTIFFS' REQUEST
)
FOR TEMPORARY and 20
')
RESTRAINING ORDER
)
AND ORDER TO SHOW 21
)
CAUSE RE PRELIMINARY NUCLEAR REGULATORY COMMISSION,
)
INJUNCTION 22
)
Defondant-Intervenor.
)
23
)
24
)
)
25 26
l 1
\\
TABLI 0F CONTENTS 1
2 Eia*
TABLE OF AUTHORITIES
...................e..............
iii STATEMENT OF ISSUE....................
4..............
2 PRELIMINARY STATEMENT................................,.
3 RACKGROUND............................................
4 ARGUMENT..............................................
6 7
I.
A PRELIMINARY INJUNCTION NUST BE 8
DENIED BECAUSE THIS COURT LACKS JURISDICTION OVER PLAINTIFFS' 9
CLAIM.......................................
6 10 II.
A PRELIMINARY INJUNCTION MUST BE DENIED BECAUSE PLAINTIFFS CANNOT 11 DEMONSTRATE NEITHER THAT THEY ARE y
LIKELY TO PREVAIL ON THE MERITS 12 NOR THAT THE BALANCE OF RARDSHIPS TIPS SHARPLY IN THEIR TAVOR.................
7 13 A.
Th e Le g a l S t a n d a rd.....................
7 14 B.
Plaintiffs Cannot Demonstrate 15 Any Likelihood of Success on The Merits of Their Claims 16 And Have Failed To Present Even A Serious Question on
$7 The Marits Of Their Claims.............
9 II 1.
The Public Interest In Safety At Nuclear II Power Plans Is Com-pelling...........................
Il 20 11.
Plaintiffs' Privacy 21 Interests Are Already Significantly Reduced 22 By The Extensive Regu-lation of Employees In The Nuclear Industry..............
13 111. Conclusion........................
16 25 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- i
...v,...
v...
I
--?
i
- t'
-l m
v1 e
C.
i
,1 A Preliminary Injunction Should Be Denied Because 2
Plaintiffs Slept On Their i
Rights, Thereby Negating 3
Their Clain Of Irreparable Harm And Making Preliminar Relief Inequitable.......y l
16
~
4 D.
Plaintiffs Have Already 5
i Consented To such Signifi-cant Limitations On Their 6
Expectation Of Privacy That The Imposition Of A 7
Random Testing-Scheme i
i That carefully Safeguards 8
Privacy Interests Cannot Cause Plaintiffs Any 9
Irreparable Hets.......................
21 10 E.
The Public Interest In I
Insuring That Operators 11 Of Nuclear Power Plant 3 Do Not Use Illegal Drugs 12 That Impair Their Per-formance Is Compelling And 13 Significantly Outweighs Plaintiffs' Limited Privacy jg Interests..............................
22 15 III. PLAINTIFTS' REQUEST FOR INJUNCTIVE RELIEF EXCEEDS THE SCOPE OF TH ACTION..................'.....IS gg 23 97 C O N C LU S I ON............................................
25 18 19 20 21 22 23 l
24 25
- 26 DETENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFT'S REQUEST TOR TEMPORARY RESTRAINING ORDER AND ORDEP TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 11 i
i 1
s..a v w.,
I
%' 4.
---n
1 1
2 i
l l
TABLI OF AUTHORITIES 1
l P.Aan Cases J
3 J
Adviserv Info. & Munt. Systems v.
l 4
Prime cor.euter, 598 F. Supp. 76 (M.D. Tenn. 1984) 18 j
5 Alvarado v. Washinnten Public Power i
6 sueelv sustem, 759 P. 2d 427 (1988)...........................................
11 7
American Federation of Government 8
Erelevees v. Skinner, 885 T.2d 884 (D.C. Cir. 1989) 10,13, 9
15 1
10 Bluestein v. Skinner, unpublished order, Nos. 88-7503, et al.
11 (9th Cir. Dec. 14, 1989) 11 j
12 Brescal v. Brock, 843 F.2d 1163 i
(9th Cir. 1988) 24 13 Brink's, Inc. v. Bd. of Governors of
$4 the Federal Reserve Bd.,
466 T. Supp. 112 (D.D.C. 1979) 18 15 Carara v. MuniciDal Court, 387 U.S.
523 (1967) 16 15 Castle v. Cohen, 676 F. Supp. 620 37 (E.D. Pa. 1987) 21 II County of Rockland v.
U.S.
Nuclear Egpulatory conm'n, 709 F.2d 766 II i
(2d Cir.), cert, denied, 464 U.S.
993 (1983) 5,7 Davis v. Romnev, 490 F.2d 1360 (3d
[
21 Cir. 1974) 24 22 Delaware v. Prouse, 440 U.S. 648 (1979) 15 23 Ensor v. Rust Encineerina Co.,
704 F. Supp. 808 (E.D. Tenn. 1989) 11 25 1
26 l-DEFENDANT-INTERVENOR'S OPPOSITION 20 PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- lii c
n.. s. r..
ei.
+
- ~. _.,
.]
{
^'
i Exxon Core. v. Xoll Enerav Resourceo.
I ID22, 552 F. Supp. 1008 (S.D.N.Y.
1981) 18
~
3 rierida Licht & Power co. v. Lerien, 470 U.S. 729 (1985) 7 i
Fowler v. New York City Dee't of 5
sanitation, 704 F. supp. 1264 (S.D.N.Y. 1989) 12 Gardner v. Westinohouse Broadcastina 7
222, 559 F.2d 209 (3d Cir. 1977),
i aff'd, 437 U.S. 478 (1978) 24 8
GTE Coro. v. Williams, 731 F.2d 676 9
(10th Cir. 1984) 17,18 10 Guinev v. Roache, c73 F.2d 1557 (1st Cir.), cert. denied, 58 U.S.L.W.
11 3220 (1989) 10 12 Int'l Moulders' and Allied Worker's l
Local Union No. If4 v. Nelson, 13 799 T.2d 547 (9th Cir. 1986),
citino Los Anceles Memorial 34 Coliseum Comm'n v. Nat'l Football Leaoue, 634 F.2d 1197 (9th Cir.
15 1980) 7 Int'l Union. Allied Industrial Workers 16 of America v. Local Union No. 589, 693 F.2d 666 (7th Cir. 1982) t
..............s.
17
$7 Knox v. Milwaukee Bd, of Election
)
II Conm'rs, 581 F. Supp. 339 (E.D.
Wis. 1984) 18 g
Manhattan State citizens' Groun. Inc.
20
- v. Bass, 524 F. Supp. 1270 I
(S.D.N.Y. 1981)..................................
19 1
21 McNeil v. Serinofield Park Dist.,
l 22 656 F. Supp. 1200 (C.D. Ill. 1987) 18 l
23 Medical Society of the State of N.Y.
- v. Tola, 560 F.2d 535 (2d Cir.
24 1977) 17 25 ML2, Inc. v. Fourco Glass co., 470 F. Supp. 272 (E.D. Tenn. 1978) 17 DEFENDANT-INTERVENCR'S OPPOSITION TO PLAINTIFF'S REQUEST FOR TF.MPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- iv
,..n... n.
Y se 6
.6
l 1
NAACP v. NAACP Leaal Defense & Educ.
Egnd, 753 F.2d 131 (D.C. Cir.),
2 cert, denied, 472 U.S. 1021 (1985) 17
)
3 National Federation of Federal Emeloveen
- v. Chenev, 884 F.2d 603 (D.C. Cir.
4 1989) 10 I Nat'l Treasury Emeloveen Union v.
Von Raab, 816 F.2d 170 (5th Cir.
6 1987) 12 7 National Treasury Emnlevens Union v.
Von Raab, 109 S.Ct. 1384 (1989)
Passim 8
Precision Instrument Mfe. Co. v.
9 Auterotive Maintenance Machinerv Est, 325 U.S. 806 (1945) 20 10 Epshton v. Nebraska Public Power 11 District, 844 F.2d 562 (8th Cir. 1988) 12 10,13 Skinner v. Railvav Labor Executives' 13 Ass'n, 109 S.Ct. 1402 (1989) passin 14 Stiecele v. 3.M. Meere Ireert-Exeort E22, 312 F.2d 588 (2d Cir. 1963) 20 15 Taee Head Cn. v. RCA core., 452 F.2d 16 816 (10th Cir. 1971) 24 Tavler v. O'Gradv, 888 F.2d 1189 1
37 (7th Cir. 1989) 11 II Thoreson v. Marsh, 884 F.2d.113 (4th
$9 Cir. 1989) 10 i
,, Umisee seat.s v.
tec.1_13,. 3 r.
Su,,.
192 (S.D.N.Y. 1986) 6...............
18 i
Il Utility Workers Union of Amerie;'Ly.
Nuclear Reculatory Comm'n, 6 ti4 22 F. Supp. 136 (S.D.N.Y. 1987) 7 23 24 i
25 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER i
TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- V
..sv c..
U 4e e v.--
=
4 a
Williams v. Int'l Ass'n of Machinists, 1
484 F. Supp. 917 (S.D. Fla. 1978),
aff'd en district court een., 617 2
F.2d 441 (5th Cir.), ggIt. denied, 449 U.S. 840 (1980) 18 3.
W.R. Grace Co. v. Western U.S.
Industries.
4 Inst, 608 F.2d 1214 (9th Cir. 1979),
i gart. denied, 446 U.S. 953 (1980) 20 Ymffe v. Powers, 454 F.2d 1362 (1st Cir.
8 1972)............................................
24 7 ZAneda v. INS, 753 F.2d 719 (9th Cir.
i 1983) 24 8
6 9 Statutes And Reculations 10 Atomic Energy Act of 1954, Pub. L.83-703, 68 Stat. 919, codified 11 at 42 U.S.C.
$$ 2911, at Agg.
4 12 NRC Regulations i 2.4(f) 16 13 Hobbs Act, 28 U.S.C. I 2342(4) 7 14 10 C.F.R. Part 2 3
15 10 C.F.R. Part 26 3
10 C.F.R. i 26.2(c) 6 16 10 C.F.R. $ 26.24 6
10 C.F.R. $ 26.29....................................
16 II 42 U.S.C.
$ 2239(a)(1) 6-7 42 U S.C.
$ 2239(b) gg 6
II Miscellaneous 20 53 Ted. Reg. 36795.................................
5 54 Fed. Reg. 24468...................................
3,6 21 54 Ted. Reg. 24495....................................
22 54 Fed. Reg. 24501....................................
16 23 24 l
25 l
26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFF'S REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER
,l TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- vi
..s.. y e6.
I STVART M. GERSON Assistant Attorney General 2
JOSEPH P. RUSSONIELLO United States Attorney i
GEORGE CHRISTOPHER STOLL 4
Assistant United States Attorney 450 Golden State Avenue, Box 36055 5
San Francisco, California 94102 i
8 MARY E. GOETTEN SUSAN K. RUDY 7
LOIS B. OSLER Department of Justice 8
Civil Division, Room 3324
' Washington, D.C.
20044 C
Telephone:
(202) 633-2071 Attorneys for Defendant-Intervenor 10 11 IN THE UNITED STATES DISTRICT COURT 12 TOR THE NORTHERN DISTRICT OF CALIFORNIA 13
)
14 STEVEN A. HIETT, at al.,
)
)
15 Plaintiffs,
)
)
16 v.
)
No. C 89 4569 FMS
)
THE PACITIC GAS AND ELECTRIC l
$g
- COMPANY,
)
DEFENDANT-INTERVENOR'S
)
OPPOSITION TO 1
$g Defendant,
)
PLAINTIFFS' REQUEST
)
TOR TEMPORARY and
)
RESTRAINING ORDER 20
-)
AND ORDER TO SHOW 21
)
CAUSE RE PRELIMINARY NUCLEAR REGULATORY COMMISSION,
)
INJUNCTION 22 l
23 De f endant-Inte rvenor.
24 25 26 DETENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER L
TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 1 4
- e. W.,.
v'.
.I 1
STATEMENT OF ISSUE i
'the issue presented is whether plaintiffs are entitled to 3
preliminary injunctive relief of regulations promulgated by 4
the United states Nuclear Regulatory Commissions mandating
)
randon urinnlysis drug testing of certain employees of nuclear j
power generating facilities.
7 1
8 9
10 11 12 13 14 r
-15 16=
17-18 19 20 21 l,
22 L
23 I
24 25 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' l
REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 2
... se. v..
i vie e
i 1
4 PRELIMINARY ETATEMENT y
Defendant-intervenor, the United States Nuclear 3
Regulatory Commission ("NRC"), submits this memorandum in 4
opposition to plaintiffs' application for emergency injunctive relief..
5 Plaintiffs, seven employees at Diablo Canyon nuclear i
power facility in Avila Beach, California, have filed this action against pacific Gas & Electric Co. (*pG&E*) to 7
challenge regulations promulgated by the NRC mandating random 8
j i
. urinalysis drug testing for certain employees of nuclear power 9
generating facilities, 10 C.F.R. Parts 2 and 26, 54 Fed. Reg.
10 l
24468 (June 7, 1989).1 These rules were to go into effect on I
11 January 3, 1990.
Plaintiffs sought and obtained an ax parte 12 temporary restraining order and now seek preliminary l
13 injunctive relief pending the disposition of their claims on 1
t the merits.
-t plaintiffs' application for a preliminary injunction should be denied.
At the outset, as explained in the NRC's II notion to dismiss filed simultaneously herewith, this Court II lacks jurisdiction over plaintiffs' challenge to the NRC II regulations because Congress has vested exclusive jurisdiction 20 to review NRC regulations in the Court of Appeals.
- Thus, 21 plaintiffs' application for a preliminary injunction must be 22 denied, and the case must be dismissed.
23 Next, plaintiffs have no chance of prevailing on the 24 nerits of their suit, and in light of the uniform caselaw 25 1 The NRC has properly moved to intervene in this action.
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 3
...n...e.
l Y..
)
i upholding random testing in every circuit that has faced the issue, plaintiffs have not presented a serious legal issue.
]
Even if plaintiffs were to have succeeded in raising a serious l
4 question going to the merits, the balance of hardships weighs strongly in the NRC's favor.
Plaintiffs' claim of irreparable injury is negated by the fact that they slept on their rights, and equitable relief should be denied to those who do not seek
(
F I
it in a timely fashion.
The NRC regulations at issue were promulgated in June 1989.
Plaintiffs waited for almost seven 9
months to challenge them, and by doing so now have placed the 10 court in.the untenable position of having to decide this 11 matter under tight deadlines created by plaintiffs' own inexcusable behavior.
This delay in bringing suit should not 13 be countenanced.
In addition, employees of nuclear power
[
14 generating plants are closely regulated, by plaintiffs' own l
15 admissions, and in such a situation the imposition of random-I 16 testing is not even a minimal intrusion on plaintiffs' already II extremely limited privacy' interests.
Thus, random testing 10 l
causes no irreparable harm to plaintiffs.
Finally, the public it II interest in permitting the testing to go forward to detect the 20 use of illegal drugs that impair physical and mental judgment 21 among employees who work with the hazards of nuclear radiation 22
'~
is overwhelmingly compelling.
23 BACKGROUND 24 -
The Atomic Energy Act of 1954, Pub. L.83-703, 68 Stat.25-919, codified at 42 U.S.c il 2011 at it.g., as amended, 26 DEFENDANT-IN/IRVENOR'S OPPOSITION TO PIAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 4 r
establishes a comprehensive regulatory framework governing the 3
2 development and use of nuclear power for civilian purposes.
'i The NRC is charged *with primary responsibility to ensure, 3
4 through its licensing and regulatory functions, that the 5
ge eration and. transmission of nuclear power does not l
unreasonably threaten the public welfare.*
sounty of Rockland v.
U.S. Nuclear Recrulatory esrei ' n, 709 F.2d 766, 769 (2d Cir.), s,gri, denied, 464 U.S. 993 (1983).
To carry out its mandate as the primary guarantor of the public welfare, including safety, from the generation and transmission of f
10 nuclear power, "the NRC is empowered to promulgate rules and 11 regulations governing the construction and operation of 12 nuclear power plants.
42 U.S.C.
I 2201(p).
2.d.
13 (citation omitted).
14 Concerned about the impairing effects of the use of 15 illegal and legal drugs and intoxicants on the ability of 16~
persons working in nuclear power plants, the NRC published proposed regulations mandating a " fitness-for-duty program" II for employees of NRC licensees on September 22, 1988.
53 Fed.
II Reg. 36795.
These proposed regulations required licensees to 20 develop and implement programs designed to ensure that their 21 employees who worked in nuclear pcwer plants were not using 22 substances which could impair their physical or cognitive 23 abilities.
Among the requirements proposed were mandatory 24 urinalysis programs designed to detect substances that impair i
25 performance.
Interested parties had 60 days in which to 26 DEFENDANT-INTERVINOR'S OPPOSITION TO PLAINTIFTS' REQUEST FOR TEMPORARY-RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 5 va.
I I
comment on the proposed regulations.
The NRC received 378 l
comment letters during the comment period.
In addition, a public hearing on the proposed regulations, at which comments 1
i were received, was held on October 17, 1988.
l l
On June 7, 1989, the NRC responded to the comments and promulgated final regulations requiring all nuclear power plant licensees to develop a fitness-for-duty program.
54 Ted. Reg. at 24468.
These programs must include mandatory t
urinalysis testing for impairing drugs and alcohol.
54 Ted.
j 9
Reg. at 24497 (codified at 10 C.T.R.
I 26.24).
The
)
10 regulations took effect on July 7, 1989.
The requirements imposed on licensees by the regulations, including the 12 provisions requiring mandatory urinalysis chemical testing, 13 are required to be implemented by licensees no later than six 14 l
months (180 days) after July 7, 1989, or January 7, 1990.
54 J
Ted. Reg. at 24495 (codified at 10 C.T.R. I 26.2(c)).
16 ARGUMENT I.
A PRELIMINARY INJUNCTION MUST 10 BE DENIED BECAUSE THIS COURT IACKS JURISDICTION OVER PLAINTIFFS' CLAIM II As explained in the memorandum in support of the NRC's 20 motion to dismiss, Congress has vested exclusive jurisdiction
]
21 to review NRC regulations in the Court of Appeals.
Under the
-22 provisions of 42 U.S.C. $ 2239(b), jurisdiction to review any I
22
- final order" of the NRC entered in a proceeding, inigI allA,
+
24 a
for the issuance or modification of rules and regulations 25 dealing with the activities of licensees, 133 42 U.S.C.
26 DEFENDANT-INTERVENOR'S OPPOSITION TO PIAINTITTS' REQUEST TOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 6 s. e. w. -
\\
q I 2239(a) (1), is established by 28 U.S.C. $ 2342 (4), which 3
i j
vests exclusive jurisdiction over such actions in the courts l
of appeals.' Egg Florida Licht & Power Co. v. Lorion, 470 U.S.
7s9 (1985); County of Rockland, 709 F.2d at 774; Utilitv 4
Workers Unien of America v. Nuclear Raoulatory Comm'n, 664 i
F.Supp. 136, 138 (S.D.N.Y. 1987).
Because this Court lacks subject-matter jurisdiction, the complaint must be dismissed, and plaintiffs' application for preliminary injunctive relief must accordingly be denied.
9 i
II.
A PRELIMINARY INJUNCTION MUST BE 10 DENTED PCAUSE PLAINTIFFS CANNOT DEMONSTRATE NEITHER THAT THEY ARE 11 LIKELY TO PREVAIL ON THE MERITS NOR THAT THE BALANCE OF HARDSHIPS' 12 TIPS SHARPLY IN THEIR FAVOR 13 A.
The Leaal Standard 34 The Ninth Circuit permits two methods of demonstrating an 15 entitlement to preliminary relief.
16 A preliminary injunction is warranted if the movant demonstrates either " 1 combination of probable success o(n)the a
37 merits and the possibility of irreparable
'8 injury r (2) that serious questions are raised and the balance oi" hardships tips 39 sharply in its favor."
g Int'l Moulders' and Allied Worker's Local-Union No. 164 v.
g Nelson, 799 F.2d 547, 550-551 (9th Cir. 1986), citina Lgg Anceles Memorial Coliseum Comm'n v. Nat'l Football Leaoue, 634 F.2d 1197, 1200 (9th Cir. 1980).
Under either analysis, plaintiffs fail to show a basis for granting preliminary relief.
The law as it has developed.is now clear that random drug testing is fully constitutional in cases in which the n.
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEM}GJLRY ' RESTRAINING ORDER AND ORDER
~TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 7
..a
t l
potential harm from the-drug use outweighs the privacy 2-expo tations of the individuals subject to the testing.
In
.this case;'the potential for catastrophic harm caused by an-employee of a nuclear power plant under the influence of illegal drugs greatly outweighs the already extremely limited "E
6 expectations of privacy held by nuclear power plant works. --
Therefore, plaintiffs are unable to demonstrate a likelihood of' success on the merits.
8 Even if the Court were to find that plaintiffs had raised 9
a serious question on the merits of their claim, these same-10 factors, 12g, the potential for catastrophic harm and the 11 minimal intrusion of the random testing on the already 12
. circumscribed privacy interests at issue, preclude plaintiffs 13 from being able to demonstrate that the balance'of hardships tips sharply in their favor.
Indeed, plaintiffs' claim to 15' irreparable harm is entirely undermined by their failure to seek relief until almost seven months after the NRC had II' promulgated its regulations.
Because plaintiffs slept on II 1
their rights, they are irJm facto unable to ment their burden IO of showing irreparable harm and the Court should deny their 20 request for a preliminary injunction based on this equitable 21 principle alone.
22
.3 2
l
{
2!4 L
L 25 26 m
- DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' L
REQUEST FOR TEMPORARY RESTRAINING ORDER AND CRDER i
(
TO SHOW CAUSE R2 PRELIMINARY INJUNCTION -- 8 L
- s.ev,y.'
.Yan.
I A
E
,z}.,,
y
' ' ' ' ' ' jj t
B.
Plaintif fs Cannoti Demonstrate Any i
Likelihood'Of Success on The Merits Of Their' Claims and Have Failed 2-To Present Even a Serious Question On The Merits of Their claims 3-In Skinner v~.
Railvav Labor Executives' Ass'n, 109 S.Ct.
-1402 (1989), the Supreme Court held that federally-mandated
-g post-accident drug testing of railway _ crew members was 6
consistent with the fourth amendment, even absent a showing 7
that the individual subject to the test was suspected of drug 8
use or responsibility for the accident.
In National Treaggr.y z
()
Erelevees Union v. Von Raab, 309 S.Ct. 1384 (1989), the 10 Supreme Court held that drug testing of employees of the 11 Customs Service, prior to their selection for transfer or 12 promotion to sensitive positions requiring the carrying of firearms, was consistent with the fourth amendment, despite e
the absence of any showing that the individual was suspected 15-of drug use.
In both cases, the Court held that the employees
' I0 had a reduced expectation of privacy: in Skinner because of II "their-participation in an industry that is regulated 10 pervasively to ensure safety" and because the collection 10 procedures' minimized intrusiveness, 109 S.Ct. at 1418; in Y.9.D
. 20-B.a.nh because the officers "cannot reasonably expect to keep 21 from Ltheir employer) personal information that bears directly 22 on their fitness," given the natu:re of their employment,109 23
.S.Ct.
at.1394.
Balanced against the reduced expectations of 24 privacy in both cases, the Court held that there was a 25 compelling public interest to justify the testing.
These 26.
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' 7
REQUEST FOR TEMPORARY RESTRAMITNG ORDER AND ORDER T
TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 9
' N" Z.
__,,,,,,_,,m_-
.m.,,,
i---sm-==
f
.I A
decisions apply here and mandate that plaintiffs' fourth 1
i 1-amendment claim be denied.
2 L
Indeed, even before the Supreme Court upheld testing in 3-the absence of particularited suspicion of drug use, the
' Eighth Circuit had rejected the same challenges presented by I
1 plaintiffs here in upholding random drug testing for employees
- g..
6-L of nuclear power plants.
Rushton v. Nebraska Public Power District,.844 F.2d 562 (8th Cir. 1988).
In Skinner, the 8
Supreme Court cited Rushton with approval, indicating that the 9
Court is prepared to sanction the testing at issue here.
109 10 S.Ct. at 1419.
11 Since the Supreme Court decided Skinner and Von Raab, 12
.'13.
every Court of Appeals that has faced the issue has upheld random urinalysis drug testing against fourth amendment 14 hallenge for public employees whose jobs entail significant 15 safety duties and whose expectations-of privacy are limited.
American Federation of Covernment Emelovees v. Skinner, 885 I
F.2d 884 (D.C. Cir. 1989) (Department of Transportation 10
- employees, including maritime vessel controllers, ferryboat 19-pilots, engineers, oilers, and general deck and engine 20
.maintenace mechanics); Natiersl Federation of Federal
~
21 Emolovees v. Chenev, 884 F.2d 603 (D.C. Cir. 1989) (civilians 22 in the Department of the Army, including guards, aircraft 23-mechanics); Guinev v. Roache, 873 F.2d 1557 (1st Cir.) (police 124 of ficers), cert. denied 58 U.S.L.W. 3320 (1989); Thomosen v.
~
25 Marsh,'884 F.2d 113 (4th Cir. 1989) (civilian Army personnel 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW.CAUSE RE PRELIMINARY INJUNCTION -- 10 s
s,w.x.
- v,..
u
=
who' handle harmful chemical agents); Tavler v. o'Gradv, 888 F.2d 1189 (7th Cir. 1989) (corrections officers).
The Ninth Circuit has denied without opinion a motion to enjoin drug testing of flight crews under regulations promulgated by.the Federal Aviation Administration.
Bluestein v. skinner, 5
i
.c unpublished order, Nos. 88-7503 at 31.-(9th Cir. Dec. 14, C
1989).2 In addition, the Eastern District of Tennessee has-7 upheld random testing for nuclear workers in Ensor v. Rust 8
Eneineerina Co., 704 F.Supp. 808 (E.D. Tenn. 1989), menaal' 9
cendina.
Finally, the Washington State Supreme Court upheld 10 drug testing for nuclear power plant workers in Alvarado v.
11 Washincton Public Power-Suen1v Svstan, 759 P.
2d 427 (1988),
.12 o
and the Supreme Court has denied plaintiffs' petition for a s
13 writ of certiorari, 109 S.Ct. 1637 (1989).
In all of the cases that were decided after Von Raab and 15 Skinner, the courts held that'the same balancing test employed I
10
-by the Supreme Court was applicable to random drug testing.
L L-II Accordingly, the NRC will address the legality of the testing 38' at issue under the Suprume Court's balancing' test.
4
-II 1.
The Public Interest.In Safety At Nuclear Power Plants-Is Commellina The-governmental interest at stake is one of the most compelling imaginable: the improvement of' safety at nuclear power plants.
There can be no dispute that ionizing radiation is potentially extremely hazardous.
While the safety record 25 2 These regulations are subject to direct review in the f
Ninth Circuit pursuant to the Hobbs Act.
p 26 u
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' p
REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 11 t
j,qu 067 *
- v as 4
. ~. -
a
~"
1 of civilian nuclear reactors in this country is excellent, the H
g potential for great danger is always present.
The disaster at 2
chernobyl is only one example of the catastrophic harm that
_4 can result from.a failure in the safety systems of a nuclear plant.- The government has no more compelling interest than in 5
ensuring that those employees who are responsible.for reactor-2,,
operations,.Who have unescorted access to sensitive parts of nuclear plants, or who have any responsibility for safety in any way, even if indirect, not be impaired when they are at work.
10 The' government's interests extend not only to ensuring 11 that the use_of impairing substances do not cause any 12 emergencies, but also to assuring that nuclear plant personnel are able to respond appropriately, with unclouded judgment in 14 an unimpaired condition in the event that there is trouble with the reactor.
16^
Finally, the public has interest in assuring that 17-impaired employees do not harm other. employees or cause 0
expensive dhmage to equipment.
The costs in the workplace Y
asscelated with illegal drug use are staggering.
3.3.3 Nat'l 20 Treasurv Emolovees Union v. Von Raab, 816 F.2d 170, 173 (5th
(
21 Cir. 1987) (drug use costs $33 billion annually), aff'd, 109 7
l 22-
- S.Ct. 1384 (1989); Fowler v. New York City Don't of
['
23 Sanitation, 704 F.Supp. 1264, 1275 (S.D.N.Y 1989) (citing 24 p
National Institute on Drug Abuse estimate that drug use by 25 employees costs $100 billion per year).
And these costs do l:
26
~ DEFENDANT-INTERVENOR'S OPPOSITION TO PIAINTIFFS' ll; REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER l
TO SHOW CAUSE-RE PRELIMINARY INJUNCTION -- 12 i
-.. e.
t..
^:
am..
- - - ~. -
4 L
r' 4
1 not'even include those associated with alcohol, for which the-
-NRC' regulations also require testing. 'The public should not i'
have to bear these costs in the production of electricity, B
which each of us uses and for which each of us pays.
11.
Plaintiffs? Privacy Interests Are 4-5 Already significantly Reduced By The Extensive Regulation of 6
Emelovees In The Nuclear Ind0m m 7
Tne public interest in testing nuclear power plant 8~
workers is compelling and, when weighed against the privacy 9
interests at stake, comports fully with the requirements of
=10 the fourth amendment as enunciated by the supreme Court.
The 11.
plaintiffa have already consented to significant intrusions 1
.12 into their privacy by the mere fact that they work in the 13 nuclear industry.
Indeed, plaintiffs point out that "[n)ot 34 only is there extensive preemployment screening of job 15
. applicants, but there is also an inordinate. amount of security 16 as a result of the checks and balances in the facility itself, f
Plaintiffs' Memo at 7.
Background investigations
$7 1
18 inv lve a significant degree of intrusiveness into the gg.
individual's privacy and significantly reduces.an employee's 20.
reas nable expectation of privacy.
Von Raab, 109 S.Ct. at
..L 1397; AFGE v. Skinner,'885 T.2d at 893.
In addition, security measures involing wmfxplace searches of persons and belongings serve to significantly reduce expectations of privacy.
San Bushinn, 844 F.2d at 563 & n. 2.
Additionally, plaintiffs state that they are currently subject to periodic medical examinations as well as a fitness for duty program designed to DEFENDANT-INTERVENOR" " " 'CV TO PLAINTIFFS' REQUEST FOR'TEMPORAr; ;,r n 3; N' Y ORDER AND ORDER t
TO SHOW CAUSE RE PRILl t ""?Y IJJ'. lCTION -- 13 m
i
..Lew-..
i
. ly"-
- -.~~
- ~
0 i'
i identify drug users by medical examinations for cause.
- Plaintiffs' Mano at-6-7.
Particularly,--in the face of these extensive intrusi'ons into plaintiffs' expectation of privacy to which plaintiffs
, voluntarily submit, the government's interests in public safety clearly outweigh the privacy interests involved.
In skinn'ar, the Supreme Court expressly relied on the pervasive
'T regulation of the railroad industry to uphold the testing 8
there.
The nuclear power indastry is, if anything, more 9
heavily regulated that the railroad industry, inasmuch as the 10 potential-for catastrophic harm is heightened by the dangerous nature of nuclear energy production.
Thus, skinner is 12 dispositive of plaintiffs' fourth amendment clains and precludes plaintiffs from prevailing on this issue or even 14 raising a serious question under the fourth amendment.
I Moreover, in addition to the already.significantly
- 16 reduced expectation of privscy held by the plaintiffs, the II court must also consider.on the privacy side of the balance 18 the minimal intrusion of the testing at issue.
Specifically, i
II
.the NRC regulations minimize their intrusiveness by providing 20 advance notice of random testing to employees of NRC licensees
- 21 who are subject to such testing.
This notice reduces the 22
-
- unsettling show of authority," Delaware v. Preuse, 44o n.s.
(23 y
648, 657 (1979), that might otherwise be associated with 24 random testing.
The plaintiffs have been notified that drug l
.25 testing comes as a condition of their job and therefore 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 14 4
~
1 "know[]~that [they) aust take a drug test, and [are) likewise 1
aware of the procedures the [ licensee) must follow in administering the test."
von Raab, 109 S~Ct. at 1391.
t Where, as here, "the balance of interests precludes insistence upon 'some quantum of individualized suspicion,'
6 other safeguards _[must be) generally re' led upon to assure that the' individual's reasonable expectation of privacy is not q
subject to the discretion of the official in the field."
8-9 440 U.S. at 655 (quoting camara v. Municieal court,
- Preuse, 387 U.S. 523, 532 (1967)).
By using random selection as the 10 means to select employees for testing, the NRC and its L
'11 licensees-have eliminated any discretion among. supervisors in 12-deciding which employee gets tested, thus " safeguarding the i
11 3 privacy and security of individuals against arbitrary 14
' invasions."
Preuse, 440 U.S. at_653-54.
Accord Von'Raab, 109 L
S.Ct. at 1391 (fact that there are no neutral factors for 5
0' magistrate to evaluate renders judicial determination of r
I -
~ probable cause and a warrant unnecessary for urinalysis);
IO Skinner v. RLEA, 109 S.Ct. at'1415 (same); AFGE v. Skinner, IO 885 F.2d at 891 (random testing pursuant to Executive Order 20:
12564 limits discretion in the selection process).
I 21
. Finally, the NRC regulations are tailored to respect 1
22 employees' reduced expectations of privacy.
First, the 23' collection process _is not directly observed; an employee i
g
- 24L
.provides the sample in-privacy, unless there is reason to 25 believe the employee may alter or substitute the urine sample.
E
'26:
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER
'TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 15 m
d osy..p...
1
_vi==
- i
4
-![
Appendix ~ A to NRC Regulations at $ 2.4 (f), 54 Fed. Reg. 24501.
~
Second, the NRC regulations limit the inquiry into employees' off-duty conduct to.the greatest extent possible.
The test simply reveals whether the employee recently ingested one or r'
more of several impairing substances, and nothing else.
Third, drug test results are to be maintained under conditions
-to assure confidentiality of the. test results except.as needed
.8' to make decisions for unescorted access to reactor areas and the limited other purposes allowed by 10 C.F.R.
I 26.29.
9 Similar privacy provisions were considered in Von Raab, and 10 the Supreme. court expressly found that they "significantly 11 minimize the program's intrusion on privacy interests." - Y.9.n -'
12-Raab, 109 S.Ct._at 1394 n.
2.
13 111. Conclusion 14 For the foregoing reasons, plaintiffs are unable both to 15 demonstrate a likelihood of prevailing on the merits of their 10 fourth amendment claim and to raise a serious question going L
'to the merits of this claim.
Accordingly, a preliminary 18 injtinction should be denied.
II c.
.A Preliminary Injunction Should Be 20 Denied Because Plaintiffs Slept On Their Rights, Thereby Negating Their 21 Claim Of Irreparable Harm And Making
~.
Preliminarv Rellef Inacuitable
- 22 As noted above, even though plaintiffs cannot demonstrate 23' a likelihood of success on the merits, a preliminary 24 injunction may be available if they can demonstrate-a serious
.25 -
question going to the merits and show also that the balance of 26 It DEFENDANT-INTERVINOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER To SHOW CAUSE RE' PRELIMINARY INJUNCTION -- 16 L
[
'll$ L
i e
1 1
hardships tips-sharply in the novants' favor.
Assuming 1
arouende that plaintiffs have presented a serious question 3
going to the merits on any of their claims, a preliminary injunction should still be denied because the balance of hardships favors defendants.
Freliminary injunctive relief is an extraordinary remedy; l
it is the exception, not the rule.
333, 3.im., Medical' society.
7
.I of the State of N.Y. v. Tola, 560 F.2d 535 (2d Cir. 1977).
. Accord GTE Corn, v. Williams, 731 F.2d 676 (10th Cir. 1984);
9 ML2. Inc. v. Fourco Glass Co.,
470 F.Supp. 272'(E.D. Tenn.
10.
1978).
Plaintiffssix-month delay in bringing this action i
and in not seeking emergency. equitable relief until the-12 penultimate business day from the date testing is to commence L
13 negates any claim plaintiffs r:laht have had for preliminary, 14 equitable relief.
15 l
"It is a well-established principle that equity aids only 30 the vigilant, and such relief will be confined to those who h
exercise reasonable diligence in seeking the same, and it will J
10
.be denied those who sleep on their rights."
ML2. Inc. v.
AI'
- i l
Fourco Glass Co.,
470 F.Supp. at 276.
Accord NAACP v. NAACP 20:
Leoal Defense & Educ. Fund, 753 F.2d 131, 137 (D. C. Cir. ), -
L.
^
21 cert, denied, 472 U.S. 1021 (1985); Int'l Union, Allied u
'. 22 23.
Industrial Workers of America v. Local Union No.
589' 693 F.2d 666 (7th Cir.1982) ; Williams v. Int'l Ars'n' of Machinisig,
,!r 24 484 F.Supp. 917 (S.D. Fla. 1978), aff'd AD districi court
]
25-H 2RD., 617 F.2d 441 (5th Cir. ), ggn, denied, 449 U.S. 840 26-DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 17 L
.m,n...,,.
r n..
e.---
g l
1 1
-l l
u (1980).
1.
When'a party seeks emergency, preliminary, equitable
-relief,.this principle is applicable with special force.
One-of the; prerequisites that plaintiffs must show to meet their a
burden of demonstrating entitlement to a preliminary 4
injunctive relief is a showing of irreparable harm.
When a 5
party delays filing an action and then comes to court seeking
)
3 6.
preliminary equitable relief, the delay
- undercuts the sense O
7 of. urgency that ordinarily accompanies a motion for 8
preliminary relief and suggests that there is, in fact, no 9
irreparable injury."
GTE core. v. Williams, 731 F.2d at 678.
10 Accord Adviserv Info. & Mont. Systems v. Prime comeuter, 598.
L 11 F.Supp. 76, 89 (M.D. Tenn. 1984); Exxon core. v.-Xoil Enerav 12 Resources. Inc., 552 F.Supp. 1008, 1012 (S. D. N. Y. 1981).
Plaintiffs'? inexcusable delay in bringing this
}
4 application for preliminary relief is par as grounda for its
.15 denial.
United States v. Local 6A, 663 F.Supp. 192 (S. D. N. Y..
16 1986) ; McNeil v. Serinofield Park Dist., 656 F.Supp. 1200 h
' II (C.D. I11. 1987); Brink's. Inc. v. Bd. of Governors of the p
l0 Federal-Reserve Bd.,
466 F.Supp. 112 (D.D.C. 1979)e This is
- 19 particularly true because plaintiffs have had know30dge :4 '52 20:
facts giving rise to their causes of action for almost suven 21 ~
months.: Ess Knox v. Milwaukee Bd. of Election comm'rs, 581 22 F.Supp. 339, 402 (E.D. Wis. 1984).
In addition, the fact that
-23 plaintiffs have alleged a purported violation of their 24 constitutional rights is an insufficient basis for avoiding 25 the principle that requires that their action be filed without f"
26' DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RES7 RAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 18
,. 6g %8 s Ni.a Y46 e p
- - - = - - - -
=
undue delay.
333 Manhattan state citizens' croue. Inc. v.
I 1
- 2 bas.g, : 524 F. Supp. 1270, 1275-76 '(S.D.N.Y 1981) ("[ijt is'an unfair imposition on the defendants and on the Court to force L_.
4 an unnecessarily hasty decision on such an important question I
of constitutional law").
3
. 5 6
The'NRC issued its fitness-for-duty regulations on June Y
7, 1989. -They bag.me effective on July 7, 1989, and licensees.
[
7 that operate nuclear power plants had to implement their_d ng
+
testing plans under the NRC' regulations by January 1990.
I
,. a --
g Thus, plaintiffs have had over six months in which-to bring-
10 this action.3
-11 This case could have proceeded without any need for s
12
- emergency. hearings and shortened time frames because the 13-plaintiffs had to have recognized the possibility of the 14-implementation of-drug testing over six months ago.
- Instead, for no apparent reason, plaintiffs waited over six months to j
16 i
file this action and did so during'the holiday season, only:
two business days before PG&E was to commence random drug I0 testing.
II Now that plaintiffs have finally sued, they have put 20
.thems'lves in the position of needing to seek emergency e
21 relief.
They have likewise' forced the Court, the defendant, 22 and the NRC to accommodate an accelerated schedule because of 23 this purported. emergency that is entirely of plaintiffs' own 24 3 Indeed, as noted above and in the NRC's motion to 25 dismiss,' plaintiffs' delay in bringing this challenge has o
divested the Court of Appeals from hearing it as well.
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAU3E'RE PRELIMINARY INJUNCTION -- 19
.. v. : w.
- Y ta e
.'<}e-ee
4 f.
t
.c ~
i making.
By their delay, plaintiffs should not be-heard to complain that they;now, nors.than six months after the initial
. notice of drug testing, will suffer irreparable harm.
If plaintiffs could wait six months to bring this action,'they-can wait the additional time it will-take to resolve it.
5 For them to now claim otherwise in the face of their own delay is evidence that plaintiffs subscribe to the adage "do as I say 7
and not as I do."
The Court should not tolerate this 8-attitude.
9 The principles that those who seek equity must do equity, 10 and that' equity will not be done fer those who sleep on their
, 11 rights, are especially applicable when a party sleeps en its rights'and then seeks emergency relief to enjoin a government
"! ?
program adopted to further the public interest.
"Where a suit in equity concerns the public interest.
. th(e) doctrine (of 'he who comes into equity must come with clean hands').
II assumes even wider and more significant proportions.
For if II an equity court properly.uses the maxim to withhold its 18 assistance in such a case it.not only prevents a wrongdoer 19 from-enjoying the fruits of his transgression but averts'en 20-injury to the public."
Precision Instrument Mfe. Co. v.
21 Automotive Maintenance Machinerv co, 325 U.S.
806, 815 s
f, 22 (1945).
Accord W.R. Grace co. v. western U.s. Industries.
23 Inc.., sos-F.2d 1214, 1217 (9th Cir.1979), gart. denied, 446 24 U.S. 953 (1980) ; stieaele v. J.M. Moore immort-Excert Cg, 312 25' g
F.2d.588, 594 (2d Cir.1963).
Hence, "[w) hen acting in 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER
-TO SHOW CAUSE.RE PRELIMINARY 7NJUNCTION -- 20 wsv. 4.c
, v a,.
W equity, a court should never lose sight of public policy as enunciated by Congress" and the Executive.
castle v. cohen, 676'F.Supp. 620, 628 (E.D. pa. 1987).
Tr.e importance of this 4
rule is magnified when a party comes-to court socking to enjoin a government program two days before it is to be implemented, especially when the program could have been-m 6
challenged before'the government spent the time, effort, and money to implement it.
The federal government oversees 8
thousands of programs, and it has a great interest in being 9
able to rely on the lack of a-lawsuit in order to commence 10 implementation of new programs and in avoiding injunctions of 11 ongoing programs in all areas in which it functionc.
'12 Because of plaintiffs' unexplained and inexcusable delay, 13 the Court should deny the application for a temporary
'14 restraining order without even reaching the merits of i
I plaintiffs' challenge.4 0'
D.
Plaintiffs Have Already Consented To
$7 Such Significant' Limitations'On Their Expectation-.Of Privacy That The
.gg
. Imposition of A Random' Testing Scheme That Carefully Safeguards Privacy
-. =
19~
Interests cannot cause Plaintiffs Any i
Irrenarable Harm 20-As discussed above under the fourth amendment, plaintiffs 21-have consented to significant limitations on their expectation l
v 22:
23 4 Defendant-intervenor will not rely on the equitable 24' defenses of~ unclean hands and laches in opposing plaintiffs' IF claims en its merits in the event that the Court does not dismiss the action. -These defenses are relied upon only for A
25 i
the issue of whether the emergency, preliminary relief sought by plaintiffs is warranted in this case, a
26 I
DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST TOR. TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 21
- w.,n. 4,.
i Wu.
bb-
of privacy.in' connection with their employment in a nuclear F
generating plant.
Indeed,-plaintiffs admit that they are 2
4 subject to extensive background checks, tight security l
measures, periodic physical examinations, and a current 1
fitness for duty progre.m designed to identify drug users by
+1 medical examinations for cause.
In light of the significant
- 6 limitations on their-expectation of privacy to which plaintiffs have already consented, the implementation of 8
random testing causes no harm to the plaintiffs.
This is 9
especially true in light of the privacy saferguards included in 10 the random testing program under the NRC regulations, as 11 outlined above, which the Supretae Court has already approved.
7 12 YpJi Raab, 109 S.Ct. at 1394 n. 2.
13 E.
The Public Interest In Insuring That 34 operators of Nuclear Power Plants
.Do Not Use. Illegal Drugs That Impair 15-Their Performance Is Compelling-And Significantly Outweighs Plaintiffs' 16-Limited privaev Interests 37 Weighed against-plaintiffs' limited privacy interests are i
18 e enra rd narily apelling interests of the NRC in r
39 insuring the safe operation of nuclear. power generating g
facilities throughout the country.
A radioactive estission i
from a nuclear power plant can cause extreme harm,-including death and severe illnesses.
The NRC's primary function is to ensure that the;public interest, especially health, is not endangered by the generation of nuclear power.
The fitness-for-dutiesregulationsatissuewerenotproposedandadr[ted 1
lightly.
An extensive administrative record was developed and DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS'
-REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE-RE PRELIMINARY INJUNCTION -- 22
..ev m
i m.
' ~
~ ~~
~
li' l
evaluated.
Applying its expertise over nuclear safety issues, the NRC determined that these regulations are necessary to promote safety in nuclear power generation.
C1sarly, this M gment is beyond dispute.
Against the public interest in
(
safety and health, plaintiffs posit a speculative series of injuries to privacy interests that are already among the most
+
circumscribed in the American workplace.
In light of the interests at stake, plaintiffs cannot demonstrate that the 8
)
balance tips sharply in their favor.
Rather, the balance tips
-9 strongly in defendants' favor.
10 Therefore, in the event that this Court finds that 11 plaintiffs have at least raised a serious question going to 12=
the merits, the Court should recognize that the public 13 interest at stake strongly supports the denial of the 14 temporary restraining order and should allow the implementation of random testing during the pendency of this 10 action.
III. PLAINTIFFS' REQUEST FOR INJUNCTIVE RELIEF g
EXCEEDS THE SCOPE OF THIS ACTION 19 For the many reasons above, plaintiffs' notion for preliminary injunction should be denied.
The NRC notes,
.however, that the seven plaintiffs in this action seek to
),
enjoin random drug testing of an employees represented by International Brotherhood of Electrical Workers Local 1245 or by the Engineers and Scientists of California, with unescorted access to the Diablo Canyon Nuclear power Plant.
Yet such a
~
request far exceeds the scope of the action brought by DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 23 esyge
-plaintiffs.
While the complaint is styled cs a class action, 2:
plaintiffs' mere unsupported allegations that they represent all such employees;does not render them entit3e4 to the broad-sweeping relief requested.
No class has been certified here.
4 T.-,
Indeed, plaintiffs have not even moved for class
. certification.
L v:
6 Without'a properly certified class, a court cannot grant class-wide relief.
Thus, the scope of any injunction should be tailored so that it grants relief only to 8
the seven named plaintiffs.
ZeDeda v. IME, 753 F.2d 719, 727-9 31 (9th-Cir. 1983); 323 alag Brasg.,A v. Brock, 843 F.2d 1163, 10' 1169 (9th Cir. 1988) (stressing that Zepeda applies to issues 11 of oreliminarv -relief)- (emphasis original).5 ' EAR 1132 Fed.1R.
12 Civ. P. Rule 23; Davis v. Romnev, 490 F.2d 1360, 1366 (3d Cir..
13 1974); Yaffe v. Powers, 454 F.2d 1362, 1364-63 (1st Cir.
14 1972); Taee Head Co. v. RCA coro., 452 F.2d 816, 819 (10th 15 Cir.1971) (per curiam).
'16 L17 s18' 19' 20 21"
>~
2f 22 5 As the court in zeoeda noted, since a preliminary 23
-injunction can only be used to maintain the status quo, this preliminary relief cannot be any broader in scope with respect to nonparties than a decision after a full trial on the 24 merits.
753 F.2d at 728 n.3.
If the preliminary relief 25 granted later appears to be inadequate, a court can certify a class at a latt.;r time, cardner v. Westinchouse Broadcasting G22, 559 F.2d 209 (3d Cir. 1977), aff'd, 437 U.S. 478 (1970).
-26_
' DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORAR7 RESTRAINING ORDER AND ORDER TO; SHOW CAUSE RE PRELIMINARY INJUNCTION -- 24
- 3. c......
1
%' 4 b Sk r
r
k
- i
-l
't.
. i.
For the foregoing reasons, plaintiffs' application for.
I s
2-emergency injunctive relief should be denied.
~
4-Respectfu11y' submitted, 5
. b.
OF COUNSEL:
STUART M. GERSON U
6 Assistant Attcrney General WILLIAM C.
PARLER L,
7 General Counsel JOSEPHLP. RUSSONIELLO United States Attorney
'S
. JOHN F. CORDES, JR.
Solicitor J
9 I
CHARLES-E. MULLINS GEORGE CHRISTOPHER ETOLL
' 10:
Attorney Assistant United States Attorney c
Office of the General. Counsel 450 Golden Gate Avenue
- 11 Nuclear Regulatory Commission San Francisco, CA 94102 Washington, D.C.
12
. 20555 Telephone: (415) 556-6433 is 13 MARY;$
+
E. GOETTEN'
/b
.[.
. 15 j
SUSAN K. RUDY
/-
. 16 LOIS B. OSLER Attorneys, Depar ment of Justice
-i II-Civil Division t
Federal Programs Branch 10 Post Office Box-883 Washington, D.C.- 20044-0883 0'
Telephone: (202/FTS) 633-2071 ATTORNEYS FOR DEFENDANT-INTERVENOR-L*:
January 4, 1990 j$
22 23' c
24 h
.25:
3 26 DEFENDANT-INTERVENOR'S OPPOSITION TO PLAINTIFFS' REQUEST FOR TEMPORARY RESTRAINING ORDER AND ORDER c
TO SHOW CAUSE RE PRELIMINARY INJUNCTION -- 25 J
' 9 t%%10 >
O' t vah e t 5
s
,m
,d j
v v. -
q DOCKE1ED
- o 05NRC -
- i
.1 I'
~
'90 FEB 12 P2:08 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY C0fEISS10N
]
OF HCOW BEFORE THE COMMISSION
$1kCI Y
-In the Matter of:
y
-PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 323 j
(Diablo Canyon Nuclear Power (FitnessforDuty. Rule)
^
Plant,.Unitsl and 2) j
~
J i
c g
CERTIFICATE OF SERVICE I hereby certify that' copies.of "NRC STAFF RESPONSELTO FEBRUARY' 5,1990
' COMMISSION ORDER" in the above-captioned aroceeding have been served on the following:!as indicated by an asterisk, t1 rough deposit in the' Nuclear Regulatory Comission's. internal mail system; or as indicated by a double asterisk by hand-delivery;.or as indicated by a triple asterisk by telecopier and deposit-in the United-States mail, first class, this 12th day of
' February..1990:
. Tom'Dalzell,;Esq.***
Michael Whelan, Esq'***
LocaltUnion 1245-..
lathan T. Annand, Esq.
j
-International Brotherhood of Pacific Gas and Electric Company Electrical Workers, AFL-CIO P.O.' Box: 7442 '
i P.O. Box 4790-San Francisco, CA 94120 o
l 3063. Citrus, Circle L'
Wa lnu t' Cree k,~- CA 94596' Atomic Safety 'and Licensing Board '
i Panel (1)*
p
" Atomic Safety. and Licensing Appeal U.S'. Nuclear Regulatory Comission o
L Panel-(5)*
Washington, DC 20555' so-
. U.S. Nuclear' Regulatory Comission J
Washington,-DC' 20555 Adjudicatory File
- J Atomic Safety and Licensing Board
?*
.Sanford N. Nathan, Esq.***
Panel' p *, _
..Neyhart,. Anderson, Nussbaum, U.S. Nuclear Regulatory Comission -
L
.Reilly~& Freitas' Washington, DC 20555 P.O. Box 7426
-San Francisco, CA 94120 Office of the Secretary **
U.S. Nuclear Regulatory Comission Washington, DC 20555 3 M n % ;dc' Bernard M. Bordenick
['c Counsel for NRC Staff
..r
-- 1 u
.. -.