ML20086A930
| ML20086A930 | |
| Person / Time | |
|---|---|
| Site: | FitzPatrick  |
| Issue date: | 05/31/1991 |
| From: | Ralph Beedle POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20085N403 | List: |
| References | |
| REB-91-041, REB-91-41, NUDOCS 9111190434 | |
| Download: ML20086A930 (2) | |
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Eu e 48b NewYorkPower ter Authority '"""
May_31, 1391 RES-91-041 Mr. Samuel J. Chilk Secretary.of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Section
Subject:
In the Matter of New York Power Authority James A.
FitzPatrick Nuclear Power Plant Docket No. 50-333/ License No. DPR-59 Enforcement Action No.91-053 order Modifying License (Effective Immediatelvi-
Dear Mr. Chilk:
In accordancp' (the order) , the New York Power Authority (the- Authority)with the above-ca herewith submits the Answer of the New York Power Authority to order Modifying License (the Answer) .
The Authority submits the. Answer in the belief that it is entitled to protection, and is to be withheld from public disclosure, under 10 C.F.R. I 2.790. We herewith enclose an I
af fidavit in support of our position in this regard.
Specifically, the Answer re.4rs to personnel matters or otherwise confidential information and includes various references to the l
conduct or performance of a named individual. Further, the information contained in the Answer that-is to be withheld from public disclosure is of a type that-the Authority customarily holds in confidence, and the public disclosure of this L
9111190434 911105 PDR ADOCK 05000333 O PDR
'A twenty-day extonsion on the original deadline for an answer to the order was provided on May 17, 1991 by the Director of the office of Enforcement.
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l infor:ation vould, the Authority believes, constitute an l unwarranted invasion into One personal privacy _of the named j individual.
l Very truly yours,
-g .- m b'j/w C M . q< '._ L r -
Ralph E. Beedle Executive Vice President ec: The Honorable Chairman Kenneth M. Carr U.S. Nuclear Regulatory Commission Washington, DC 20555 James Lieberman Director, office of Enforcement U.S. Nuclear Regulatory Commission '
Washington, DC 20555 Lawrence W. Chandler, Esq.
Assistant General Counsel'for Hearings and Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas T. Martin Regional Administrator, NRC Region I 475 Allendale Road King of Prussia, PA 19406 James Taylor Director of operations U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 l
i-BEFORE THE UNITED STATES NUCLEAR REOULATORY COMMISSION
- , :ne Matter of )
) Occket No. 50-333 New yerk F:ver Authority ) License No. OPR-59
) Enforcement Action James A. FitzPatrick ) No.91-053 Nuclear Power Plant )
)
ATTIDAVIT IN SUPPORT OF REQUEST TOR NONDISCLOSURE OF DOCUMENT I, Ralph E._Beedlei being duly sworn, depose and state as follows:
- 1. I am Executive Vice President, Nuclear Generation, New York Power Authority (the Authority),.and as such I am responsible for_ the review.of the information referenced herein sought to be withheld from public disclosure. I am submitting this affidavit in connection with the provisions of 10 C.F.R. Il 2.790(a)(6) and 2.790(b) of the Commission's regulations.
2.- The May 31, 1991 Answer of the New York Power Authority to Order Modifying License (the Answer),
which i:s designated "Contains-Personal and confidential Information Subject to Nondisclosure Under 10;C.F.R. l'2.790" and which is. sought to be withheld, constitutes information that is contained in the personnel files or similar files of the Authority within the meaning of Section 2.790 and/or is utilized by the Authority in perrannel determinations and/or includes specific references to the conduct or performance of named individuals.
- 3. The Authority considers documents relating to personnel matters to be confidential when they contain evaluations of or comments'en named Authority employees or other employee-specific information, public disclosure of which would infringe upon the employee's privacy.
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- 4. This information is of a type customarily held in confidence.by the Authority and, other than its
-disclosure to the Commission, is intended to be held in confidence and not disclosed to the public.
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- 5. The.information sought to be withheld is being transmitted to the commisston in con!idence pursuant to the provisions of 10 c.T.R. 5 2.790 Vith the understanding that it is to be received Ln confLdence and withheld from puelle disclosure by the co. tmi s s i o n .
6.
The information sought to be withheld, to the best of my knowledge, is not available in public sources, and any disclosure to third parties has been and will to
=ade pursuant only to regulatory requirements that provide for the maintenance of the information in confidence.
The above six paragraphs are true and accurate to the best of my knowledge, information, and belief.
Executed this 31st day of May, 1991.
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-C0 .. c Ralph E. Beedle State of New York County of Westchester Subscribed and.svorn to before me this 31st day of May, 1991 1 . . ~ . \ w e u J. %W' H i-Notary glablic
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% Amen, sense er %,m w.- MM e r ' M h Egres onesser W. 7,1 L
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- 1 BETCRE THE UNITED STATES NUC:. EAR REGULATORY COMMISSION CtNTAINS PERSONAL AND CONTIOENTIAL INFCRMATICN SUBJECT TO NONDISCLCSURE UNDER 10 C.T.R. 52.790
)
-In the Matter of )
) Docket No. 50-333 New York Power Authority ) License No. DPR-59
) Enforcement Action James A. FitzPatrick ) No.91-053 Nuclear Power Plant )
)
ANSWER OF THE NEW YORX POWER AUTHORITY TO ORDER MODIFYING LICENSE I. Introduction on May 2, 1991, the U.S. Nuclear Regulatory Commission (NRC) issued to the New York Power Authority (the Authority) an i==ediately effective order Modifying License (the order) on the docket of the James A. FitzPatrick Nuclear Power Plant. 56 Fed. Raj.
22,022. The order modifies ti;, operating license for the FitzPatrick plant to provide that one of its Senior Reactor operators, David M. Manning, "shall not participate in any licensed activity" under the operating license without the prior written approval of the NRC Regional Administrator for Region I. The letter accompanying the order makes it clear that Mr.
Manning may not have any involvement in activities l
subject to FitzPatrick's Part 57 license. Letter dated 1
May 2,-1991' from James H. Sniezek, Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations, and Research. The order provides the Aut..ority with an opportunity to submit an answer and request a hearing. i
.The Authority hereby submits this Answer to the order. In submitting this Answer, the Authority assures the NRC that in no =anner does the Authority condone, or tolerate, the use of drugs or other substances which may impair an individual's ability to properly perform his or her job, or which may pose any threat to the public health and safety.
Notwithstanding this uncompromising position, the Authority submits this Answer to the Order. The decision as to who is fit to work at the FitzPatrick plant _is properly the management responsibility of the Authority as licensee. In this case, the Authority was in the_best. position to make thic decision. The Authority followed all applicable laws and NRC regulations. It made an informed, reasoned decision concerning the fitness of Mr.- Manning. Without a compelling reason to the contrary, the NRC should .
support the Authority's decision.
The Authority understands that Mr. Manning will be responding to the Order to Show cause issued to him r
suspending his Part 53 11:ense. The Authority will n t address the issues relat;ng to that Show Cause Order.
For the reasons stated in this Answer, the Autnerity subetts that the facts and 1&J do not support issuance of the Order. Accordingly, the Autnority requests the NRC to recensider this matter and, upon such recensideratien, to rescind the Order.
II. Backereund on October 9, 1990, Senior Reactor Ope 2ator David M. Manning was summoned f or a random drug test in a:cordance with the requirements of 10 C.F.R. part 26 and the FitzPatrick fitness for duty program.' After the specimen he provided failed the temperature requirements of Section 2.4(g)(14) of Appendix A to Part 26, Mr. Manning refused to comply with the request for another specimen. In accordance with section 26.73, the FRC was notified by telephone. (The NRC was also notified, in writing, on october 22, 1991, that Mr. Manning had been removed from the performance of licensed duties in accordance with the provisions of 10 C.T.R. $55.25.) Pursuant to Section 26.27(b)(2), Mr.
i Manning was suspended by the Authority for fourteen days and was referred to the espioyee assistance program (EAP) for assessment and counseling. It was determined that Mr. Manning had a substance abuse 3
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} problem. A program for treatment and follow-up was developed by the EAp and by the Authority's management.
- his rehab111tation program was initiated promptly.
Mr. Manning had c mpleted the thirty-day in-
) patient phase of his rehabilitation !
When the Authority decided, on the basis of t
satisfactory manage =ent and medical assurances pursuant to Section 26.27(b)(2), and after continual dialogue j with the NRC in this regard, to reinstate his unescorted access to the FitzPatrick plant. Mr.
Manning was not assigned to Part 55 licensed reactor
- operator activities. Rather, he was assigned to the Planning Department at the FitzPatrick plant. In March communication with the NRC, the Authority contemplated the reinstatement of Mr. Manning to Part 55 activities, and so advised the NRC.
It was only then that the NRC initiated an investigation of Mr. Manning. The office of Investigations interviewed Mr. Manning on April 24, 1991. On the basis of the interview, the KRC concluded that (i) Mr. Manning had attempted to avoid the detection of illegal drug use through the submission of a bogus specimen when he was summoned for a random drug !
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test en October 9, 1990: (ii) Mr. Manning had misrepresented on an April 14 1986 certificate of Medical History that he had no drug habit; (iii) Mr.
Manning had refused to cc.mply with a request for ancther specimen on October 9, 1990; and (iv) Mr. 'a Manning had disregarded the prohibition in NRC $*
requirements on illegal drug use. Those conclusions, the NRC determined, " demonstrate a lack of trustworthiness by Mr. Manning and an inability or unwillingness to comply with the Commission's regulations." order, 56 Ted. Reg. at 22,023.
The NRC consequently issued to Mr. Manning, on May 2, 1991, an Order suspending License (Effective Immediately) and Order to Show Cause Why License Should Not Be Revoked (the Show Cause order) . 56 red. Reg. 22,020.
Simultaneously, the NRC issued the Order ts the Authority. The order prohibits the use by the Authority of Mr. Manning in any Part 50 activities.
Thus, it precludes his reinstatement to Part 55 activities, revokes the reinstatement of his unescorted access, and otherwise prohibits the employment of this highly trained Authority employee in any productive and useful capacity. on May 2, in response to the order, the Autherity assigned Mr. Manning to offsite janitorial duties.
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" untrustworthy" because of his attempts to avoid detection as a substance abuser, and therefore unverthy of being allowed to engage in any activities subject to the TitzPatrick Part 50 license. As will be demonstrated below, itsSection III. C., this issue of "unt ru s tworthine s s" is not a separate problem warranting punishment rather it is part of an illness for which rehabilitation is encouraged and reinstatement permitted, in accordance with the provisions of Part 26.
Part 26 makes it clear that management is the decision-maker on the issue of whether reinstatement is appropriate after suspena, ion and referral to the EAP.
Section 2 6.27 (b) (2) states that '(s)atisfactory management and medical assurance of the individual's fitness to adequately perform activities within the scope of (Part 26) must be obtained before permitting the individual to be returned to these activities."
Thus, Section 26.27(b) (2) authorizes the Authority to reinstate Mr. Manning upon satisfactory management and medical assurance of his fitness -- that is, of his successful rehabilitation. (of course, the 4
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l rehabilitation prtcass is On-ge nq and does not stop with the steps Mr. Mann:ng nas already undertaken. Eta section III. D., bel:v.)
The reinstatement of Mr. Manning, therefore, was the responsteility of the Authority. Mr. Manning was suspended in accordance with NRC fitness for duty requirements. The NRC has acknowledged that it "telieves that future work assignments of a worker '
following removal under the fitness for duty policy should be determined by licensee management." NUREG-1354, FITNESS FOR CUTT IN THE NUCLEAR POWER INDUSTRY:
RESPONSES TO PUBLIC COMMENTS 12-13 (May 1989) (Response No. 12.5.3). "[T]he (fitness for duty) rule does leave rehabilitation and return to work decisions to licensee management discretion." KUREG-1354, supra, at 12-11 (Response No. 12.4.5); 3,3,1 A.13.g NUREC-13 8 5, FITNESS FOR CUTY IN THE NUCLIAR POWi A INDUSTRY: RESPONSES TO IMPLEMENTATION QUESTIONS 12 (Oct. 1989) (Question No.
9-7) (a satisfactory management add medical assurance of fitness for duty "is up to each licensee to determine.") There has been no showing in this esse l that the Authority has exercised its authority and discretion to reinstate Mr. Manning in a careless The present EAP provides for management involvs. ment and follow-up counseling and testing that did not exist in the Authority's pre-Part 26 program. As the
. NRC is aware, Mr. Manning unsuccessfully par:'Acipated in l this earlier program in 1988.
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manner. On the contrary, the fact is that the Authority carefully !c1.*cwed the progressive steps in
- s Part 26 program and had a sound casts for allowing n:m to return to work.
The rehabilitation of employees with substance abuse problems is one of the objectives of Part 26, which requires an EAP at each cor.mercial nuclear power plant.
"The NRC would encourage licensees to pursue successful rehabilitation of workers who are found to have a substance abuse problem through a first confirmed positive drug or alcohol test." NURIG-1354, sucra, at 12-10 (Response No. 12. 4.1) . The NRC has recognized that rehabilitation of an employee with unique or special skills furthers the interest of safe plant operatient (5)ecause many nuclear power plant workers possess unique skills as a result of training (years e.g., of specialized reactor operators),
terminating these employees for positive drug or alcohol test results would result in the loss of their knowledge and experience to the industry. Temporary transfer to nc safety-related jobs while they undergo treatment and then reinstating their unescorted access authorizations when they demonstrate a successful treatment
- outcome would preserve the resources these employees represent. In fact, a rehabilitated eenleven who in hiahly trained and ernerienced may be more fit for duty than a lema errerienced amoloves who has never used druom. The opportunity for
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t re a tt.e nt (at the option of the licensee) e.ay pecmote safety by ensuring that the labor pool fur highly sxilled nuclear power plant workers is not unnecessarily diminished.
N'J AI O - 13 5 4 , surra, at 13-2 (Response No. 13.1.5)
(emphasis added).
Mr. Manning is a highly trained and skilled Authority employee. His successful rehabilitation following the october 9, 1990 positive drug test determination is specifically encouraged and contemplated in Part 26 and in the NRC guidance on its implementation.
The reinstatement of his unescorted access is the prerogative of the Authority under Part 26 and the guidance on its implementation, and the Authority has exercised this prerogative responsibly.
The order usurps that licensee authority and defeats the entire purpose of rehabilitation and the EAP established by the Authority in accordance with Part 26,
- 8. THE AUTHORIT. RAS THE MANA0EMENT RESPONSIBILITY To DETERMINE WHO WILL PERTORM DUTIES SUL7ECT To ITS LICENSE The NRC ostensibly issued the order not because Mr. Manning had a substance abuse problem, but because he attempted to conceal the problem from the NRC and the Authority and thus " demonstrate (d) a lack of
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trustworthiness . . . and an inability or unwillingness to comply with tne c===tssion's requiations." By naking its own determination that Mr. Manning is antrustworthy, the NRC has undercut the decision made by the Authority as to Mr. Manning's ability to perforn his jeb. The decisions concerning the reliability and trustworthiness of its personnel have traditionally been the responsibility of management. This deference is appropriate as it is the licensee's management that is on site and able to observe the demeanor of employees, assess their attitudes and states of mind, t and make relevant employment decisions.
The NRC has recognized a licensee's competence to make sound management determinations regarding the fitness of the personnel it employs and to whom it grants unescorted access to the plant. For example, the Industry Guidelines for Nuclear Power Plant Access Authorization Programs, Rev. 8, October 3, 1986, reerinted 1D 53 Fed. Reg. 7534-7535 (1988) (endorsed by the NRC in March 1988 as part.of the proposea policy statement on nuclear power plant access authorization programs) note that "the finsi ytanting and controlling of unescorted access authorization is the responsibility of the utility." rurther, the proposed policy statement itself states that "(t]he commission has concluded that it is appropriate for each licenses 10 -
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who operates a nuclear pcVer plant to establish an access authorization pr: gram to ensure that individuals
.-no require unescorted access to protected areas or v;tal areas of their facilities are trustworthy, relisele, emotionally stable, and do not pose a threat <
to c: =it radiological sabotage." 53 Fed. Reg. at i 7534-35.
The deference to plant management in satters of employee trustworthiness is also reflected in the recently promulgated regulation on personnel access authorization requirements for nuclear power plants.
56 Ted. Reg. 18,997. The new regulation will entrust each licensee with the duty to screen (by background investigation, psychological assessment and behavioral obse rvation) applicants seeking unescorted access to assure that they are trustworthy and reliable and do' not constitute an unreasonable tisk to the health and safety of the public. Saction 73.56. Thus, the NRC has clearly established the responsibility and ability l of each licensee to form its own judgme" s on the I trustworthiness of plant employees.
l L The Authority's management was uniquely qualified to fulfill this " screening" responsibility with respect to Mr. Manning. It had first-hand experience with Mr.
Manning both before and during his rehabilitationi it was able to observe his demeanor and evaluate his work 4
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and to discuss his qualif t:ations with his supervisors and colleagues. Additt:nally, the active role the Authority's management played in Mr. Manning's rehacilitati:n provided it with invaluable input into a well-reasened decision. '
When the Authority's e.anagement judged Mr. Manning to be qualified to return to work (tutt, that he was L
trustvorthy and otherwise fit for duty) and reinstated his unescorted access, there was a sound basis for its decision. 11a Section III. D., below. Since the Authority was responsibly exercising the authority which the NRC has concluded should be exercised by a nuclear power plant licensee, there is no basis for the NRC to overturn the decision to reinstate Mr. Manning's grant of unescorted access.
C. THE NRC'S CONCERN WITH THE EMPLOYEE'S "UNTRUSTWORTMINESS" IS DIRECTLY RELATED TO Stf85TANCE ABUSE, FOR WHICH REMABILITATION IS CONTEMPLATED UNDER PART 26 The order prohibits the assignment of Mr. Marning to Authority controlled activities under Part 50
'because of his actions in relation to a randos drug test, as described in Section II. It is these actions o
which, according to the NRC, demonstrate a " lack of trustworthiness" on the part of Mr. Manning. The
, Authority believes that Mr. Manning's past conduct is i
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l not ggI 13 indicative of a lack of future trustworthiness, but rather is symptomatic of the !
I sucstance abuse problem for vnten he undervent rensetistion.
Medical authorities have recognized that one of '
the characteristics of a substance abuse problem is a desire to conceal the problem. Noted one expert, (w] hen drug dependence has developed the character and strength of a natural drive, the addict has not necessarily lost all voluntary control over his drug consumption. The individual
-- at least in the case of humans -- always retains some power of modifying his behaviour.
Ter a lona while the druc-decendent eerson tries to hide his drue consumetion or to steer it into socially acceeted f o rm s .
The alcoholic.tries as long as possible to remain sober at work and perhaps also while driving. The intravenous addict attempts in the beginning to conceal from his relatives that he is taking drugs. The same applies to the average person in regard to sexual instinctst he postpones his sexual activity until the situation is suitable.
It should be observed that unreliability, maniculatiott and simulation, se characteristic of addic13 ... are in fact a defence for their craving for drugs, and this phenomenon -- which might be called
'pseudopsychopathy,' and which clinically is' often erroneously considered to be a manifestation of primary character disturbances -- is strongly marked even in those cases where the individual has not demonstrated any abnormal psychological tendencies before the inception of addiction.
We recognize this behavior from the defence ,
of sexual behaviour in every-day life. Zag instance, we know that _an individual who is usually honest and reliable in other reseacts, may lie when he has to erotect nome artramarital love affair which is vital to
- higi Natural drive makes the unfaithful husband prevaricate about repeated committee meetings, business trips, scientific 13 -
congresses or what ever smoke screen he uses to hide his instinctive behaviour.
Se erot, The nature of Addictirn, in ORUC OEPENCEHCE:
CL*RRENT PROB LEMS AND ISSUES 87 (M.M. Glatt ed. 1977)
(citat;:ns emitted)(emphasis added).
It is apparent that the NRC seized upon the conceal =ent aspect (1 m , the "untrustworthiness") of Mr. Manning's substance abuse problem as the basis for its order mandating an indefinite banishment after the october 9, 1990 positive drug datermination.
There is nothing in Parts 26 or 55 to authorize such a draconian measure.' Rather, NRC regulations focus on and provide the mechanism for salvaging the career of someone who is willing to undergo rehabilitation. 10 C.F.R. I 2 6. 2 7 (b) ( 2 ) . The NRC apparently has separated-the substance abuse problem for which Mr. Manning underwent rehabilitation from the deceit that the symptomatic desire to conceal his problem precipitated. There is no medical or legal basis for such a distinction.
The order implies that the NRC expects a nuclear power plant employee with a substance abuse problem to be open, honest, and candid regarding his or her use of drugs. Such an expectation ar-y not always be i
L The NRC did propose, in April 1990, to amend Parts y 26 and 55 to provide for enforcement action against operators involved in illegal drug use. 55 Fed. Reg.
14,288. Those amendments have not been promulgated.
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realistic. Trem a review of the nuoerous requirements in Part 26 designed to Protect the personal privacy of nuclear eepioyees (111. Eugt, 10 c.T.R. I 26.29 fpreteetten of inferr.ation): Part 26, Appendix A.
Sect;:n 3.1 (protection of e=ployee records)). it is clear that the NRO, t:o, recognizes that a substance abuse problem is indeed a matter that a reasonable person would not wish to be made public.
The distinction the NRC apparently would draw between a substance abuse problem and the need to conceal that accompanies it also appears to suggest that the trustworthiness of an individual with such a problem would still be suspect even after the problem is rehabilitated. In the abssnce of a substance abuse problem, however, there is no reason to assume that Mr.
Manning would attempt to cheat in a randon drug test, misrepresent a drug habit on a certificate of Medical History, or otherwise attempt to deceive the NRC or fail to comply with NRC requirements.
! The NRC contemplates and encourages the i
rehabilitation of employees with substance abuse problems. 111 aanera11v section III. A. above. The Authority believes that the successful rehabilitation of Mr. Manning, discussed in Sectien III. D.,
eradicated the substance abuse problem, including the deceit that accompanied it.
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D. THE AUTHORITY KAD A SUBSTANTIAL BASIS TCR REINSTATING THE EMPLOYEE'S UNESCtRTED ACtESS AND ASS:tNING HIM TO PART 50 Ot: TIES Even thougn Part 26 allows fer rehabilitatten and p e rr.it s re instatement , the Autheraty is well aware that reinstatement is not, and should not be, auto stic. :t c is not enough for an employee to " sit out" a 14-day suspension and to visit the EAP. The Authority will not allow an employee back to work until it is assured that his or her rehabilitation efforts are sincere and effective.
In the instant case, the Authority was in an excellent position to Judge Mr. Manning's state of mind and the effectiveness of his rehabilitation because it played an active role in the rehabilitation process.
The following outlines Mr. Manning's rehabilitation and the Authority's involvement in each step of it. This involvement demonstrates the Authority's ability to determine Mr. Manning's progress and his fitness (including trustworthiness) to return to work.
o on October 9, 1990, Resident Manager William Fernandez II met with Mr. Manning and explained the consequences to him of his refusal to provide a second specimen for testing. (Mr. Manning was informed that the refusal would be considered a " positive" test result, and that under the NRC's fitness for duty (Part
- 26) regulations Mr. Manning would be suspended for at 1
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least 14 days and referred to the EAP for assessment and counseling and f:r the estac;;shment of a plan fer l treatment, follow-up and f uture e ployment. )
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Mr. Manning was .. mediately relieved of his unes::rted access badge and suspended frem licensed I
l duties for c minimum period of 14 days.
o on October 9, Mr. Fernandez informed the NRC cf l t
l the event pursuant to 10 C.F.R. I 50.72. The NRO was
{ also apprised of all relevant background information concerning Mr. Manning.
1 o Cn October 9, i
FitzPatrick's Human Resources '
Manager Patrick Frawley telephoned the EAP contractor, Managed Health Network (KHN), and requested that MHN '
ccunsel and assist Mr. Manning. :
o on October 10, Mr. Travley discussed Mr.
Manning's circumstances with Branch I t
Manager for MHN.3 l
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3 In order to protect, as much as possible, Mr.
Manning's privacy, we vill not detail the substance of the discussions with his EAP counselor.
l Mr. Fernandez updated NRO regional and head parters staff by telephone on october 12.
e on October 15, Mr. Trawley spoke with Mr.
Manning regarding various personnel related matters.
o I on October 16, Mr. Frawley again spoke with !
relayed the substance of a conversation she had with concerning his i
initial =eeting with Mr. Manning.
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After Mr. Manning's second meeting with
, Mr. Trawley and had another telephone conversation (on October 18).
reported that Mr. Manning agreed to follow the-recommended triatment plan outlined by which included inpatient treatment (for approximately one month) at c on October 18 the Authority was advised that Mr. Manning would attend and that he was scheduled for an evaluation and admission on October 22.
O Mr. Fernandez notified the NRC in writing on october 22 (by letter to Regional Administrator T.
! Martin) that " pursuant to the provisions of I 55.25 ...
l (David Manning) has been removed from t% perforitance
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i i of licensed duties." The notification further advised l the NRc that "Mr. Manning will not be assigned to l j
i perform any tune:1:ns requiring an active license until tne pr:vist:ns of 5 55. 2 5 and 5 5. 53 (f) are met." i
- Mr. Manning was admitted to en October 22 for a c:urse of treatment that was anticipated to last approximately one month.
e on October 24, Mr. Trawley spoke with oncerning Pt. Manning's admission to the inpatient facility and his agreement to participate in '
the in-house treatment plan.
o During the course of Mr. Manning's treatment at Mr. Fernandet had several conversations (on October 29, Never.ber 16, and November 26) with NRC I
personnel. Mr. Fernandez explained the Authority's procedures and its plans for returning Mr. Manning to work provided he successfully ecmpleted the treatment program and satisfied the EAp and FitzPatrick manageaant that he was fit to work. The NRC did not raist any objections to the course planned by the l
Authority.
0 on November 2, 8, 14, and 19, Mr. Trawley spoke a
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! o On Nove c er 21. Mr. Manning was discharged fr:n o
Mr. reawley had another discussten witn
- n November 22. Mr. Frawley was advised that i
leared Mr.
Manning to return to work on Noveder 22.
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o A meeting was held between Mr. Manning and i
l FitzPatrick management on November 26. Mr. Manning's former supervisor (Roger Locy) was present, as were Mr.
j Frawley and Mr. Fernandez.
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I o on or about November 28, after receiving a written report from MMN summarizing Mr. Manning's treatment, Mr. Fernandez and Mr. Frawley reviewed the i report wi dvised them that ;
Mr. Manning had met the treatment goals. They discussed the final assessment and prognosis and the recommendations and arrangements for further treatment.
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one additional factor was considered in making the determination to restore Mr. Manning to work at i
FitzPatrick. Despite his admitted use of drugs, no !
impairment was ever evident during the entire period he worked at the plant (from January 1981). His )
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9 4 supervisors found him to be intelliger.t, knowledgeable and conscientious. His work was consistently good. He earned several prometa:ns: in January 1982 (to Nuclear Operster B); Oecember 1982 (to Nuclear Centrol tperst:r;; and August 1983 (to Senior Nuclear Operator). In January 1987 and September 1988 he was temporarily upgraded to the position of Assistant Shift Supervisor to assist with refueling outages. He actively participated (as the only member of the team from the operations grcup) in the simulator project and he =ade an important contribution toward the success of that project. On January 12, 1990, due to his accomplishments he was again upgraded to Assistant Shif t Supervisor in order to fill a vacant position.
His promotions through varicus positions in the Authority is evidence of the value his supervisors placed on him. Those supervisots continued to support him even after luarning o't his substanco abuse problems. They expressed-villingness to help him resolve his difficulties and had no reservations about his returning to work.
o on or about November 27, Mr. Fernandez advised the NRC of the plan to return Mr. Manning to work in non-licensed activities immedittely. Mr. Fernandes ,
further advised the NRC that he would contact the NRC at a later time, whenever he felt it was appropriate to
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I j restore Mr. M'>nning to Part 55 11:ensed duties. The NRC did not object to this plan, !
! o on cece.ner 3, Mr. Manning's unescorted access badge was restored and he was assigned to work in the l
- Plann;ng Capart ent.
)
j o on Oecerter 6, Mr. Travley discussed Mr.
Manning's progress with o
1 on Decer.ber 14, Mr. Trawley again discussed Mr.
l Manning's progress with l
I l
j o Another conversation between Mr. Frawley and
. en ,a
. ,, ... m .dwisee M.. ,ra.1.,
that Mr. Mannin l
1
f .
j .
i i
i i
l and had been successfully performing duties in the Planning Department for 3 conths. Mr. Fernandez 4
considered reinstating Mr. Manning to licensed duties.
Discussions commenced with the NRC on what process would be required for reinstatement. The investigation I
by the office of Investigations and the issuance of the
- order and the Show Cause Order followed shortly thereafter.
It should be noted that Mr. Manning gave the Authority no reason to regret its decisions to reinstate his access authorization and to contemplate '
restoring him to Part 55 duties. During the time Mr.
Manning verked in the Planning Capartment (from the time of his reinstatement until the time of the NRC order precluding him from such work), Mr. Manning performed his work enthusiastically and reliably.
Since he worked in close proximity to Mr. Fernandez and Mr. Frawley, and under the i=cediate supervision of Mr.
Douglas Lindsey, he was of ten observed by FitzPetrick ,
management; there was nothing in his performance or demeanor to indicate that he had reverted to drug or r other substance use. This was confirmed by the results l ,
of his-follev-up drug tests. Moreover, Mr. Manning impressed the Authority management with his integrity in the face of the investigation conducted by the NRC's Office of Investigations. When questioned by the NRC investigator, and in contrast to his actions when ne was a substance abuser, Mr. hanning was forthright about his past use of drugs and his attempts to cover up that usage. His sincarity affir=ed the Authority's opinion that Mr. Manning had been successfully rehabilitated, and-that he is a trustworthy employee, e fit to perform meaningful work at FitzPatrick.
E. UNLISS RESCINDED, THE ORDER WILL SIGNIFICANTLY UNDERMINE THE EFFECTIVENESS OF THE-EAP, WHICH WAS ESTABLISHED IN ACCORDANCE WITH PART 26, BY ERODING THE CONFIDENCE OF EMPLOYEES The-rehabilitation,of empicyees with substance abuse problems is one of the objectives of Part 26. In accordance with the requirements of Section 26.25, the Authority established an EAP for the rehabilitation of these employees part of the service offered by the EAP is " confidential assistance."
The NRC has emphazi:sd throughout the promulgation and implementation of Part 26 that an essential element ofLa successful EAP is the confidentiality extended to employees it assists. The requirements of section
4 26.25 in this regard are quite clear. "The EAp requirement of Sect; n 26. S specLfies the staff of suen programs are to provide confidential assistance except .nere safety c:nsiderattens must prevail. The NRC telieves that the plain meaning of these ter s is sufficient for this rulemaking and that further clarification in the rule is not required." NUREG-1354, 11REA, at 13-4 (Response No. 13.2.4).
In view of this objective of Part 26 -- the rehabilitation of employees with substance abuse problems -- and of the importance of confidentiality to the success of an EAP, the Authority is puzzled and distressed by the order. Mr. Manning underwent rehabilitation and the Authority had adequate assurance that he was fit to return to work. His access authorization was reinstated, in accordance with Part
- 26. His rehabilitation follovilig the October 9, 1990 positive drug test deterNination prompted the Authority to contemplate his reassignment to Part 55 activities.
Indeed, his rehabilitation, the Authority believes, l underscores the value of Part 26. For several months, the NRC appeared to agree that this was a " success ,
story." The NRC was advised of each stage of that rehabilitation between October 9 and December 3, when l the Authority reinstated Mr. Manning to Part 50 l
activities and restored his unescorted access. Tha NRC l
l l
t
O acceded to these acts and never openly second-quessed the Authority's decisions on these matters or the management and medical assurances on which they were based. The NRC similarly was advised of further rehat;.';tative progress between December 1990 and March 1991, when Mr. Manning was with the Planning Departnant at the FitzPatrick plant. The NRC appeared to agree, in the course of the continual dialogue between the Authority and the 11RC, that his rehabilitation was successful. Indeed, the NRC never questioned that rehabilitation and the Authority's decision to reinstate him until the Authority contemplated the reassignment of Mr. Manning to Part 55 activities.
The order defeats the entire purpose of an otherwise successful reliacilitation. Part 26 encouraged the Authority to rehabilitate Mr. Manning.
However, when it appeared that Nr. Manning was adequately rehabilitated 'to be assigned to Part 55 activities, the NRC preciudad that assignment through issuance of the order. Part 26 required the Authority to assist Mr. Manning on a confidential basis.
However, the publication of the order and the press release regarding the order breached that confidentiality.
The Authority expects the order to have a chilling effect on self-referrals to the EAP. Publicity
' ll ' ulu u mi _ . . ..
accc:panying the NRC's actions may send a message to an '
employee, who might otherwise approach the EAP for assistance with a substance abuse problem, that his or ner e ployment and privacy are at risk. One could fair;y ::nclude, for example, that a self-referral could result in the same kin 6 of embarrassment and banishment as now face Mr. Manning.
It would be of no comfort to another employee that the NRC ostensibly issued the Order not because Mr.
Manning had a substance abuse problem but because he is perceived as having deceived the NRC and the Authority.
Even if the employee never attempted to submit a bogus specimen in a random drug test or to misrepresent a drug habit on a Certificate of Medical History, the Authority believes he or she might still reasonably '
conclude that the order is the result of a substance abuse problem, and that a self-referral for a drug abuse problem could result in a similar order.
Moreover, if perhaps another employee actually has misrepresented a substance abuse problem on a certificate of Medical History, then the order i
l virtually guarantees that that employee will not self-L refer to the EAP for assistance.
l The Authority had ample basis to conclude that Mr.
Manning was rehabilitated and, accordingly, assigned L him to Part 50 activities. It believes its restoration
-2s -
44 of his unescorted access was a testament to the purpose of the EAP .. a purpose in which the Authority belteves and to Whicn ene Authority is committed.
this was not a situation where an NRC licenses made a decision to reinstate a substance abuser without careful deliberation. The NRC may rest assured that the Authority would not have reinstated Mr. Manning's unescorted access authorization, or have initiated his reassignment to Part f5 activities, if it had not been completely satisf4 ad that he had been sincere in his rehabilitative efforts and, in fact, had been rehabilitated.
The Authority believes the order frustrates the purpose of the EAP and erodes the confidence of its employees in the program. It is important for those employees to recognize that the successful resolution of a substance abuse problem will not result ir aftar-the-fact punishment. The rescission of the ot?er will not undo the damage it already has caused. However, such reset sion will avoid further damage and restore l some employee-confidence in the rehabilitative process.
I
e e
IV. cenetusien for the foregoing reasons, the Authority requests that the NRC reconsider tnis matter and rescind the Order of May 2, 1991 modifying license DPR-59 issued to P.he Power Authority of the State of New York. It upon reconsideration the NRC denies the Authority's request to rescind the Order, than the Authority requests a _
hearing on the Order.
Respectfully submitted,
[(m E ). W s Ralph E. Beedle Executive Vice President Nuclear Generation New York Power Authority Dated: White Plains, New York May 31, 1991 4
STATE OF NEW YORK COUNTY OF WEST':MESTER Subscribed and sworn to before me this of,/,,# ,,,, day of May, 1991 a^ L c A &> tM .) _
NotarfPublic
- =a.
lesmary Pusan, affees inst sea.40satam thanthed in Wasashasaur Camusummen bares sese, ,1
(
Hr. Ralph E. Beedle November 5, 1991 You should understand that the NRC may have cause to review this determination in the future, for example, if the scope of a Freedom of Information Act request includes your withhe'd information. In all review situations, if the NRC makes a determination aherse to the above, you will be notified in advance of any public disclosure, Sincerely, Original Signed By:
Brian C. McCabe, Project Manager Project Directorate 1 1 Division of Reactor Projects - I/II Office of Nuclear Reactor Regulation
Enclosures:
As stated cc w/ enclosures:
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NAME :CVogan pp :BMcCabe: avl $^:RACapra 4- : :
DATE : l! / h /91 :ll/g /91 :il/6/91 : :
OFtlCIAL RECORD COPY Document Name: FP REQ FOR W/H INF0 t
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