ML20195H421

Comment Opposing Proposed Rule 10CFR26 Re Fitness for Duty Program Which Includes Random Drug Testing

ML20195H421
Person / Time
Site:	Monticello
Issue date:	11/18/1988
From:	Larson C NORTHERN STATES POWER CO.
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-53FR36795, RULE-PR-26 53FR36795-00271, 53FR36795-271, NUDOCS 8811300387
Download: ML20195H421 (7)

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EMM(e 7/*I Northkhbkates Power Company 414 N<onet Mall e 6 $0 NovdE.,ier u .18, 1988 Mr. Samuel J. Chilk Socrptary of the Commission U.S. Nuclear Regulatory Cocanission Washington, D.C. 20555 ATTENTION: DOCKETING AND SERVICE BRANCH RE: Proposed Rule Fitness for Duty Program $3FR36795 (September 22, 1988) Recuest igI Comrents Northern States Power Company appreciates the opportunity to review and comment on 10CFRPart26 relating to the proposed Fitness #or Duty Rule.

We have the following comments to offer pertaining to the questions which appear on Pages 36796 and 36797 of Thursday, September 22, 1988 of the Federal Register.

1) There are alternatives to random drug testing which in our estimation, previde equivalent dsterrence and detection of drug use. We believe a program where all supervisors r e thoroughly trained in behavioral observrtior, provides an effective meana to refer employees who need help from an employee assistance program.

Supervisors are in the best position to evaluate behavioral changes in their employees without subjecting virtually everyone to random drug tests. We feel random testing infringes on the privacy of innocent individuals, questioning the persons "eracity without suspicion. Testing for cause, where there is reason to believe a person may not be fit for duty or reasonable suspicion exists, provides the opportunity to send the person for a fitness for duty exam. This clearly results in a more acceptable determination without randomly testing virtually everyone.

2) Supervisors are closest to their employees and can see diminishing performance which could be attributed to physical and mental impairment. Supervisors are not to diagnose but rather refer employees to a Fitness for Duty Exam for a medical detersination.

3) As described in question #1, NSP does not support random tesdng as outlined *.n 10CFRPart26 relating to Fitness for Duty. d 'e feel the testing rates are excessive, and random testing implies guilt 8811300387 881118 PDR PR 26 53FR36795 PDR bkb

S. Chilk November 18, 1988 Page 2 despite the fact statistics clearly show a very small percentage of positive drug tests. The costs associated with the proposed rule clearly outweigh the benefits received through random testing.  ;

4) The minimum threshold standards as outlined for the initial and confirmatory testing seem reasonable and should be used.

5) Ve recommend that results of initial positive drug tests nat be revealed until a confirmatory positive test is completed. At that time, only positive results need be communicated to the individual.

Confidentiality is of great importance and should be taken into consideration for all individuals. An appeal process should be a part of every licensees Fitness for Duty Program.  ;

6) NSP opposes random drug testing for illegal drugs and alcohol.

Indiviouals who are taking mood altering drugs, including persciption drugs and non perscription drugs purchased over the counter, should be required to report this information to their l supe rvisor. Failure to do so should result in disciplinary action, l

7) The licensee should determine how long a person is barred from performing activity following removal under their Fitness for Cuty Program. Policies should be developed by the licensee to address circumstances of reinstatement. Retention of records regarding an incident of removal should corresp,nd to screening records retention.

8) The proposed rule goes beyond reasonableness regarding the testing population. Employees and others who staff the TSC and EOF most likely have unescorted access already and should not be singled out ,

for speciel random testing. NSP believes pre employment testing, and' testing for cause coupled with an effective behavioral observation program, is sufficient for safety. Contractor employees should be tested either by their employers testing program or at the licensee's facility.

9) NSP supports the training of supervisors but n21 escorts. Escorts should not be singled out and licensees must have the latitude of using various people as escorts without an unreasonable training commitment. NSP supports Sections 3, 4 and 5 for 26.22 (a) of this rule regarding training. Furthermore, due to the brief encounter between the phrson escorting another individual it seems pointless to give behavioral observation training.

10) NSP feels NRC regulations ohould apply to licensees who operate nuclear power reactors only. i l.

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2 S. Chilk- '

November 18, 1988 '

Page 3 .

Here are specific comments which relate to the list of subjects called out in Part 26 - Fitness for Duty Programs.

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26.2 (Scope) It is unnecessary to have special requirt.ments for I the licensees Technical Support Center (TSC) or Emer5ency '

Operating Facility (EOF).

i i NRC personnel and their subcontractors should be required to i

comply with a Fitness for Duty Program equivalent to any  !

program established for licensees. Licensees should have the authority to bar entry on site of NRC personnel and (

their subaontractors who appear unfit for duty. The NRC l program on Fitness for Duty must provide the same p otection  ;

i as the licensees'.

! i l 26.3 (Definitions) The word psychoactive is uncommon and we j j suggest this word be deleced or another 'nore commonly i

! understood word be substituted, such as "mood altering". We ,

j feel the definitions for various drugs must be more closely

. tied to statutory definitions for controlled substances, i i

26.3 (Definitions) For cause testing should be part of a medical '

evaluation which may and may not be related to drugs or alcohol. i 26.3 (Definitionr) Impairment is extremely difficult to determine and measure. This should be deleted, j

3 26.10(a) (General Performance Objectives) The proponed Fitness for Duty Rule is out of the scope s d 1..*ent of the regulation. t

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) 26.22 (Training of Supervisors and Escorts) All reference to

[

q escort (s) should be deleted and no special training should  ;

be specified.

l 26.22(c) (Training of Supervisors and Escorts) NSP suggests the initial training period be extended from 3 months to 6 months 1 following assignment as a supervisor. t

\ I' J 26.23(a) (Contractors) Licensees should not be required to have j formal written agreements with contractors nor formally l i, review contracto:: programs. Ita licensee should conduct  ;

reviews of contractors to attest to ;he existence of their  ;

(contracto';) FFD program.

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$ 26.24 (Chemical k sting) The proposed rule is overly restrie.tive l j and we suggesc "60 days" in place of immediately. Sixty p i days provides a a reasonable administrative period. I i [

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S. Chilk November 18, 1988 Page 4 26.24(a) 2(i & 11) NSP does not support random drug testing.

Alternatives A & B as written in the proposed rule are unclear should licensees want random testin8 NSP favors pre employment testing and testing for cause coupled with an.

effective behavioral observation program. To allow random drug testing is to imply supervisors can overlook behavioral changes in individuals with the likelihood that random testing will pick up drug use. To randomly drug test a large number at each licensee's site could result in compromising safety and result in considerable cost to all licensee's without corresponding benefits.

2 6 . 24 ( ." ) NSP wishes to have behavioral observation, which in turn recognizes behavioral changes, and refers emp.ayees to a medical doctor who makes a medical determination.

26.24(b) Licensees should not have ro submit blind samples. The ,

- threshold levels as determined for the initial and d

confirmatory drug tests are acceptable for the drugs mentioned. In the interest of drug test acceptance and re-iprocity between licensees, the drugs shown in the DHHS Cuidelines should be the basis for industry testing.

(c) Licensees already interface with LLEA by virtue of their Security Plans and another interface aust not be established solely for Fitness for Duty.

16.25 (Employee Assistance Programs EAP's) NSP suggests the last sentence be deleted since it is covered in the first sentence. l 26.27 '

(Management Actions and Sanctions to be Imposed) Discipline l

is clesrly beyond the scope of the NRC and they should not dictate discipline terms.

26.27(a) (Management Actions and Sar.etions to be Imposed) e Contractors must be responsib.'.e for their own program of discipline concerning their oen esployees and must not be the nuclear licensee's concern.

26.27(b) Dismissal suggestions is not within the scope of the NRC's regulatory authority, i 26.27(b)(1) This should be strictly a licensee's decision.

27.27(b)(2) This raises serious legal questions as to denial of employment for a potentially disabled person, and thus ,

conflicts with federal law. ,

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S. Chilk '

November 18, 1988 Page 5 27.27(b)(3) The individual must show written evidence of rehabilitation to reinstate unescorted access. It is virtually impossible to verify abstinence from drugs over three years as the rule indicates.

For employees of the licensee who have been suspen'ed for unescorted access, it should be necessary to have .a EAP review of e.reatment before the individual is permitted to l receive unescorted access again. l f

26.29(b) (Protection of Information) There should not be multiple files and procedures as this could decrease confidentiality.

26.70(b)(1) (Inspections) NSP opposes formal written agreements i between licensees and contractors and advocates a reviev for program verification only. I 26.70(b)(2) Ve suggest deleting the word "effective" as this word i is very subjective. Licensees should merely show compliance with the Fitness for Duty rule and NRC (

inspectors should not be permitted to inspect private medical records. The NRC thould be able to inspect program elements to verify compliance but an individuals medical file is privileged information.

26.27(d) (Recordkeeping Requirements) NRC Inspectors should verify the process only and no records should be forwarded to the NRC. We (licensees) would have FFD statistical information available for inspections. All information disclosure vould be anenymous.

26.80(a) (Audits) NSP favors the term "reviews" rather than audits.

26.80(a) is too prescriptive as compared to the Safeguards area (security) and Emergency Planning. Ve favor deleting the sentence which calls for "implementation for corrective action" as this is the contractors responsibility. Audits should be conducted every three (3) years and not 13 months as stated in the rule since this is excessives The word "effectiveness" is too subjective and should be deleted.

The following comments are related to the Appendix to the Proposed Fitness for Duty Rule (Fitness for Duty Pragram Elements not included in the proposed 10CFRPart26).

Accendix ouestion al The rule should not be expanded to include engineering and quality assurance activities outside a plant protected area since plant safety is affected operational activie.ies inside the protected area.

S. Chilk November 18, 1988 Page 6

&2Randix Ouestion =2 Effective measures already exist at sites to deal with determining sale, possession, or use of alcohol and drugs.

It is unnecessary for the NRC to prescribe further licensee actions and should be left strictly to licensees.

Anoendix Duestion m3 The Fitness for Duty program performance data proposed goes far beyond what is necessary. Data should be made available to NRC inspectors but licensees should not be required to report directly. NRC inspectors inspecting Fitness for Duty should be i concerned with statistics / trends and not specific data on individuals. '

i The following is in response to the NRC query on application of the backfit rule to the rulemaking on preposed 10CFRPart26:

The cost for licensees to implement the Fitness for Duty rule will be  ;

very substantial and we question whether this rule adds any protection to the health and safety of the public or the plant.

Minnesort brur and Alcohol Testine Statute As of September 1,1987, Minnesota has in effect a comprehensive drug and alcohol testing statute (Minn. Stat. 181.950 181.997). It requires employers to develop clear written policies and guidelines for drug and alcohol testing. While it permits certain pre employment drug l testing, the statute specifically excludes random testing except for ,

safety sensitive positions. Implementation regulations from the 1

Minnesota Department of Health are expected to be forthcoming in the i near future. Under the Minnesota statute, parties to a collective bargaining agreement may agree to a drug and alcohol testing policy 3

more comprehensive than the state statute, but that policy must meat or 4

exceed the minimum employee protections. (Minn. Stat. 181.955).

In order to conclusively resolve any question of federal pre emption, the proposed regulations should clearly and affirmatively state that '

the drug testing requirements of this proposed rule, for the employees affected, would superseda any state or local regulation. See Alverado

v. Vashincton Public Power sucolv system Vash. ,P 2 (Vash. S.C.T. July 15, 1988, No. 53616 3).

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Federal Collective Barrainine The Ceneral Counsel of the National Labor Relations Board has issued a

) policy statement regarding employer adoption of drug and alcohol i

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S. Chilk November 18, 1988 Page 7 testing programs. This document is entitled: "Guideline Memorandum Concerning Drug or Alcohol Testing of Employees," Rosemary Collyer, General Counsel, September 8, 1987. The memorandum concludes that drug and alcohol testing policies or programs for both current employees and job applicanus affect the terms and conditions of employment and clearly are mandatory bargaining subjects under Section 8(d) of the National Labor Relations Act. Indeed, this guideline concludes that even where a workplace has had stringent rules regarding testing and/or the use or posssssion of drugs or alcohol, the implementation of a new policy is a substantial change is working conditions requiring collective bargaining.

If collective bargaining of the output of this rulemaking were required, it might not result in a labor agreement which conforms to the rule. NSP recommends that the finsi rule also con *;ain a clear pre-emption of its specific requirements over collective 'oargaining responsibilities under the National Labor Relations Act. In addition, the tile should permit an employer to have until 120 days after expira* .on of all existing collective bargaining agreements to fw;.'.ement the rule. In meny cases, drug testing is already the subject of an agreement between a union and an employer, and is thus currently included in the agreement between the parties. Providing 120 days after expiration of all extsetcg collective bargaining agreements would facilitate orderly incorporatioriof these requirements into existing agreeuents and would give emoleyers an opportunity to negotiate ancillary or additional drug testing issues during negotiations for renewal of those agreements. Requiring employees to negotiate mid term issues under an impasse theory is not a satisfactory alternative.

Please contact us if you have any question concerning our comments related to the proposed Fitness for Duty tule.

Sincerely,

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C. E. rso Vice Pre ent Nuclear Generation c: NUMARC