ML20205T700

Comment Supporting Proposed Rule 10CFR26 Re Initiation of Fitness for Duty Program at Facility.Need for Program Based on Presumption That Nuclear Power Activities Require That Personnel Be Free from Impairment of Illegal Drugs

ML20205T700
Person / Time
Site:	South Texas
Issue date:	11/01/1988
From:	Goldberg J HOUSTON LIGHTING & POWER CO.
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-53FR36795, RULE-PR-26 53FR36795-00019, 53FR36795-19, NUDOCS 8811140357
Download: ML20205T700 (9)

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w. m . ,g.g The Light b,A .a mm company P.O. Box 1700 llouston. Texas 77001 (713) 228 9211 llouston Lighting A: Power gg dw. 9 Nflbk b81h File No.: C03.15 Secretary of the Comnission Attn: Docketing and Service Branch U. 5. Nuclear Regulatory Commission k'ashington, DC 20555 Comments on Proposed Rule - 10 CFR 26 Fitness For-Duty Program The above proposed rule was published in the Federal Register on September 22, 1988. Houston Lighting 6 Power Company (HL6P) offers the following comments relative to thir proposed rule.

H14P initiated a Fitness For Duty program at the South Texas Project Electric Generating Station (STPECS) in January of 1986 which substantially exceeds the criteria given in the propose ( rule. The need for this program was based on the presumption that activities associated with nuclear power are of such a nature as to require that personnel be fres from the impairments of illegal drugs and alcohol. To be successful, the progr :n had to provide a strong deterrent. Our program features testing for illeFa1 drugs and alcohol (both baseline and random) for all personnel on the plant site and mandatory denial of site access for any person with a positive tes*; result. Based on statis*ics to date, we consider that our program has been successful in accomplishing its goal. HIAP considers it imperativo that any final rule not force H1AP to relax this program.

As listed below, our detailed comments relative to the proposed rule are attached. If you have any questions, please call me at (512)972-8434.

'ery Truly Yours.

t s.t J. H. Coldberg Group Vice President, Nuclear

.1HC/MAM/j ks netachments: 1) Responses to Questions Posed by NRC

2) Responses to Issued Raised by Commissioner Roberts

3) Comments on Proposed Rule 8811140357 001101 PDR PR 26 53FR36795 PDR L3/CZ/NRC A Subsidiary of Ilouston Industries incorporated M/ O

t Attachment 1

, Responses to Questions Posed by NRC

1) Are there practical alternatives to random testing, not discussed herein,

, that provide equivalent deterrence and detection of drug use? -

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Response

At this time. HL&P is unaware of any viable alternative to random drug testing and we consider random sampling an_ essential element of an effective program to deter drug use.  ;

2) What practical' alternative, not discussed herein, exists that could determine physical and mental impairaent?< *

Response

At this time, HL&P is unaware of any viable alternatives.  ;

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3) What rates of random testing and ratesting provide an acceptable f probability of detection and adequate deterrence? What should be the basis for any future modifications in the rate for random testing?  ;

Chairman Zech and Commissioner Carr believe, in view of the military's experience with testing cited in section IV of this notice, that a 300 '

s percent annual testing frequency is more, appropriate to ensure that the ,

testing program provides an adequate deterrent. They request specific l comments as to whether a 300 percent annual testing frequency '

(Alternative B) or Alternative A in *26.24 (a)(2) in the proposed rule is the more affective testing scheme. Is there some other alternative that -

i should be considered? D.ta to support recommendations are requested.

Response

HL&P has been conducting random testing using a criteria of efLh ty five ]

(85) percent prob. Sility of a test in a twelve (12) month period. Less i than one (1) percent of the random tests have been positive, resulting in  :

action against personnel. Based on the relatively small rate of positive [

indications. HL&P believes that the random tests are a deterrent and that any increased rate would provide substantially diminishing returns with a 4 sharp increase in cost, j HL&P estimates a minimum of a $100,000 annual cost above the current annual cost for random testing of $260,000 to comply with the three hundred (300) percent frequency criteria. In addition, HL&P believes I that a three hundred (300) percent annual testing frequency  !

i would be disruptive and could be viewed as a form of harassment by plant [

personnel. In order to acnieve a 300 percent probability of a test in a &

twelve (12) month period for a site population of 3,000, HL&P would have [

to conduct 9,000 tests annually. The probability distribution would i cause thirty three (33) percent of the population to b; tested four or i more times a year.

4) Are there effectiva alternatives to the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" issued by Health and Human Services ,

l, (HHS) on April 11, 1988 (53 FR 11970) that the Commission should adopt as t minimum standards for fitness for duty programs at nuclear powet plants?  !

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ST HL AE 2816 Attechm:nt 1 Page 2 of 5

Response

HL&P believes that the reporting and review of results requirements in the guideline are inappropriate for use at nuclear power plants.

The guidelines give criteria for the testing of Federal employees and are oriented to rehabilitation of individuals with positive test results.

Nuclear power plants should be able to follow their own particular policies so long as their implementing denial of access or invoking termination is the same or more severe than described by the HHS guidelines.

Reporting of test data would be burdensome to each utility. Test data documentation should be retained and retrievable in the event of an inquiry.

5) Are there any additional quality control measures or appeal procedures that should be considered to protect the rights of individuals being tested to ensure that individuals are not mis identified in the process as drug users, and to provide a mechanism to correct any errors?

Specifically, who should have access to knowledge of the results on unconfirmed initial test results (employee, immediate supervisor, higher management levels)? What procedures are necessary to assure appropriate privacy?

Response

An individual's failure of the drug and alcohol test should be known only to designated company management. Failure should be reported only as a positive test with no indication of the metabolite or the value.

Results of positive tests and test documents and data should be released only to the tested individual upon receipt of a written request by that individual.

At the South Texas Project Electric Generating Station, it is the responsibility of the Fitness-For Duty administrative staff to ensure the confidentiality of all test files, in compliance with HL&P Interdepartmental Procedures. In addition, personnel who work in Fitness For Duty are prohibited from having relatives who work on the plant site,

6) Should the Commission provide general guidance on potential impairments, such as alcohol abuse and prescription drugs? How should such guidance be implemented in a fitness for-duty program? Should any random testing program be expanded to encompass legal drugs and alcohol? If so, should the response to a positive test for alcohol be the same as for illegal drugs? What should be the response to a positive test for legal druga?

L3/GZ/NRC

ST-HL AE 2816 Attechmsnt 1 Page 3 of 5

Response

It is not appropriate for the NRC to provide guidelines on impairments for prescription drugs. This determination must be made by a medical doctor based on the individual in question.

HL&P requires personnel to report use of prescription drugs to their i supervisor if the drug may produce a work impairment. It is then up to '

the supervisor, in conjunction with guidance from the prescribing physician, to determine if any action must be taken in accordance with l HLAP's Continual Behavioral Observation Program. As with illegal drugs, urine testing does not measure impairment, only the presence of the drug metabolites, and HLAP requires a valid verifiable prescription in the employee's name for controlled drugs which show a positive test result.

Failure to provide such a prescription results in the same action as taken for a positive illegal drug test.

An NRC requirement to require testing for alcohol would lend support to our current practice of alcohol testing. If a requirement for alcohol testing is required, a uniform cut off rate for all nuclear power plants ,

should be invoked. HL&P would support the .04 BAC impairment level as referenced in the EE1 guidelines, but requests this cut off level be incorporated in the NRC regulation. If the .04 BAC cut off level is not incorporated, HL&P would continue to utilize the 10 BAC recognized by the State of Texas as the legal level of intoxication.

HL&P considers a positive alcohol test the same as a positive drug test.

7) How long should a person be barred from performing activities within the scope of the proposed rule following rems, val under the fitness for duty policy, and under what circumstances should reinstatement be allowed?

How long should records of this removal be retained to facilitate future employment decision?

Response

l HL&P revokes the unescorted access of an individual participating in he l site Employee Assistance Program and receiving treatment. Upon t successful completion of the treatment program and enrollment in an I l after care schedule, consideracion is given for reinstatement of unescorted access.

l HL6P denies access to any individual with a positive preliminary test.

If the confirmation test is positive, the individual is dismissed i I

permanently; echerwise, he/she is reinstated. HL6P considers it essential for the safety of the public that access to the site be '

permanently denieo to any individual who fails the confirmation test for drugs and alcohol. The only reinstatement should be based upon a l negative confirmation test.

HL&P intends to retain these records for the life of the plant.

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8) Are the categories of workers identified for testing appropriate, or is [

some other population (whole site, control room operators only) <

necessary/ sufficient for safety? '

L3/GZ/NRC l

ST HL AE-2816 Attechasnt 1 Page 4 of 5

Response

The categories provided are acceptable as a minimum; however, HL&P considers that all personnel who work at the nuclear plant must be free from the effects of illegal drugs ard alcohol. The risk that these effects may have outside the power block are not as immediate in nature, l but, no less real, considering activities such as engineering, design, quality, procurement, fabrication, administration, etc.

In addition, allowing a non zero tolerance population in close proximity to the rero tolerance population would be counter productive to maintaining zero tolerance.

9) Should training on the items covered under 3,4, and 5 of 26.22(a) be i provided to all employees covered under the rule so each employee can recognize drugs, indications of the use, sale, or possession of drugs, and impairment of a person covered under the rule and know what action to take?

Responsa Yes, HL&P achieves this tnrough General Employee Training I, Continued Behavioral Observation Program Training, and information distributed annually during a Drug Awareness Week. '

10) Finally, the Commission is especially interested in receiving comments on ,

i the extent to which NRC regulations on fitness for duty should address other regulated activities not currently within the scope cf this proposed rule. Regulated activities being considered for rulemaking or a  ;

commission statement of policy include: '

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• The construction and preoperational testing of nuclear power plants prior to the issuance of a license and the loading of nuclear fuel, j

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• The operation of non power reactors used in academic research, and l

) commercial applications.

• Fuel cycle facilities involved in the possession and processing of plutonium of uranium in highly enriched, low enriched, or natural j 4

uranium forms. ,

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• The utilization of nuclear materials in other activities st.ch as '

4 radiography, product irradiation, radiopharmaceutical production, t nuclear medicine, uranium milling activities, production and use of various sources, and radioactive waste disposal activities. ,

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ST HL AE 2816 Attechtsnt 1 Page 5 of 5

Response

i Speaking only of those entities listed above which are conducted at the l nuclear power plant site, HL&P considers it important that those entities be required to have fitness for-duty programs, for the saine reason as  !

described in response to eight (8) above. H1AP has no insights regarding j comment on the other activities listed. +

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Attachment 2 Response to Issues Raised By Commissioner Roberts (page 191)

Commissioner Roberts has asked for the responses to comments he had made regarding the proposed rule being sufficient to accomplish the stated general objective of providing reasonable assurance that nuclear power plant personnel are not under the influence of any substance, legal, or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties.

The Commissioner has particular concerns about the rule's application of limited categories of the workers to be tested and the focus on illegal drugs with exclusion of abused legal drugs and alcohol. Also, he questions the need for random testing if a utility does testing for cause.

Responsa HL&P considers that all personnel at a nuclear power plant site have a potential impact on the safe operation of the facility. It is true that those with unescorted access have the opportunity for a more immediate impact on safe operation; however, this does not exclude activities such as engineering, design, quality, procurement, fabrication, etc. which typically occur outside the protected area. HL&P believes that the Commission's proposed population is adequate as a minimum, but utilities must not be prohibited from applying a more stringent criteria.

HL&P believes that alcohol testing should be included in the proposed rule with a standard minimum cut off level. However, it is not

, appropriate for a utility to regulate the use of prescription and over the counter drugs. HL&P requires the personnel taking "legal drugs" to notify their supervisor if the drug could be an impairment to personnel or plant safety. Under the guidelines of the Continual Behavioral Observation Program, the supervisor, in conjunction with the guidance from the prescribing physician, determines appropriate actions.

Random drug testing is an essential element to provide sufficient deterrent to prevent illegal drug use and alcohol abuse from impeding the safe operation of a nuclear power plant. Without random testing, the viability of the program for producing a drug and alcohol free workplace is nil.

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Attachment 3 Comments on Proposed Rule

1) Part 25.23 - Contractors This section requires that contractor personnel be subject to, and abide by, a fitness for duty program. Furthermore, contractors are required to l not assign any personnel previously removed from any other nuclear power l plant without the knowledge and consent of the licensee.

l l Comment HL&P concurs with the intent of this part; however, it will be difficult,

, if not impossible to enforce. Due to privacy considerations, the

l. contractor may not know that an individual has been discharged from

! another utility pursuant to a fitness for duty requirement.

2) Part 26.24 Chemical Testing ,

The Commission specifically invites comments on a rate of testing that would provide a suitable deterront. Two alternatives are proposed; others would be considered.

! Comment HL&P has been conducting random testing using a criteria of eighty five i (85) percent probability of a test in a twelve (12) month period. A failure rate of less that one (1) percent has been achieved in a two year l period leading to the conclusion that the random test program is l

achieving its goal of deterrence. Additional testing would be expected l to produce a diminishing return for substantially increased cost. I l

I HL&P estimates a minimum of $100,000 annual cost above the current annual cost for random testin5 of $260,000 to comply with the three hundred (300) percent frequency criteria. In addition HL&P believes that a thr4e hundred (300) percent annual testing frequency would be disruptive and could be viewod as a form of harassment by plant personnel.

3) Part 26.24 Chemical Testing Subpart (d) allows licensees to conduct initial tests while subpart (c) requires laboratories to conduct preliminary screening tests and confirmatory tests on all specimens forwarded to them.

Comment If a licensee conducts a screening test, it is not necessary for the laboratory to re perform the screening test. This is an added cost that produces no benefit. HL&P estimates this requiremenc will additionally cost in excess of $150,000 annually, and delay confirmation of each test by at least forty-eight (48) . sours.

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ST HL AE 2816 Attachosnt 3 Page 2 of 2

4) Part 26.24 - Chemical Testing Subsection (c) requires, through che KHS guidelines, that a medical review officar review and interpret positive, confirmatory test results.

NIDA guidelines Reporting and Review of Results section requires the Medical Review Officer review and interpret positive, confirmatory test results and then refer the employee to the Employee Assistance Program (EAP).

Comment Utilities must be provided with an option to dismiss persornel who test positive without referral to an Employes Assistance Program. HLAP provides the Employee Assistance Program for self referrals prior to a scheduled test or a test failure. Once an individual is summoned for a random test and/or is tested positive he/she is denied site access, permanently unless the confirmatory test result is negative.

The NRC is obviously committed to establishing, through a rule, standard requirements for drug testing at licensed power reactor facilities.

Various members of congress have voiced strong support for such requirements as well. The real test of the Covernment resolve of this matter can best be demonstrated by mandating the exact saac requirements for testing of NRC personnel who require unescorted access at licensed power reactor facilities. Unless federal employees are placed under similar testing requirements at the plants to which they may be assigned, this rule is likely to be subject to challenged by the courts.

L3/CZ/NRC