ML20206M644

Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program.Supports NUMARC Proposal That Entire Final Rule Be Made Effective 180 Days After Publication & Redefinition of Drug Abuse.Requires Commission Justify Rule Per 10CFR50.109

ML20206M644
Person / Time
Site:	Calvert Cliffs
Issue date:	11/18/1988
From:	Tiernan J BALTIMORE GAS & ELECTRIC CO.
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-53FR36795, RULE-PR-26 53FR36795-00331, 53FR36795-331, NUDOCS 8812010170
Download: ML20206M644 (11)

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• .f p~f .7 { h BALTIMORE  :

I OAS ELECTRICAND f XME TCO 3

• N C '

CHARLES CEN1ER R O. BOX 1475 BALTIMORE MARYLAND 21203

• ES E' 23 P12 '2( '

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JostpH A.TIERNAN

' f Vict Peggiotist NWCLEA4 (ast ney f

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November 18,1988 i

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, Secretary of the Commission l

} U. S. Nuclear Regulatory Commission t j Washington, DC 20555 l

ATTENTION: Docketing and Service Branch f

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SUBJECT:

Notice of Proposed Rulemaking - 10 CFR Part 16. "Fitnesufor-Duty

Program * - $3FR36795 (Scotember 22. 1988) - Reouest for Commts Gentlemen-7 fi

) The following comments are submitted by the Battlinore Gas and Electric Company in i response to the Federal Kegister Notice of September 22, 1988, concerning the Proposed

{ Rulemaking for 10 CFR Part 26. The Commission sought cumments regarding various i i

aspects of this proposal, which hr important implications for the entire nuclear  !

utility industry. [

\ I I The Baltimorr Gas and Electric Company is a riuclear licensee responsible for the safe j 4

and secure operation of the two uniu of the Calvert Cliffs Nuclear Power Plant in 3 l Lusby, Maryland. As owner and operator of this facility, which has a 1650 megawatt i capacity and aupplies over 50% of our customers' electric service, the Company is i committed 'o the maintenance of a drug-free work environment at this plant and at al!

! our work locations.

For this reason, we have rarefully reviewed the proposed Rule, indeed, we have studied j the issues embodied in thr proposed Rule for over a decade. Our concern has been to i help the Commission and the indbstry to achieve the objectives of a drug-free workplace f s

and a workplace free of the effects of such siibstances. Another important objective, I in our view, is that the Rule shettid be fully compatible with the Commission's Access  !

l Authorization Program. With those objectives, which we strongly endorse, in mind, our f I

comments and recemmended language changes are respectfully submitted for the j Commissions' consideration. i i -

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Secretary of the Commission i November 18,1988 Page 2

) We would welcome the opportunity to discuss these comments and recommendations with l Commission representatives as the process of prepsring a Final Rule continues.

Very truly y/ours, t

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JAT/JhtO/htDR/dtm Attachments ,

cc- D. A. Brune, Esquire

J. E. Silberg, Esquire j R. A.Capra. NRC I

S. A.htcNeil, NRC W. T. Russell, NRC D. C. Trimble/V. L. Pritchett, NRC T. hiagette DNR 4

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A'ITACliMENT (11 isAI TIMORE GAS & ELECTRIC COMPANY'S

GENERAL COMMENT

S ON Tile PROPOSED ITrNESSFOR-DUTY RUI.E in a number of related Rulemakings, guidelines, and other proceedings during the past decade, the Commission has evolved a variety of means to help ensure that personnel with unescorted access can be relied upon to behave properly while en-site. That evolution has involved such diserse factors as detailed background checks, including criminal history checks; psychological evaluation to help assure reliability and trustworthiness of personnel seeking unescorted access; and continued behavioral observation by responsible supervision to monitor behavior or performance changes which 4

might signal the need for further action, in one way or another, each of these actions has been designed to help the nuclear industry and the Commission fulfill an important commitment to our customers and to the American public. That commitment, w hich we categorically endorse, is that elestricity from in nuclear power plants w!!! be generated and supplied in the sa$st and most efficient manner possible. Nuclear licensees have been, and must continue to be, prepared to adapt promptly to technological change and to maintain a totally "state of-the art" operation in support of this commitment.

One respect in which utilities have continually made such adaptations has been in their efforts to assure that persons who seek unescorted access to the protected areas of a nuclear facility are at all times fit to perform their assigned tasks. We agree with that objective and we, therefore, strongly endorse NUMARC's comments on this Rule, contamed in their memorandum to the Commission dated November 18, 1988. We particu-larly reiterate their point that diversity among licensees mandates that some flexibil-ity be built into the Final Rule.

Gisen such flexibility, each licensee will most effectively achiese complic.nce with the R ule's requirements while taking due account of its particular corporate culture and unique operating conditions.

A case in point is the relatively unique perspectise from which the flattimore Gas &

Electric Company will implement the Rule's requirements. Although many of our contract personnti have union affiliations, our employees are not represented by a labor union.

We recognize that this places us in a somew ht different position from most other nuclear licensees. As you will see, it also has a direct impact c:: our specific comments.

For instance, we recognize and endorse the Commis; ion's view tlist this Rule sets minimum standards for certain licensee actions. We appreciate, howeer, the fact that licensees are authorized to take 'more stringent action

• than is otherwie specified by the R ule. Each licensee will have to consider whether, on a general basis or in a particular case, it is appropriate to take actions beyond the "minimums

• prescribed by the Commission, fo. many, such consideration will involve discussion with the employees' bargaining representatives.

For a non-union licensee, the situation is different. Any totally non-union employer has earned the trust of its employees. Ideally, this was accomplished by treating employees fairly as individuals, and with consistency throughout the organization, llow es er, the "unescorted access

• concept applicable at a nuclear pow er plant is not

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1 ATTACHMENT (1) i l BALTIMORE GAS A ELECTRIC COMPANY'S

! GENERAL COMMEPmi ON Tile PROPOSED FITNESS-FOR-DUTY RULE l i  ;

i precisely duplicated at any other location. This may make it more of a challenge to  !

1 meet the goal of treating all employees consistently from one facility to the next. '

J In practical terms, this meant that at present employers vary widely with respect to  !

the action they would take if an employee were found to be using, or under the influ- l ence o f, illegal drugs. Some, given certain circumstances, would initiate major  !

. rehabilitative efforts. Others, facing the same circumstances, would view this as a disciplinary problem warranting action up to and incluoing discharge.

Employers in the latter group might well be unwilling to reinstate the individual's ,

unescorted access. They might also, in view of the totalliy of the employee 4 perfor- ,

4 mance record, be reluctant to transfer such an individual to a non nucleat facility.  :

l This could particularly be the case in view of the fact that, if the licensee agreed to '

! such a transfer, other employees and the public might conclude that drug abusers are ,

' acceptable

• at the fossil plant, albeit unacceptable at a nuclear facility. Nothing could be farther from the truth, and no utility would wish to send such a message.

j. The 1121timore Gas & Electric Company has, for years, urged employees and family members with drug / alcohol problems to come to our Company's Employee Mediial Assistance Service. We have provided substantial help when the employee has done so. If, instead, supervision has identified the problem as a result of the individual's deteriorating work performance or observed behavioral changes, we have approached it as l a disciplinary problem. In the absence of .xtenuating circumstances, which would have l to be established on a case-to-case basis, discharge from employment has been the l likely result, 1

l The proposed Rule will create a number of variables in this basic situation. For l instance, we endorse the inclusion of alcohol abuse as an appropriate topic for l

consideration as part of this Rule. But experience indicates that different licensees 4

have historically treated alcohol abuse on the job very differently. Moreover, in many j cases, the 12mt licensee treats s! cobol abuse quite differently from the way it treats 3 drug abuse.

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The flaitimore Gas A Electric Company, for instance, has been much more receptive to l

undertaking rehabilitative efforts when an employee is discovered to be under the influence of alcohol, than would be the cause if the employee were found by supervision to hase abused, or reported to work under the influence of, othec drugs.

There are a number of practical reasons for this dichotomy. First, alcohol use, so long as one does not operate a motor vehicle or otherwise create a public disturbance while under the influence, is normally not illegal; use of drugs at issue here 11

{ lllegal, absent extraordinary medical circumstances. Second, professionally monitored j rehabilitation efforts hsve proven statistically to be very successful when dealing

' with alcohol, much less so as concerns abuse of other drugs, Finally, except in cases of extreme ptrformance or ochavior dettrioration, experience j has indicated that is is substantially more difficult for supervisors to detect drug

! abuse than to dinern alcohol abuse on the job. This increases the likelihood of l

ATTAC11 MENT (1)

BALTIMORE GAS A ELEC11 tlc COMPANY'S

GENERAL COMMENT

1i ON *nlE PROPOSED FITNESS-FOR-DUTY RULE l

effective follow-up action by employers when dealing with employees' alcohol problems, in contrast, our experience suggests that supervisors are less likely to be able to recognize an employee's repeated drug abuse, even with training and even when the drug problem has been previously identified, i

! In view of such considerations, many of our specific comments emphasire, in one way or 4 another, the desirability of licensees' retaining a reasonable degree of fleaibility in j implementing the Final Rule. We recognize the important distinction between unescorted access revo. ation and loss of employment. We understand the Commission's general

{ inclination to regulate only with respect to issues of unescorted access. But, to asoid costly and unnecessary litigation as to the Rule's intention, we will urge in our

. specific comments that the Commission clarify tN nature and extent of the "more i stringent action' that licensees are authorized te sake.

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We believe that thi Commission did not inte nd to foreclose the possibility that the full panoply of appropriate employment acti as would be available to the employer, depending upon the facts of the individual case, up to and including discharge. The Commission need not, in fact, it should not, endorse particular disciplinsry actions;

) it can, and s5ould, simply indicate ,nat those actions are not "off limits

• to l licensees. We will provide specific language by which this could be spelled out in the

' R ule.

i Our specific comments generally do not concern narrow issues such as ' cut scores

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' testing rates". We believe it appropriate, instead, to address broader policy issues,

! such as the allocation of responsibility between licensee and contractor, while keeping j in mind the overall issue of how best ta assure the fitness for-duty of a!! persons j with unescorted access.

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Thus, we do not object to the concept of random screening for persons having unescorted access. 11ut, in our view, the Commission need not adopt either the '300V alternative, I or the '90% and 30V cption in order to deter drug use effectively. Rather, we are convinced that the objectives of deterrence and detection can be achieved as effee-tis ely, while imposing a lower cost burden on the licensees and, ultimately, their l

customers. This can be accomplished by revising the sampling rate provisions to

! conform with the recommendation.: made by NUMARC. Under that formulation, an annual

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sampling rate requirement equal to 100% of those having unescorted access would be 1 mandated.

1 We hope you will consider the specific comments which follow in light of our overall concern that nuclear facilities must be kept free from drug sad a!cohol abuse. The maintenance of public confidence in nuclear plants and trust in the integrity of wod s at those facilities requires no less.

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ATTACIIMEffr (2)

BALTIMORE GAS A ELECTRIC COMPANY'S SPECIFIC COMMEN'I3 ON TIIE PROPOSED FirNESS-FOR-DUTY RULE

1. Although not a part of the Rule as published for comments, it is our understanding that a Final Rule may contain provisions for dealing with alcohol abuse by persons having unescorted access to the pro-tected areas of nuclear power plants. Assuming that this is, in fact, under serious consideration, we have four comments.

First, we recognize that if the Commission were to establish as a cut-off level a blood alcohol concentration of 0.04%, this would be consistent with the level set for com-mercial motor vehicle operations by the Federal liighway Administration, $3 FR 39044 et sea (October 4, 1988). While the established levels for impairment and intoxication vary from State to State (in Maryland, they are 0.07% and 0.10%, respectively), we do not object to the imposition of a 0.04% figure.

Second, if effective screening for alcohol use is to be performed, it is our view that this should be accomplished by use of a blood test, Our medical judgement is that blood tests will be more accurate and, therefore, more defensible than any alternative means nf seeking to detect the presence of alcohol.

Third, we urge that the Commission state clearly that alcohol and drug tests may be performed at the stme time as part of the same program. Licensees should be free to screen for both alcohol and drugs in e single program, whether it is done pre-employ-ment. *for cause,* post-accident, or randomly. The alternative, under which two separate programs would proceed along separate tracks, would be doubly disruptive to operations, twice as costly for licensees, and no more effective in terms of deterrence or de:ection.

Fou rth, as we discussed briefly in our general comments, the Commission should recognize that licensees have historically treated alcohol abuse differently, in many instances, than those same licensees have treated drug abuse. We, therefore, encourage the Commission to refrain form applying. *across the board," the provisions of Paragraph 26.27 to alcohol abuse.

For instance, a 14 day removal from uncnorted access may well be appropriate, as a minimum action, when an employee has been discovered to be abusing drugs, it is, howeser, probably that, in many instaten such an extended removal from access will serve littlc rehabilitative purpose w hen dealing with alcohol abuse. Therefore, we hope that the Commission will clarify that the management actions and sanctions iden-tified in the proposed Rule as appropriate in cases of illegal drug use, may not be equally appropriate in instances of alcohol abuse, eseoeeeeeeee

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ATTACilMENT (2)

BALTIMORE GAS A ELECHLIC COMPANYS SPECIFIC COMMEKIS ON Tile PROPOSED FTI' NESS-FOR-DUTY RULE I

Turning to the specific provisions of the proposed Rule, we again emphasize our endorsement of the NUMARC comments found in their letter of November 18,1933. Ne i shall not cover each item in detail, but the Commission should understand that we agree with NUMARCs specific recommendations. The comments which follow concern provisions of the Rule of special interest or applicability to the operations of the Baltimore Gas

& Electric Company.

In many instances, we shall track NUMARC's comments, specifying those of particular interest or applicability, in some cases, our discussion relates to items about which NUMARC has expressed less concern than we feel, given our unique perspective, discussed above.

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l. We particularly support NUMARC's proposal that the entire Final Rule,

, not solely the random screening provisions, should be made effective 180 days after publication. This is appropriate for the reasons of

.l consistency and uniformity discussed by NUMARC. It is also indicated l because, assuming that the Commission incorporates alcohol abuse as j part of the Final Rule, additional changes will be required as a

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2. We endorse NUMARC's proposed redefinition of ' drug abuse

• because the i concept of *1mpairment' is, or should be, inconsistent with the j objective or a workplace free of illegal drugs or their influence.

J For the same reason, the definition of ' impairment' and other refer.

j ences to it should be stricken from the Rule.

i j 3. NUMARC proposes to harmontre the proposed Rule's ' suitable inquiry *

definition with the requirements of the Access Authorization Program.

We agree that the Commission ought not to place these two programs at I cross purposes. We should also note that, as set forth in the

! proposed rule, the *:uitable inquiry" provision requires that

. licensees request and divulge information which, for legal reasons, most employers do not request and will not divulse. The provisions of j the Access Authorization Program constitute an effectise middle j ground. They assure that the licensees will obtain sufficient valid 1 information to make an informed decision regarding access, while not exposin2 those making the decisions to unnecessary legal risk.

4. NUMARC's proposed change to Paragraph 26.10(a) further underlines the I necessary interrelation between the ' reliability and trustworthiness

• orientation of the Access Authorization Program and the proposed

) Rule's emphasis on a drug free work environment. The interdependence of these programs should be strongly endorsed by the Commission, i

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ATTAClIMENT (2)

IIALTIMORE GAS A ELECTRIC COMPANY'S SPECIFIC COMMENTS ON Tile PROPOSED ITrNESS-FOR-DUTY RULE

5. Paragraph 26.20(b) is the first opportunity for NUMARC to diffe enti-ate "li:ensee employees" from persons employed by contractors, ven-dors, and others. It is critical, in our vie w, that the Commission maintain and s upport this differentiatiori. Separate programs can be established by contractors for their personnel, as appropriate; nothing in the Rule should create the appearance that licensees are responsible for making their progrrms available to anyone other than persons directly employed by that licensee.

6. For the rea on set out by NUMARC, the provhions of Paragraph 26.22 dealing with the training of escorts should be deleted. We would go a step beyond NUMARC's proposal, and recommend that these provisions be deleted in their entirety. Clearly, escorts will, in most instances, hase no farailiarity with the tyg;ical behavior of the person being escorted. It is impractical, for this reason, to expect escorts to recognize behavioral change when they are not aware of baseline behavior against which such

• changes' might be judged. General orientatics training provides sufficient understanding of the issues insobed for the limited needt of the escort.

7 NUM A RC's proposed change to Paragraph 26.23(a! is central to an understanding of the valid objectives of a Fitness for-Duty Program.

To be effective, such a program Ort invohe individual accountability for each employee's adherence to program standards, in then circumstances, the licensee may elect to take on this accountability for contractor personnel, where the contractor may 1.ot be capable of doing so effectisely on its own. In other circumstances, the licensee may properly insist that a contractor assume this responsibility directly, where it appears equipped to perform this function.

In either instance, the ultimate responsibility for the safe func-tioning on the plant remains with the licensee. For this reason, the licensee must have the option to decide when a contractor should be held accountable to establish its own Fitness for-Duty Program.

Concomitantly, the licensee should be free to determine when a con-tracter should not be espected to maintain its own program. The existence of this licensee option is critical for purposes of estab-lishing responsibility under the program. It should be unes tisocally stated in Paragraph 26.23(a).

3. As indicated in our General Comments, we suppori the NUMARC '100%

standard' for random drug screening, rather than either Alternathe "A" or 'B' in Paragraph 26.2 t(a)(2). The NUMARC companies artised at this consensus after careful study of various options and an esamination of the licensees experience in random screening.

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A*ITACliMENT (2) i BALTIMORE GAS A ELECTRIC COMPANY'S i

SPECIFIC COMMENTS ON TIIE PROPOSED ITINESS-FOR-DUTY RULE  ;

P We concur with NIJMARC's analysis that this provision, as written,  !

, unduly emphasizes detection, and improperly deemphasizes deterrence  !

which should be the primary focus of any rand)ta screening program.  !

] The industry experience strongly suggests that sample stres exceeding  ;

100% d:, not increase the fundamental de:errent impact.  !

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9. The Employee Assistance Prog am (EAP) maintained by the licensee i pursuant to Paragraph 26.25 shculd be required to be made available  ;

a only to the permanert ear.ploytes of that licensee. The licensee should i no.1 be compelled to "open u p' its EAP program for ths use of non-licensee personnel and the Rule should clearly so state.  !

10. NUMARC discusses Paragraph 26.27 in great detail and we support tt. fir  ;

i comments. Ilowever, we would emphe. sire especially their Cominent i j Number 29 dealing with Paragraph 26.27(b). They prepose the addition  !

of the phrase "up to and including .1ischarge' to clarify the extent to 1 which the licensee is free to take 'more stringent action

• than is '

otherwise specified in the Rule, i

We concur unreservedly. The Rule, and especially Paragraph 26.27, 4

l proparty stress the option of rehabilitation when an employee is found ,

j to have abused drugs at work, or reported to work under their  :

!nfluence, liowever, while rehabilitation may be proper under some ci rumstances, it is also possible to visuaiire situations in which

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disciplinary action, including discharge, miy bo clearly indicated, i 1

j This is especially the case because every situation is different. In  !

some instances, an employer may be evaluring an employee with an >

] umblemished record of good performance who has clearly turned to drug l l abuse in a moment of stress, such as family or monetary problems. The ,

3 licensee may reasonably judge that such an individual possesses the  ;

! underlying strength of character to stop abusing drugs and that the t licensee has made a sufficient investment in the individual to warrant I tha rehabilitation effort. [

Another employee discovered to be abusing drugs may, upon inspection, be found to have a marginal performanco secord including an erratic j behavior pattern suggesting that this may not be the first occasion of drug invo'vement. Prior patterns of absence and lateness frequencies may now come more clearly into focus, as the real nature of a lo3gstanding employee problem is revealed.  ;

i The licensee should not feel constrained to treat the two employees  !

the same, because their situations are not the same. Efforts at i rehabilitation may be more tppropriate in the first situatica, while i disciplinary action is indicated in the second. Each licensee should be free to judge where to draw the line.

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KIT 6ClIMENT (2)

DALTIMORE GAS A ELECTRIC COMPANY'S SPECIFIC COMMENE ON TIIE PROPOSED FITNESS-FOR-DUTY RULE The reference to 'more stringent action

• could, at present, be con-strued to mean simply "more than 14 days of rehabilitation and evalu-ation" or "more than three years without unescorted access." In the absence of the modifying phrase "up to and including discharge,' the option of disciplinary action is not brought into the picture of this critical paragraph.

We should clarify that we are tuu proposing that the Commission go on record as favoring any particular form of disciplinary action. We '

understand that it is our responsibility to mete out discipline to our employees. Rather, we ask the Commission to clarify that licensees are free to take into account the entire emplovment history, perfor-mance r* cord, absence /lates.i ss pattern, and any other job-related factors in the record of an employee discovered to have abused drugt on-site. The employee's overall record, good, bad, or mixed should lead the licensee to a decision w hether rehabiiitation, discipline, or some combination is appropriate.

To forestall the prospect of endless litigation as to w ether the Commission intended to mako available to licensees the full panoply of disciplinary option *, along with the rehabilitative alternatives, we urge the Commission te clarify in the Final Rule that this t its intention.

11. We agree strongly with the proposition, advanced by NUMARC, that Paragraph 26.28 should not require that a licensee' appeal process be made available to persons ether than that licensee's own employees.

As a practical mr.2ter, appeal / grievance procedures are frequently raatters oi judging credibility, in such cases, knowledge of intricate procedural niceties and co m p'ex policy or contract interpretation are '

often no more decisise than are understanding of the people on the opposing sides.

In view of this, it seems clear to us that, to be effective, an appeal process must be controlled b) parties who know the complexities of the employer's policies, who understand the procedural nuances, and most importantly, w ho know the peopis involvea If contractor personnel were allowed to sceess the license 2 appeal process, none of these preconditions to effectise conflict roolution n ould be present.

12. The Daltimore Gas & Eiectric Company's final specific comment on the proposed Fitness-for-Duty Rule assin emphasizes this Company's unigt:e perspectis e. We must take issue with an unavoidable inference which we belies e was inadvertently included in Partsraph 26.28. There, the final sentence states that grievance procedures contained in collective bargaining agreements "will normally" provide sufficient notice, opportunity for a hearing, and other indicia of due process.

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ATTACliMEPff (2)

BALTIMORE GAS & ELECTRIC COMPANY'S SPECIFIC COMMEff13 ON ~171E PROPOSED FITNESS-FOR-DUTY RULE l

I l As a non union employer, this Company's grievance procedure is, of i course, tot ' contained in collective bargaining agreements." None-

theless, both our Managament and our employces have, during the nearly i 20 ye.ars of its existence, found that the grievance procedure works

! well, gives all parties an opportunity to be heard, and produces fair j and consiste'et determinations.

5 We, therefore, propose that a sentence be added at the end of j Paragraph 26.28 to reflect that -

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'This may also include an internal grievance or appeal j procedure for licensee personnel not covered by collective j bargaining agreements.'

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l l One furcher comment is in order regarding the applicability of he Backfit Rule to the l prov,;ed Fitness for-Duty sule. We endorse NUBARG's comments contained in their letter i of November 21, 1988. Specifically, we believe that the Commission should justify the i

proposed R ale in acco dance with the requirements of 10 CFR 50,109(aX3). We, therefore, believe tn at the 'adeavate protection

• exception to the Backfit Rule should l n21 be boked.

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