ML20246A184
| ML20246A184 | |
| Person / Time | |
|---|---|
| Site: | 05508347 |
| Issue date: | 05/24/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#389-8875 88-577-02, 88-577-2, EA-88-164, NUDOCS 8907060179 | |
| Download: ML20246A184 (150) | |
Text
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. R, a UNITED STATES NUCLEAR REGULATORY COMMISSION
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In the Matter of:
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MAURICE P.
ACOSTA, JR.
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Docket No.
55-08347
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ASLBP No.
88-577-02EA Operator License No. 6010-2
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EA 88-164
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Pages:
1 through 148
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Place:
San Diego, CA Date:
May 24, 1989
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t HERITAGE REPORTING CORPORATION OBkhtRw 1228 L Street, N.W., Suite 6et
.@907060179 890524 WasMegton, D.C. 20005
. ECY LIC55 0550ss47 (202) 6M
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L 1 't bl H g-1 UNITED STATES NUCLEAR REGULATORY COMMISSION l
- 2 ATOMIC SAFETY'AND LICENSING BOARD PANEL 3
4-In the Matter of:
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Docket 1No. 55-08347;
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ASLBP No.
88-577-02EA~
5 MAURICE P. ACOSTA, JR.
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OPERATOR LICENSE NO. 6010-2
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6.
'EA 88-164
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7 Wednesday, 8
May 24, 1989 9
California Western School 10 of Law Moot Courtroom-11 350 Cedar Street San Diego, California 12 13 The above-entitled matter came on for hearing,
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14 pursuant to notice, at.1:42 p.m.
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15 BEFORE:
JUDGE B.
PAUL COTTER, CHAIRMAN Atomic Safety and Licensing-Board Panel 16 U.S. Nuclear Regulatory' Commission Washington, D.C.
20555 17 JUDGE HARRY FOREMAN 18 Atomic Safety and Licensing Board-Panel U.S. Nuclear Regulatory Commission' 19 Washington, D.C.
20555 i
20 JUDGE JERRY R.
KLINE Atomic Safety and Licensing Board Panel
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21 U.S. Nuclear Regulatory' Commission Washington, D.C.
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APPEARANCES:
2 On behalf of the NRC Staff:
3 JANICE E.
MOORE, ESQ.
l BERNARD SORDENICK, ESQ.
d Office of the General Counsel U.S. Nuclear Regulatory Commission-l 5
Washington, D.C.
20555 6
On behalf of the Appellant:
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ROBERT BRENT ROTHMAN, ESQ.
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Chamber Building 8
110 West C Street, Suite 2000 San Diego, California 92101 9
Also Present:
10 MARK EMIL MIKULKA, ESQ.
11 Mt. Washington Office 4118 Monterey Street 12 Mt. Washington, California 90065 13 14 15 16 17 18 19 20 21 1
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I NDEX 2
WITtJESSES DIRECT CROSS REDIRECT RECROSS
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3 Albert Talley 14 64 104 105 l
4 Louis Jambor 107 114 130 138 5
6 EXHIBITS IDENTIFIED RECEIVED 7
NRC Staff:
8 1
Order suspending license 8
8 9
2 Report-SmithKline 9
13 10 3
Lab report 9
13 11 4
Report-SmithKline 10 13 p
12 5
Site directive, Rev. 0 11 13 13 6
Site directive, Rev. 1 12
-13 14 7
Analysis of tests 136 15 16 OPENING STATEMENT PAGE 17 On behalf of the NRC Staff By Ms. Moore 5
18 On behalf of the Appellant 19 By Mr. Rothman 5
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SAN DIEGO, CALIFORNIA WEDNESDAY. MAY 24, 1989 1:42 P.M. {
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--ooo--
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JUDGE COTTER:
This is an appeal by Maurice P.
4 Acosta, Jr.,
from an order issued June 15, 1988, by the 5
Executive Director of Operations for the Nuclear Regulatory 6
Commission.
In that order, the Executive Director found 7
that Mr. Acosta had failed a urinalysis screening test, 6
testing positive for marijuana on March 6, 1986, May 12, I
9 1986, and May 28, 1988.
10 Mr. Acosta had originally been licensed as a 11 reactor operator in 1982.
That license was last renewed 12 July 1, 1986.
As a result of his findings, the Executive 13 Director refused to renew the license, which would tave been i1 14 renewable on July 1, 1988, and suspended Mr. Acosta's l
l 15 license for the balance of the term between June 15, 1988 16 and July 1.
17 My name is B.
Paul Cotter, Jr.
I am Chairman of 18 the Atomic Safety and Licensing Board, assigned to hear this 19 proceeding.
My principal training is in the law.
To my 20 right, is Judge Harry Foreman, who is -- whose principal 21 training is as a medical doctor.
And to my left, is Judge 22 Jerry Kline, whose principal training is as a health 23 physicist.
24 With that introduction, would counsel enter their 25 appearance for the record, please?
Mr. Rothman?
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1 MR. ROTHMAN:
Robert Rothman here., representing
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Phil Acosta, who is the Appellant.
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JUDGE COTTER:
Thank you.
Ms. Moore?
4 MS. MOORE:
Your Honor, my name is Janice Moore, 5
counsel for NRC staff.
Also with me, us counsel for NRC 6
staff today, is Mr. Bernard Bordenick.
1 7
JUDGE COTTER:
All right.
Are there any 8
preliminary matters to take up before we begin?
9 Do you wish to make an opening statement, 10 Ms. Moore?
11 MS. MOORE:
I wish to make a very brief opening
'12 statement, your Honor.
13 JUDGE COTTER:
Why don't you proceed, then, rN
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14 OPENING STATEMENT ON BEHALF OF NUCLEAR REGULATORY COMMISSION 15 MS. MOORE:
On June 15th, 1988, the staff issued 16 the order, which is the subject of this proceeding.
- Today, 17 the staff will demonstrate that this order was issued with 18 justification, that it is reasonable, and was not arbitrary 19 and capricious, given the circumstances of this case.
20 That's all I have, your Honor.
1 21 JUDGE COTTER:
Mr. Rothman, do you wish to make an 22 opening statement?
23 MR. ROTHMAN:
Yes, Judge, very briefly.
24 OPENING STATEMENT ON BEHALF OF APPELLANT 25 MR. ROTHMAN:
The factual circumstances of A
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1 Mr. Acosta's suspension and denial of renewal of his
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2 operator's license are as were set out in the order that you 3
just read for the record during your opening.
Mr. Acosta 4
would like to call to this body's attention the fact that 5
the first and third of the urinalysis / drug screening l
6 examinations that he took were positive, because he was 7
exposed, immediately before those tests, to un environment 8
containing smoke from what he believed at the time to be 1
9 marijuana cigarettes.
He did not actively ingest those 10 substances, but ingested them passively from the 11 environment, as it were.
12 Therefore, the results of the drug-screening j
13 examinations have no relationship to Mr. Acosta's fitness or i
6 14 competence to perform his duty or his level of competence o{
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15 impairment while on the job, nor do they reflect upon his
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16 trustworthiness, or upon his judgment in any way.
I think 17 that the levels that were detected in Mr. Acosta's blood 18 and/or urine, on those two occasions, would substantiate j
10 those contentions.
Furthermore, in consideration of the 20 fact that in between 1986 and 1988, both before and after 21 the positive test results, Mr. Acosta took a total of ten 22 other random drug-screening tests, all of which turned out 23 negative.
24 There is no question, and no allegations have been 25 raised as to Mr. Acosta's competence.
He is -- his l
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1 competence has been attested to by his co-workers on
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2 numerous occasions, and by his supervisors during.the entire 3
course of his employment, in performance evaluations, and in 4
other-ways.
5 Furthermore, to make a purely legal argument, I 6
believe that the random drug screening that Mr. Acosta was 7
subje.cted'to, and others are subjected to, in circumstances 8
similar to him, are violative of his rights against 9
unreasonable search and seizure, under the Fourth Amendment
.10 of the Constitution,.and violative of his rights to privacy, 11 under Article'l of the California Constitution.
12 JUDGE COTTER:
Anything further, Mr. Rothman?
13 MR. ROTHMAN:
No.
(/)
14 JUDGE COTTER:
All right.
Thank you.
~-
. the Staff has the burden of 15 In this instance, 16 proof, so would you proceed, please, Ms. Moore.
17 MS. MOORE:
Yes, Mr. Chairman.
Before we proceed 18 with our first witness, counsel for Mr. Acosta, and counsel 19 for.the staff have been able to read certain stipulations 20 about the admission of documents into evidence.
I would 21 like to, at this time, identify those documents, and have 22 them admitted into evidence as a preliminary matter to my 23 commencing my examination.
24 JUDGE COTTER:
Proceed.
25 MS. MOORE:
The first document, which we have i
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agreed will be admissible, is a Staff -- admitted into j
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2 evidence as a Staff exhibit would be the order of June 15, 3
1988, which was published in the. Federal Register on 4
June 28, 7.988.
The title of the document is Order 5
Suspending License Effective Immediately, and Denial of 6
Application for Renewal of License, and name on the order is 7
Maurice P.
Acosta, Jr.
I would like to offer this into 8
evidence at this time as NRC Staff Exhibit 1.
9 (The document referred to was 10 marked for identification as 11 NRC Staff Exhibit No. 1.)
12 JUDGE COTTER:
I taka it there is no objection, 13 Mr. Rothman?
?.'
14 MR. ROTHMAN:
No objection.
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15 JUDGE COTTER:
It will be received.
16 (The document referred to, having 17 been marked as NRC Staff Exhibit 18 No.
1, was received in evidence.)
19 MS. MOORE:
We have copies to provide to the court 20 reporter.
I believe the Board has copies; however, we have 21 copies if the Board wishes.
22 The second document -- since we are going to offer 23 all these documents, and they will all be admitted at the 24 same time, we'll present all the copies to the court 25 reporter at the same time.
They are already marked.
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- 1 JUDGE COTTER:
Why don't you just list all the
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documents, and then move them all, instead of doing it one
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3 at a time?
d MS. MOORE:
Okay.
I'll be happy to.
5 The second document is a report from the 6
SmithKline Bioscience Laboratories.
The reported date is 3-7 26-86.
The collection date of the sample, which is the 8
subject'of this report, is 3-6-86.
The document is'a report 9
of drug test results That would be -- that has been marked 10 for identification at NRC Staff Exhibit 2.
11 (The document referred to was 12 marked for identification as 13 NRC Staff Exhibit No. 27
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14 MS. MOORE:
The next document is a report from 15 Central Diagnostic Laboratories, dated 5-14-86, and it.is 16 the results of a urinalysis of a sample collected on 5-12, j
1 17 1986.
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18 (The document referred to was 19 marked for identification as l
20 NRC Staff Exhibit No. 3.)
I 21 MS. MOORE:
The fourth document consists of three 22 separate laboratory reports, of a drug test in which the 23 sample was collected on 5-28-88.
The report was issued on 6 24 6-8, 1988, and this would be NRC Staff Exhibit 4.
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(The document referred to was q
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marked for identification as 3
NRC Staff Exhibit No. 4.)
4 JUDGE COTTER:
Who was the report issued by?
5 MS. MOORE:
The report was issued by SmithKline 6
Bioscience Laboratories.
7 JUDGE COTTER:
Thank you.
8 MS. MOORE:
May I hr.ve a moment, your Honor.
9 JUDGE COTTER:
Certainly.
10 (pause.)
11 MS. MOORE:
Your Honor, the next document is a 12 site --
13 JUDGE COTTER:
Let me back up a moment.
Would you 14 indicate, in connection with all four exhibits you have
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15 described so far, how many pages they are?
I 16 MS. MOORE:
Certainly, the first -- the order, 17 which is Exhibit 1, is composed of two pages.
Exhibit 2, i
18 which is the 1986 SmithKline Laboratory report is also 19 composed of two pages.
The 1986 Central Diagnostic 20 Laboratory Report is composed of two pages.
The 1988 21 SmithKline report, which are three separate reports, is 22 composed of three pages.
23 The next document --
24 JUDGE COTTER:
Does that mean that each of those 25 reports is one page?
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1 MS. MOORE:
Ies, that's correct..
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JUDGE COTTER:
Thank you.
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3 MS. MOORE
-The'next document, which.has been
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. marked at NRC Staff. Exhibit 5, is a document consisting of l
5 five pages -- pardon'me, it's consisting of four pages.
6 A'nd I would -- Mr. Bordenick, at this time, will read the
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7-title of the document into the record.
8 MR. BORDENICK:
This document, headed Southern 9
. California Edison Company Nuclear Generation Site 1
1 10 Department,' effective date 9-1-84, and in the upper 11 right-hand corner, it bears the notation -- it has initials 12 NG, as in' George, S,
- dash, D,
as in David, dash 006,' site 13 directive,.Rev.
O, and then, on the first page, it has page; 14 1 of 4, and the subsequent pages have subsequent page so.and 15 so of 4.
16 (The document referred to was 17 marked for identification as 18 NRC Staff Exhibit No. 5.)
19 JUDGE COTTER:
I take it, that's " site", spelled 20 with an "S"?
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21 MS. MOORE:
Yes.
22 MR. BORDENICK:
Yes, correct.
Sorry.
23 JUDGE COTTER:
And it's four pages.
24 MS. MOORE:
The final document, which has been 25 marked for identification as NRC Staff Exhibit 6, is a
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document consisting of five pages, and once again, l
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2 Mr. Bordenic', will read the title of the docur.ent into the 3
record.
4 MR. BORDENICK:
This document, which is Staff 5
Exhibit 6, like Staff Exhibit 5, is headed Alcohol and Drug 6
Use, and the designations are similar.
It's Southern 7
California Edison Company Nuclear Generation Site 8
Department, effective date 11-14-86.
The same initials, 9
NGS-D006, site directive, Rev.
1.
The first page is 1 of 5.
10 The subsequent pages are 2 of 5, and so forth, through 5 11 of 5.
12 (The document referred to was 13 marked for identification as
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14 NRC Staff Exhibit No. 6.)
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15 JUDGE COTTER:
The Rev., I take it, is R-E-V.,
an 16 abbreviation for revision.
17 MR. BORDENICK:
That's correct.
18 MS. MOORE:
Your Honor, the Staff now moves that 19
-- moves that exhibits -- NRC Staff Exhibits 2 through 6 be 20 admitted into evidence.
21 JUDGE COTTER:
Based on the representation of the
'22 stipulation, without objection, they will be received in 23 evidence.
j 24
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(The documents referred to, having been previously marked 3
as NRC Staff Exhibits 2 through 4
6, were received in evidence.)
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MS.' MOORE:
Thank you.
6 MR. BORDENICK:
Does the Board have copies of all
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7 these documents, or just the first -- the first exhibit?
8 JUDGE COTTER:
I believe we only have copies of 9
the first one.
10 MR. BORDENICK:
Well, we'll get you copies oflthe 11 additional exhibits, and also get copies to the court 12 reporter in a few moments.
13 MS. MOORE:
The Staff calls as its first witness
['
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'Mr. Albert Eugene Talley, D
15 MR. MIKULKA:
Good morning.
If it pleases the 16 Board; I am here, appearing on behalf of Mr. Talley -- or 17 along with Mr. Talley as his attorney.
My name is Mark 18 Mikulka.
I'll give the reporter a business card.
19 JUDGE COTTER:
Spell it for the record, if you 20 would.
21 MR. MIKULKA:
Certainly.
It's spelled 22 M-I-K-U-L-K-A, the first name Mark.
23 (pause.)
24 JUDGE COTTER:
Tell me your name again, sir.
25 MR. TALLEY:
My name is Gene Talley, and the full l
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I name is Albert Eugene Talley.
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Whereupon, 3
ALBERT EUGENE TALLEY 4
having first been duly sworn, was called as a witness herein 5
and was examined and testified as follows:
6 JUDGE COTTER:
Please be seated.
7 DIRECT EXAMINATION 8
BY MS. MOORE:
9 Q
Mr. Talley would you please state your full name 10 and business address for the record.
11 A
My full name is Albert Eugene Talley.
Our 12 business address is Post Office Box 128, San Clemente, 13 California, and I think that's enough of the address.
5, 14 Q
Mr. Talley, are you appearing voluntarily as a j
j 15 witness in this proceeding?
16 A
No, I am not.
17 Q
Isn't it correct that you are appearing in 18 response to a subpoena issued by the Atomic Safety and 19 Licensing Board, at the request of the NRC Staff?
20 A
Yes, that's correct.
j 21 Q
Would you please summarize your educational and 22 professional background?
23 A
I hold a certificate in industrial quality 24 control, a bachelor of science degree from California State 25 University of Los Angeles, in management science.
I have --
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I.am a registered,1 professional engineer in the state of 1
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2-California,'and I hold a master's degree from the University 3
of.Redlands in management.
4 Q
What is your current position with Southern 5
California. Edison Company?
1 6
A_
My current position title is Department' Assistant,=
7 and that describes a staff position designated for a 8
. specific purpose within the department, and that purpose, 9
for the last3 four years or so, has been the Substance Abuse 10 Program.
11 Q
What has been your involvement'with the Substance-12 Abuse Program?
13 A
My first involvement with the Substance Abuse
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Program was in'its origination at San Onofre Nuclear Power
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15 Generating Station, SONGS, in 1984, and my involvement, 16 since that time, has been to manage the program, develop 17-procedures, and to monitor their implementation at 18 San Onofre.
19 Q
When you use the term " Substance Abuse Program",
20 Mr. Talley, is that term synonymous with a fitness -- the o
21 term " Fitness for Duty Program"?
22 A
The two terms are very similar in the -- the terms
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23 used in the industry, yes.
24 Q
What was your previous position with Southern 25 California Edison Company?
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Before the Department Assistant position, my title {
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was Manager of Material and Administrative Services.
1 Q
And how long did you hold that position?
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A For four years.
5 Q
In that position, were you involved with Southern 6
California Edison Substance Abuse Program?
7 A
Yes.
It was during that period of time that the 8
San Onofre Substance Abuse Program came into existence.
9 Q
Does Southern California Edison have a policy at 10 San Onofre concerning off-duty use of controlled substances?
11 A
Yes, it does.
12 Q
What is that policy, please?
13 A
That policy, as reflected in the policy document, i\\
14 the Site Directive, is that those who are granted unescortedj
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15 access to the protected area at San Onofre should be free 16 from drug involvement, possession use or sale, both on and 17 off duty.
18 Q
And when was that policy developed?
19 A
It was published in September of 1984, and its I
20 development preceded that by two or three months.
21 Q
What was your role in the development of that 22 policy?
23 A
My role in the development of that policy was, as 24 a staff position to the vice president in dealing with not 25 only what was happening in the industry, a review of the l
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-regulatory requirements as they existed at the time,--and:in l'
-consulting.with corporate entities, such as the Law 1
Department, Labor Relations Department,: Medical' Department, 4
and:the' security: organization, in developing.their 5
understanding offthe requirements, anc consolidating there 6
'into a policy'.
7
-Q' What is the purposely -- pardon me.
What is the-l 8
purpose.of the policy developed for San-Onofre, concerning 9
.off-duty and on-duty use of -- involvement-with controlled
- l 10 substances?
11-A' The Southern California Edison Company has many.
12 requirements which apply to San Onofre, the nuclear power 13 generating station, which are, in many respects, more 14 stringent than applied elsewhere in the company, and the
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15 primary reason for that is the -- the primary. reason for 16 this policy, which is nuclear safety.
It was' progressively-17 understood, in the nuclear power industry, that the use of 1
- 18 illegal substances, psycho-active substances, were a 19 potential threat to nuclear. safety.
And it was -- it became-20 a part of many aspects of access, screening, and also, rules t
21 that were developed at the time, in order to insure that 22 those that were granted unescorted access to the protected 23 area, and many of the jobs which directly deal on a hands-on 24 basis with the nuclear power. plant, that these people were 25 free from the effects of psycho-active substances.
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The -- the obvious purpose for that is to prevent {
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nuclear accidents from happening, and heaven forbid that one 3
should happen, to mitigate the consequences of those 4
accidents, utilizing workers that are unimpaired.
So, 5
nuclear safety, of course, was primary in the company's 6
interest in establishing this -- this policy.
7 In 1962 and
'83, there were many news articles 8
that began to appear about allegations of possible drug use 9
at San Onofre, and the company felt an intense desire to 10 demonstrate to the public that it was acting in a prudent 11 and responsible way in dealing with the possible threat of 12 drug use at a nuclear power plant.
So, the interest in 13 properly discharging this public trust in operating such a il 14 plant, and to reassure the public that it had well-placed
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15 confidence in the company in properly managing that plant 16 was a second very strong motivation in establishing the 17 program.
i 18 And lastly, I would have to say that, as part of 19 the integrated, multi-faceted rationale for the program that 20 I'm going through here, they -- another major motivating 21 force behind this establishment of the program in
'84, was 22 connected with our access control requirements at the 23 nuclear power plant.
24 The process of screening nuclear workers has 25 several facets; all of which are for the purpose of trying l
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1 to establish:the character of trustworthiness and s[k 2
rel'iability of:the workers, such as.-- for example,nwe 3
perform a-background investigation, which now includes 4.
fingerprinting.and. record checks for all~ applicants for 5
unescorted' access.
We'do a. psychological evaluation.on 6
these applicants, using the MMPI, the Minnesota Multi-Phasic 7
' Personality Inventory, and followed up by a. clinical' 8
interview withSa psychologist, again, for the same purpose,-
9 to establish this credibility in the individual'who has 10 applied for unescorted access.
11 And a component, which we decided to add to'that 12 in
'84, was the drug test,'not to detect whether they:were 13 impaired at the moment, but to establish their reputation ~of 14
.being. free from involvement with illegal drugs.
15 Q
Does marijuana fall within the scope of this 16 policy?
17.
A Yes, it does.
18 JUDGE COTTER:
I'm sorry, I didn't hear the 19 question.
'20 MS. MOORE:
Joes marijuana fall within the scope 1
21 of this policy, was my question.
22 BY MS. MOORE:
23 Q
How is this policy communicated to the employees j
l 24 at San Onofre?
j 25 A
The communication of the policy began long before l
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-- at least 30 days before it was implemented in
'84, with
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prior notice to all persons that worked at San Onofre, 3
through fliers, meetings, ana requesting a signed 4
acknowledgement of the directive before it became' effective.
5 After that date, we, again, had meetings.
We 6
circulated fliers to persons entering both the site and the
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7 protected area, and we required that, as a part of the 8
process for obtaining a badge permitting unescorted. access 9
to the protected area, that these individuals be trained in to the substance abuse rules, and give us a signed 11 acknowledgement of having received those rules.
12 And then, annually, thereafter, they are -- they 13 received some refresher training, and a small test to test k
14 their knowledge of it, at the time of annual renewal.
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j 15 Q
Mr. Talley, I would like to show you a document, 10 which has been admitted into evidence as NRC Staff 17 Exhibit 5.
18 MR. MIKULKA:
May I have a moment to look at it, 19 Counsel?
20 MS. MOORE:
Certainly.
21 (Counsel proffered document.)
22 (pause.)
23 MS. MOORE:
Are you finished?
24 MR. MIKULKA:
I'm sorry, Counsel.
I'm through 25 looking.
I've now given it over to Mr. Talley.
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21
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1 (Witness proffered document.)
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2 MS. MOORE:
Okay.
3 BY MS. MOORE:
4 Q
Mr. Talley, have you examined the document?
5 A
.Yes, I have.
6 Q-Is this a site directive document, which was 7
issued in 1984 to' employees and to'all personnel setting 8
.forth the company's policy?
9 A.
Yes, it is.
10 Q
Could you explain to us what a site directive is?
l 11 JUDGE COTTER:
I'm sorry, repeat the question.
12 BY MS. MOORE:
13 Q
Could you explain to us what the term " site
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. directive" means?
What is a site-directive?
15 A
A site directive at San Onofre refers to a high k
16 level policy document, such as NGSD006, that I'm looking at q
17 here, which is signed by the vice president and site 18 manager, an officer of the company who is located on site at i
19 San Onofre, and is distributed to those that it applies to.
20 In this case, this directive applies to all i
21 employees, as well as all contractors at San Onofre.
And 22 so, all personnel who enter the site are given a copy of 23 this directive.
So, it's from lead person at San Onofre, 24 the site manager, and it is received by all personnel at l
25 San Onofre.
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Q Would Mr. Acosta have received a copy of this sitej
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directive, to your knowledge?
3 A
Yes.
4 Q
Would you explain what you mean when you say the 5
" protected area" of the San Onofre facility?
6 A
The term " protected area", as is used commonly in 7
all nuclear power plants, refers to an area that provides a 8
positive guarded boundary, beyond which control -- at least 9
unescorted access and all forms of material moving and out, 10 are positively controlled.
The area surrounds the units 11 themselves, and contains not only the complete nuclear i
12 inventory at the nuclear power plant, but many other 13 power-generating facilities.
14 Q
And you just used the term " unescorted access".
{
}
15 Could you explain what that means, please?
16 A
Those who enter the protected area do so at
]
17 San Onofre with a key card.
That key card is referred to in 18 our terminology as a red badge, and these cards activate
)
19 gates, not only into the protected area itself', but into I
20 various security areas within the protected area.
The 21 ability to proceed into the protected area, alone, without 22 an escort, is the term that I referred to, " unescorted 23 access", and it requires a special level of screening, 24 testing and clearance.
25 Q
And one part of that screening process, if I l
l
u.
(.'
=
23
[ )
1 understand your-testimony correctly, is the. San Onofre
?Q 2
. Substance Abuse Program.
There are portions of that program 3
which apply to the screening of applicants for protected 4
. access.
Is.that -- was my' understanding of your testimony 5
correct?
6 A
Yes, that'is correct.
7 Q
Could you tell us, what are the elements of the 8
San Onofre Substance Abuse Program?
9 A
Yes.
The San Onofre Substance Abuse Program
'10 includes elements which have been largely standardized now 11 at most nuclear power plants in the country, and ours, in 12 many cases, pre-dated published guidance on that.
So that, 13 in September of 1984, the elements of the program which'were 14 established are very similar to the elements that exist 15 today, which is that we have published written descriptions 16 of our program which include the policy with regard to on 17 and'off duty use cf illegal substances,'and what actions 18 will be taken with individuals relative to monitoring their 19 resumed drug use upon return.
Such issues are described 20 fully, in not only the directive, but in implementing
~
21 procedures.
l 40 These procedures are communicated to workers at 1
23 San Onofre by a variety of prescribed methodologies.
There 24 are signs posted at various point, indicating what our 25 policy is with regard to drugs and alcohol, possession on
e 24 1
site and rules against doing so.
There are a variety of
{
j 2
communication and training means, such as formal classroom 3
training, as well as programmed instruction, in concert with 4
other testing that goes on during the badging and annual 5
re-badging for unescorted access.
6 The supervision receives special training, as part 7
of this program, in behavioral recognition for persons who 8
are at work under the influence of some substances, or --
9 you know, or otherwise behaving in an aberrant manner.
10 Supervisors are also given training on how to recognize I
11 means by which drugs may be smuggled onto the site and 12 disguised in a variety of ways.
The escorts also receive 13 similar training so that they can recognize this, and know 14 what actions to take to report it to the proper authorities l l
15 at the company.
16 There is a behavioral observation program which is 17 connected with the program, which involves the monitoring of 18 the behavior of those who are in the protected area to alert j
19 us to cases of -- extreme cases of impairment, those that 20 might be recognizable as a result of that training.
j 21 We have an Employee Assistance Program, which is I
22 also part of our overall substance abuse program at 23 San Onofre.
And it is a confidential, voluntary assistance 24 to troubled employees, and, in addition to that, the 25 psychological services portion of our company has contracts I
I
25
[\\
1 for mandatory rehabilitation to a variety of outside
' \\m /
J.
services that provide that function.
And the referral to 3
both confidential EAP, and to mandatory rehabilitation are a
'4 L
part of this program.
5 In addition, in the August, 1985 standard that was 6
published for the industry, chemical testing of body fluids 7
was recommended, and as I mentioned, we preceded that in 8
doing chemical testing, as a part of this program, as early 9
as' September, 1984.
The situations under which the program 10 does testing are several,'and again, these are largely 11 standardized throughout the country.
One is a 12 pre-employment drug test, and this is a. urinalysis that is 13 given to applicants for employment with the Southern.
I h
14
-California Edison Company, and that practice'is utilized 15 throughout the company.
16 Another form of chemical testing is a blood test, 17 which we administer to persons who are removed from the job 18 due to being unfit for duty.
So, when someone is observed 19 to be impaired on the job, with a system of protocol which 20 requires things like corroboration by another management 21 person, these individuals are taken over to the medical 22 facility, which, in our case, we are fortunate.
We have a 23 health care clinic on site, at San Onofre.
And blood is 24 drawn, and so the chemical analysis in the impairment 25 situation is a blood test.
_______._m____
L l
26 l
i I
We have a variety of tests connected with the q
2
-- with unescorted access to the protected area.
For 3
e xarnpl e, upon initial badging, or pre-assignment, persons 4
are administered a drug-screening urinalysis to establish 5
their freedom from involvement with illegal drugs, to the 6
degree that that's ascertainable in a urinalysis.
And 7
having passed that, and given unescorted access to the 8
protected area, in 1984, we required annual retesting of all O
such persons.
So, at the rate of about 25 testa por day, wo 10 would eventually test the entire red-badge population every 11 year.
Again, that's a part of our Substance Abuse Program.
12 There are other tests, such as investigatory drug 13 tests, administered when management has reason to bblieve i
i
(
14 that someone with unescorted access to the protected area q
g 15 has been involved in illegal substances on or off site.
The 10 investigation frequently entails request.ing the individual 17 to submit to an investigatory drug test.
This, too, is a 18 drug-screening urinalysis.
19 And finally, there is another form of testing 20 which is administered only to those persons who have had a I
21 history of substance abuse, and who have been granted
~
J 22 unescorted access.
We call that testing program the 23 periodic Drug Monitoring Program.
The NRC has referred to 24 is as follow-up testing, so that persons who have been 25 through rehabilitation, and are determined to be badgable t
.27 1
once again, and are returned to their previous duties, do so 2
as part of the Periodic Drug Monitoring Program.
These 3
tests are unannounced tests.
They are not random, 4
' incidently, but they are unannounced, given at a fairly high 5
frequency in some cases, depending, somewhat, on the nature 6
of the situation and the drug.
And these tests are 7
administered, as I say, on an unannounced basis, so that 8
.everyone who has been reinstated is part of this program.
9 And these. tests, too, are part of our Substance Abuse 10 Program.
11 Q
Mr. Talley, are the annual badge renewal drug 12 tests also unannounced?
13 A
The periodic testing that was done for annual 14 renewal of the red badge, in the beginning, in 1984, up 15 until the time we administered -- or we switched to rand,om 16 drug testing, was announced.
So that a person could easily 17 predict, a year in advance, on the anniversary date_of the 18 renewal of the badge, when that test was to be taken.
19 Q
When did you switch to random drug testing?
l 20 A
At the end of nineteen --
21 MR, M1KULKA:
Let me make an objection, just for 22 clarification, because there was a court -- it's been 23 implemented, and there was a court injunction, and the 24 injunction was lifted.
So, in that sense, it's been done 25 twice.
And just for purposes of clarification for this t
N~-
t L_______________
i
I 28 f
1 witness, perhaps you could ask, I guess, the first time or l
}
2 second time for random testing.
3 BY MS. MOORE:
4 Q
In your answer, you referred to -- before random 5
drug testing was instituted, in your -- your previous 6
answer --
i 7
A Yes.
8 Q
-- you said the tests -- the tests, prior to that, 9
were unannounced.
What date were you thinking of in your 10 answer -- in that answer to this question?
11 A
At the end of 1986, the company had decided, for a 12 variety of reasons, that the predictability of the tests did
+,
not adequately deter drug use, and the decision was made to j
13 14 institute random, unannounced testing, and so that was done {
}
15 in December of 1986.
That experience lasted for about a 16 week, and, at that time, we were enjoined from continuing I
17 the practice.
So, we reverted to annual 100 percent testing 18 of everybody on a predictable announced basis, until 19 November of 1988, when the -- when the injunction was 20 dissolved, and random has been in effect since that time.
21 Q
As of early 1986 -- say March of 1986, which is l
22 the subject of the first drug test failure by Mr. Acosta, 23-that's the subject of this proceeding, what were the 24 consequences of a failure of such a drug test at San onofre?
25 A
The policy that existed in the time frame to which l
l l
1 1
m
I 29 t
. p-
/
)
1 you refer, March of 1986, involved, if I -- maybe the l \\
/
'~'
simplest way to do it is to walk through the consequences of 3
a first drug test failure, and that, I think, would be the 4
simplest way to explain it.
5 Upon notification by our Medical Department that 6
someone with unescorted access to the protected area had 7
failed a drug-screen urinalysis -- and, of course, this 8
would be after it was confirmed, and after the medical l
9 review officer had had a chance to rule out all explainable l
\\
i 10 legal reasons for the failure.
Once it was declared a 11 failure, and that was communicated to the individual 12 supervisor, unescorted access was withdrawn within about ten 13 minutes. That was the time frame that we used.
That's A
[
T 14 possible because it's done electronically.
The badge was
's
/
15 deactivated within that period of time.
16 The individual was called into the supervisor's 17 office for a counseling session.
During the counseling 18 session, many things were covered.
One of the functions, 19 incidently, of the group that I was involved with at the 20 time, the Substance Abuse Program Administration Group, was
~
21 to provide the supervisor a list of things to be covered in those counseling sessions, and among the many things that 22 23 were to be covered were, for example, a review of the 24 policy, so that the individual had no question as to what 25 policy it was that had been violated by this positive and A
f N
v
k 30 i
1 failed drug test.
But also, a review of the consequences j
j 2
for a -- what would happen if the person failed a second 3
time.
So, the consequences of a future drug test failure 4
were reviewed.
5 They also -- there was a review of what would I
6 happen to the individual in the ensuing days, and what 7
requirements the company might have for once again 4
8 reconsidering the person for unescorted access to the l
9 protected area.
It was, for example, explained to the I
10 individual that their unescorted access would continue to be j
1 11 denied, and the individual would be subject to some tests 12 that would be quantitated.
That is to say, if we saw a 13 level of drugs, we would ascertain what that level cas, and j
I i
14 watch that level decline, over time, until the point was j
} {
l 15 reached where the system was essentially free, or clean, at 16 least at the detectable point of our tests.
17 Once the system was determined to be clean, the I
18 individual would be told that they would be subject to 19 follow-up testing in the Periodic Drug Monitoring Program 20 for an unspecified period of time, at an unspecified 21 frequency and interval.
The -- if all of that proved 22 satisfactory, then, the individual was once again considered 23 for unescorted access to the protected area.
That was the 24
-- essentially, the routine for a first drug test failure.
25 The -- shall I continue with the rest of the l
l 1
1
'u 31-
./
I i
"'N 1
poli'cy?
2 Q
Are there other portions of it that apply to a-1 3
.first' drug test failure?
4' A
No.
Those are the. principal things that relateTto 5
.a first drug test failure, as it exited in March of
'86.
I 6
Q.
In that same time frame, Mr. Talley, what would' 7
have been the-consequencesoof a second' drug' test' failure?!
8 A
Unlike the' consequences of a first drug' test-9 failure, where the individual.was merely reassigned'outside 10 the protected area, and his pay was unaffected -- his or her 11 pay was unaffected for that period of time, with a second 12 drug test failure, there.came a disciplinary suspension of 13 five days without pay.
~
14
'And then, the other aspects of the program, such 3
15 as a warning about what would happen with the next drug test 16 failure, and a reminder that the Employee Assistance Program 17 was, indeed, for troubled employees -- and by the way, the 18 referral to EAP, I neglected to mention, occurs at the first 19 drug test failure.
At the second drug test failure, that 20 encouragement, that referral is stronger.
An appointment is 21
-- is arranged on an informal basis; that is, the employee 22 is given the name, the telephone number of a counselor, an 23 Employee Assistance counselor, and advised, again, that this
)
24 voluntary, confidential program is available for troubled 25 employees.
T
l 32 The -- upon return from the five-day disciplinary {
}
1 2
suspension, there is a post-suspension drug test, which, 3
generally, then, would be negative at that point in time.
4 If it is not, then there would be another test in a few 5
days, until the system recorded a negative result.
The 6
person would be -- unescorted access would be reinstated 7
again, only on the basis of being subject to follow-up drug 8
tests, again, for an indefinite period of time.
9 Q
Same time frame, what if there had been a third i
10 drug test failure?
i 11 A
The -- according to the prcgram that was in effect 12 at the time, the third drug test failure -- the initial 13 parts of the third failure would be similar, which is that i*
14 the badge would be deactivated within ten minutes.
There
{
}
15 would be a supervisory counseling program, except that -- or IG session, except that, during this meeting, the employee 17 would be advised -- I say " employee" -- employee or 18 contractor -- but generally, if they lasted this long, it 19 was an employee.
The employee would be placed on a 30-day 20 disciplinary suspension without pay, and, at that time, 21 required to attend a mandatory drug treatment program at a i
22 facility which had been approved, on a pr'ior basis, by the 1
23 company.
These are facilities that meet the company's 24 standard, with regard to treatment, and also, entail some l
25 testing during the time of interment in the hospital, and a l
I i
1.
.33 sY
/
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1 two-week period of intensive treatment.
N,)
2 Upon return from the mandatory rehabilitation, the i
3 individual would have to bring with the person a signed 4
certification that'the treatment had been entered into and 5
completed satisfactorily.
They would be required to undergo 6
a physical examination by the site physician, and obtain a 7
form that we refer to as the return to work form.
8-There would be a renewal of virtually all of the A
employee' screening activities that took place for original 10 badging, which is -- and I think I mentioned them before, 11 but I'll repeat.
There is a background investigation update 12 to insure that this person, who has had repeated relapses, 13 has not also had a problem with the law.
There would be a
(
14 psychological re-evaluation utilizing the MMPI, that I J
N l
m 15 referred to previously, and a clinical interview.
And there I
16 would be an assessment by a psychologist, with regard to 17 determining the degree of dependency.
18 Once all of those things were satisfied, and if l
19 all of the recommendations from each of the entities who 20 have to participate in this medical evaluation were okay, 21 then, site management is once again given the opportunity to 22 review the case, and to determine whether or not unescorted l
23 access should be reinstated.
24 MR. MIKULKA:
May I have a moment to just consult 25 with my client for ten seconds, if I may indulge the Board?
A V
1 1
l l
34 i
1 JUDGE COTTER:
Proceed.
{
}
f 2
(Pause.)
I 3
MR. MIKULKA:
Thank you.
4 BY MS. MOORE:
5 Q
.;31n, at this time frame, of early 1986, what 6
would have been the consequences of a fourth drug test I
7 failure?
8 A
Employment was terminated on a fourth drug test 9
failure.
10 Q
Mr. Talley, I would like to show you a document, 11 which has been admitted into evidence as NRC Staff 12 Exhibit 6.
This is a site directive, whose effective date 13 is 11-14-86.
6 14 MS. MOORE:
Your Honor, we seem to have misplaced {
}
15 our copy of the document.
We're going to borrow one from 16 the court reporter, if that's all right, to show to the 17 witness.
18 JUDGE COTTER:
All right.
Could you repeat the 19 title on that again?
20 (Witness proffered document.)
j 21 BY MS. MOORE:
22 Q
Mr. Talley --
23 MR. MIKULKA:
Excuse me, Ms. Moore, if I may have 24 an opportunity to look at this, please.
25 MS. MOORE:
Certainly.
j
-35 h'
P' 1
(Pause.)
J, N
2 MR. ROTHMAN:
Your Honor, while we have a brief j
3 pause, this might be a time for me to take care of one'brief-4 housekeeping detail.
j 5
At the beginning, Ms. Moore indicated that we had 6
reached an agreement ~and' stipulation regarding admissibility 7
of evidence and' exhibits.
I'd like to inform you, your
'8 Honor, that we also. reached an agreement and stipulation as 9
to the admissibility of exhibits for Mr. Acosta.
I'd just 10 like-you to know that, because, in part, the stipulation, 11 regarding admissibility of the NRC documents related to the-12 admissibility.of-some of Mr. Acosta's exhibits, which are 13 twelve in number, consisting, primarily, of negative drug 14 test reports and performance evaluations.
15 I asked you, at the beginning, your Honor, if we 16 could not, at the beginning of tomorrow's session, submit 17 Mr. Acosta's exhibits to you.
We will have those copied 18 this evening and submitted in the morning, with the Court's 19 permission.
20 JUDGE COTTER:
Thank you, Mr. Rothman.
I 21 MR. MIKULKA:
I have no problem with it.
l.
22 Mr. Talley now has it, Ms. Moore.
- 1..
23 BY MS. MOORE:
24 Q
Have you completed your review of the document, 25 Mr. Talley?
v
36
[
1 A
Yes.
{
}
2 Q
Would you please identify the document by its 3
title?
4 A
The document that I have been shown is NGSD, as in 5
David, 006, Revision 1, with an effective date of 11-14-86, 6
and the title of the directive is Alcohol and Drug Use.
7 Q
Does this document set forth a change in the 8
substance abuse program?
9 A
Yes, it does.
10 Q
Could you please briefly describe the changes that 11 took place at that time?
12 (Pause.)
13 A
The primary changes, which took place in -November k
d 14 of 1986, were two.
One--andtheonethat'saddressedinj l
15 this directive, primarily, is a change from what I had 16 referred to earlier, as four opportunities to fail a drug 17 test, sometimes called ti.e four-strike rule, which is 18 termination on the fourth drug test failure, to a policy in 19 which termination occurred on the third drug test failure.
20 So, that change involved dropping one of the 21 steps.
The step that was dropped was the five-day 22 disciplinary suspension.
So, the scenario for repeated drug 23 test iailures -- administrative a: tin 2, in the case of drug 24 test failure, as portrayed in Revision 1, involved 25 essentially the same first step, which is reassignment until l
l
f 37:
Ll 2 (7 1
the. substances ~-- substances.were,- essentially, not'
- s
?
detectible,-for a-first drug test failure.
For a-second
'3 drug test failure, a 30-day _ disciplinary suspension -- for a 4
second, is that what I said?
5-And then,.for the third failure, termination of 6
employment.
7 The other change, which' occurred as-an attachment 8
to this, and was later' deleted, had to do with the random 9 -
drug testing component, which was briefly administered, and to then, pulled back off.
11 Q
Does this document represent your Substance' Abuse 12 program as it exists today?
13 A
No, it does not.
- O)
(
14 Q
When -- when were changes made in the program?
15 A
Changes were made to the' program in November of 16
'88.
17 Q
Could you briefly describe those changes?
18 A
Those changes brought us into line with what we 19 now understand to be the standardized program which will be 20 in'effect at all nuclear power plants, involving what I will 21 new term a two-strike rule, which is a disciplinary l
22 suspension and mandatory rehabilitation on a first drug test 23 failure, and a substantial removal of unescorted access on a 24 second drug test failure.
At San Onofre, that would be a --
25 involved a termination of employment for that substantial
\\
38 l
1 period of time.
And also, a resumption of unannounced
{
}
2 random drug testing.
3 There are probably other changes that don't come 4
to mind now, but those I think are the principal changes.
I 5
Q Mr. Talley, in 1986 -- I'm taking you back, again, i
1 6
to 1986, could you describe the techniques which were used 7
in your drug testing programs to analyze collected samples?
8 MR. MIKULKA:
If I may have an injection, just for 9
ambiguity purposes.
He's indicated there are several 10 programs, including one blood test component.
Are you l
11 asking about the red badge drug testing compcnent, or the 12 other components?
13 MS. MOORE:
M y q u e s t i o n i s d i r e c t e d - - I '-l l 14 rephrase the question.
{
}
15 BY MS. MOORE:
16 Q
Mr. Talley, what techniques were used to analyze 17 the drug tests conducted as part of the annual red badge 18 renewal drug testing?
19 A
And the time frame again, is March of '86?
20 Q
Early 1986, yes.
21 A
Early 1986.
After about February of 1986, the i
22 following procedure was used to analyze urine -- and let me 1
23 just interject.
I don't want to ramble on too long here.
24 Is the -- is your interest in learning only about the 25 testing methodology, or are you interested, also, in the l
l 1
39 j
3.
D[. m\\ _
1 collection, chain of custody, and that sort of protocol?
'%.sl i
Q The testing. methodology.
]i c
3 A
Oh, thank you.
That will abbreviate the response j
J J
4 considerably.
5 The testing methods that were in use at the time 6
were to collect a specimen at the collection site, under the 7
protocols that I alluded to a moment ago, and some initial 8
checks are done on the urine.
By " initial checks", I mean 9
to say that the temperature is measured, and, at San Onofre, 10 we have a very tight temperature control in order to make 11 sure that persons do not bring in adulterants, or surrogate 12 specimens into the collection booth.
The specific gravity 13 is checked, and the appearance of the urine, and also, the
/,
14 individual, are carefully observed.
-(-\\
15 Once that is satisfied, and it appears that,the 16 specimen is all right for analysis, then, it is divided, and 17 a portion of it goes to an on-site pre-screening operation, 18 which is a SYVA emit -- a very standardized kind of.
19 urinalysis screen in order to determine the 90 perce'nt plus 20 that will be negative, and let the badging process continue.
~
21 And so, there is an on-site pre-screen of a portion of the 22 specimen, which occurs at San onofre.
23 If, as a result of that screen for illegal 24 substances, it's determined that we have a positive -- we 25 refer to that as a suspect specimen, those specimens are O
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l l
I' l
40 4
i
(
l' I
sent off-site, to an outside laboratory, for analysis.
Inl l
2 addition, we send 20 percent of our negatives off for 3
analysis in the same batch, and there is nothing to
'1 distinguish the ones that we consider suspect from the 5
j negative specimens.
6 These move off site, to the outside independent 7
laboratory, where other analyses are performed.
- Again, 8
there's a chain-of-custody protocol, which I feel very 9
nervous about not being able to talk about, but I appreciate to not having to do so, because of the length of that process.
I1 But, at any rate, once the specimens are received l
12 at the outside laboratory, they are, again, sub,jected to 13 what is referred to in the industry as an initial streen.
14 That is to say, they are tested by a methodology very I
15 similar to the methodology we use at San onofre for 16 pre-screening.
If the results are positive, they are 17 screened again, using emit, and if the result continues to 18 be positive, they proceed, then, to confirmation testing, 19 which utilizes a different testing methodology.
20 The scientific principal of the second test if l
21 different from the scientific principal of the first test.
22 And only if all the tests in the series that I've mentioned 23 are positive, it -- does the laboratory record a positive 24 test, and send it back to San Onofre to be reviewed by our l
l l
25 physician.
A positive test does not necessarily result in a l
l
41' 1
failed test, because the purpose of the medical review.
I 2
officer, which is our physician on site,.is to review it for 3
valid reasons for the presence of the drugs, or metabolites d'
which have been found in the tests; for example, 5
prescriptions, and in some cases, perhaps, over-the-counter 6
medication.
7 Once that is ruled out, and the medical review 8
officer determines that, indeed, in his opinion, this is a 9
valid,. positive test, and it indicates that illegal 10 substances were in the system, then, the -- the result is 11 declared failed.
So, the process for the analysis and 12 review of the urine is essentially as I've described here.
13 Q
Mr. Talley, used the term " positive".
Yob'used it
[G 14 V) several times in your answer.
With respect to your 15 pre-screening program, that you just discussed, what is your 16 criteria for determining that a response is positive?
17 A
The -- the threshold, or criteria, for determining 18 a positive test at the pre-screened level at San Onofre 19 would vary, depending on the drug.
But we attempted to 20 establish cut-off levels that were accurate and reliable, 21 but as low as we could possibly get them, because the 22 purpose for our pre-screen on site was to identify both 23 specimens without any detectable traces of drugs in them.
24 And those specimen which were clearly negative -- we wanted j
]
25 to be assessed against a very tight standard.
i
(
(
l l
43 i
if I could use the marijuana asj
}
1 So, for examp:
2 an example, the cut-off 2evel for marijuana, on site, is 20 3
nanogram per milliliter, which is the lowest reliable and 4
accurate calibrater that is compatible with the equipment we 5
were using.
l I
i 6
Q Mr. Talley, are you familiar with the cut-off 7
level that the laboratories used, that you send your samples 1
8 to?
l 9
A Yes.
10 Q
Could you tell me what the cut-off level in early 11 1986, that SmithKline would have used, would be?
f i
12 A
Again, that would depend on the drug.
0 13 Q
I'm sorry.
I will make my question for s ecific.
i 14 For marijuana?
l l
15 A
For marijuana, the cut-off level, and SmithKline 16 was established at 50 nanogram per milliliter.
- Earlier, 17 there wa a more universally standard 100 nanogram, which was 18 in use because there was a standard reagent at 100, but that 19 was changed to 50, and it's been 50, and it's been 50 since 20 that time.
21 Q
Do you know when it was changed?
22 A
I have not reviewed the records to determine 23 precisely when that change was made, but it was either in 24 late
'85, or early
'86.
25 Q
After the -- you testified that after the lab 1
r~; ;
y
~
f[
]
h d
J 43 1
if:
1 1
found positive urine-samples, they. confirmed their finding
'2 through a:- =well, pardon me, they didfanother" emit' test,
]
3, and:iffth'at was positive, theyfthenLconfirmed:it-throughL
-4 another technique. 'Could you. identify what technique.you're 5
referring to?
l.-
6 MR,. - MIKULKA:
Again, for ambiguityfreasons.. Is -.
7
~ are you --
8 MS. MOORE:
For marijuana.
9 MR. MIKULKA:
Thank you.
10 JUDGE COTTER:
Can we assume that all'-- this 11 entire line of. questioning relates to nothing other than 12
. marijuana?
..13 MS. MOORE:
Yes, we can.
[
(
.MR. MIKULKA:
All right, so assume it.
14 15 THE WITNESS:
So assumed.
16 In 1986, at SmithKline Bioscience Laboratories, 17 the'-- if I can just run through the entire process.
There 18 was an initial emit screen.
If that became positive, a 19 second elequat was -- or a portion of the specimen was taken 20 from the original vile, and moved to a second piece of 21 equipment, where a test was repeated.
If it was positive 22 there, it was moved to high-performance, thin-layer 23 chromatography technique, and if it were positive there, and 24 reported to us that way, we had, as a standard request, a 25 request to quantitate the level, using GCMS, gas i
(
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w) l
j 44 1
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t 1
1 1
chromatography, mass spectrometry.
That was the standard
{
}
l l
2 practice at the time.
l 3
JUDGE COTTER:
I'm sorry, I missed that.
Did you 4
say that after the second eleguat was tested through the 5
chromatography, it was, then, again retested?
f l
6 THE WITNESS:
Another eleguat would have 7
proceeded, then, to the -- well, if I may, let me just 8
review, because I want to make sure of what I just said.
9 It is tested twice, using amino assay technology, i
10 on two separate machines.
If it's positive on both 11 machines, in using the amino assay technology, it then moves 12 to a second methodology, which would be, if I'm counting 13 right, a third test.
And that is high-performance,' thin-ri 14 layer chromatography.
If it is positive at that third test,l l
15 as part of our standard protocol, Edison requested -- San 16 Onofre requested that another elequat be drawn, and the I
17 specimen subjected to a GCMS analysis to determine the 18 level.
So, that's four --
19 JUDGE COTTER:
So, in all those stages, there are 20 three elequats.
21 THE WITNESS:
Four if you count an elequat for the 22 first test.
23 THE COURT:
All right.
i 24 THE WITNESS:
Four tests, and four elequats.
{
l 25 fj i
(
I l
4
{
45
)-
1 BY MS.. MOORE:
1, Q^
L 2
Q Mr. Talley, I would like to show you a document, 3
which has been identified and admitted into evidence as NRC 4
Staff Exhibit 2.
5 (Witness proffered document.)
6 MR. MIKULKA:
If I may have it a moment, Ms.
7 Moore.
8 MS. MOORE:
Certainly.
9 (Pause.)
10 THE WITNESS:
All right, I looked at'it.
11 JUDGE COTTER:
Let me ask you all.
This is a 12 large room, and sound gets swallowed up,'so if you'd elevate 13 your normal speaking voice, that would be helpful. -
-c
. [
14 BY MS. MOORE:
D 15 Q
Could you describe, briefly, what this report 16-shows?
17 A
This report -- this is a laboratory report of a 18 urinalysis which was performed on the subject here, Maurice I
19 Acosta, on a specimen that was collected 3-6-86.
The 20 analysis in the report is from SmithKline Bioscience 21 Laboratories.
22 Q
And does that report indicate a positive drug test 23 for marijuana?
24 A
Yes, it does.
25 Q
And was this analysis, can you tell from this f~
(
l 46
(
1 report, conducted in accordance with the procedure you justl l
2 described; that is, the different -- the emit and 3
confirmatory test 4
A Yes.
5 Q
Mr. Talley, when Southern California Edison 6
received this report, could you tell us what action they 7
took?
8 A
The action that was taken, upon receipt of this 9
report by the medical review officer, was to perform his 10 normal and customary review for -- you know, of the report 11 itself -- verify the name, and so on and so forth, place it 12 into the confidential medical record, and then, pass to us, 13 the site management portion of San Onofre, a designation 14 that the specimen that was collected on 3-6-89 was declared l l
15 to be failed.
16 And upon receipt of that information, unescorted 17 access was withdrawn from the individual, there was a 18 counseling session, which took place, and the individual was 19 reassigned for a short period of time, until the drug level 20 reached zero.
And the record indicates that all of this 21 review that I had discussed earlier, which is a review of 22 the policy, and description of what would happen on the next 23 failure, was accomplished.
The individual was eventually i
24 reinstated unescorted access to the protected, subject, as l
25 was the policy at the time, to follow up testing, or period I
I l
l
(
I i
l
)
47
.q~~):
1
' drug' monitoring testing.
. ;V -
2 O
on this periodic drug monitoring test, would --
3-
-were the methods used, and let me clarify that.
Did you conduct -- do you conduct a pre-screening of. drug-monitoring 4
5 Ltests as wel3?
When you collect a sample for a 6
drug-monitoring, does Southern California Edison conduct a 7
pre-screening of that sample as vo:>
8 MR. MIKULKA:
Again --
9 MS. MOORE:
For marijuana.
10 MR. MIKULKA:
No, the objection is really in 11 point in time.
There's been so many changes in the program.
12 What time frame are we talking about?
13 MS. MOORE:
Well, let me ask first.
Let-me ask e
14 this.
O 15 BY MS. MOORE:
16 Q
Has the pre-screening requirement changed since 17 early 1986?
18 A
The equipment was purchased and put into use in 19 carly
'86, and once it got up to full utilization -- and 20 frankly, I can't give you a date when that happened.
There 21 was a period of use of the equipment, and during that period J
l 22 of time, we sent everything off-site for testing, until we l
23 had developed a confidence in our ability to accurately J
24 test.
But once we were up to speed, then, the policy has i
25 been very similar since that time.
The only thing that I
l
\\
~
\\
i 3
i 48 l'
1 would have changed, perhaps, would have been the number of 2
drugs that we tested for, or something like that.
3 Q
All right, once you started using your 4
pre-screening equipment -- or your equipment for your 5
pre-screening program, was it also used in periodic drug 6
monitoring circumstances?
7 A
On periodic drug monitoring tests, and any test 8
which is anything other than a routine test -- and I would 9
regard this as a special type of test, these tests are 10 always moved off site for independent analysis.
However, to 11 answer your question precisely, yes.
periodic drug 12 monitoring specimens are also pre-screened on site.
13 Q
I would like to show you a document which has been l
l 14 admitted into evidence as NRC Staff Exhibit 3.
15 (Witness proffered document.)
16 MR. MIKULKA:
If I may -- if I may have it a 17 moment, Ms. Moore?
18 MS. MOORE:
Certainly.
19 (pause.)
20 MR. MIKULKA:
Ms. Moore, Mr. Talley has reviewed 21 it.
22 BY MS. MOORE:
23 Q
Mr. Talley, this report is a report from a 24 laboratory of a periodic drug monitoring test conducted of 25 Mr. Acosta, is that correct?
\\
l l
1 1
l
m
- 1 I
\\1
^-
49 1....
c,.
1-AL
.That's correct.
2 o'
~ Could'you explain why this report comes from'a 13 laboratory other than SmithKline?
4 AT Yes.
It was standard practice at - 'in this. time
'S frame, in '1986,.that all periodic drug monitoring tests, 6
investigatory tests,.and other unusual tests.were conducted
'7
.atithe clinic,-rather than the badging urinalysis collection 8
site.
All specimens which are collected at.the Edison 9
medical clinic, utilized the corporate laboratory, which is 10-Central Diagnostic Laboratory.
And that explains'why this 11 report'camo?from CDL, rather:than SmithKline.
12 Q
Could you te31 us what action Southern California 13 Edison took,.upon receipt of this report?
,s I
14
' A The report was, once again, reviewed by the-q 15 medica 1' review officer, filed, and an extract, indicating 16
'that the report was -- was.a failure -- positive, was sent 17 to management.
The red badge, the unescorted access was 18
. deactivated within the prescribed-short period of time.
The 19 individual was subjected to a supervisory counseling 20 session.
The subjects discussed in that session were 21 reviewed by us -- with the supervisor ahead of time, and 22 then, later, documented in the memorandum for file.
23 The actions that were prescribed were those that
-24 were prescribed by the program, as it existed at the time, 25 for a second drug test failure, which was that the v.
.___.__________----_-____m___--_____m.
I i
50 1
1 individual was suspended, without pay, for a week, was given{
}
]
i 2
a post-suspension drug test upon return, was referred to 3
EAP, and the individual was placed on the periodic drug j
l 4
monitoring program upon reinstatement after the -- after i
5 that process was completed.
I 6
Q And were the tests uhed by Central Diagnostic
)
7 Laboratories the same, or similar to the tests which had 8
been used by SmithKline earlier?
{
9 A
Yes, they were.
f 10 MS. MOORE:
May I have a moment, your Honor.
11 JUDGE COTTER:
Certainly.
12 JUDGE FOREMAN:
Could I ask a question?
Did they 13 use the high-performance, thin chromatography?
It"doesn't
(
14
-- I don't see a reference to that in the report.
{
l 15 THE WITNESS:
Yes.
No, that --
16 JUDGE FOREMAN:
The Central Diagnostic Lab.
17 THE WITNESS:
Yeah, the testing protocol --
18 JUDGE FOREMAN:
I see only reports for the gas 19 chromatography.
20 THE WITNESS:
-- was not identical.
21 JUDGE FOREMAN:
Excuse me.
l 22 THE WITNESS:
I was just agreeing with you.
The 23 testing protocol was not identical.
The two emit tests 24 were the same.
The GCMS confirmation was the same, but 25 there was no thin -- high-performance, thin-layer I
l
51 l'
1 F-7 chromatography, as what I would refer to as a second
- \\
2 confirmation technique at CDL.
Your point is well taken.
~
3 JUDGE KLINE:
Another question, with regard to 4
Staff Exhibit 3, the lines, stating " Marijuana semi-quant, 5
UR" -- underneath it says "129" what appears to'be 6
" milligrams per milliliter."
Is that correct?
It says "MG" 7
for milliliter, rather than "NG".
8 THE WITNESS:
Yes, that -- the actual units were 9
nanogram.
10 JUDGE KLINE:
It should be NG, then.
11
' JUDGE COTTER:
N as in Nancy.
12 JUDGE KLINE:
Yes.
So, 129. milligrams per 13 milliliter is an error, or a typo, is that correct?
A i
14 THE WITNESS:
That's correct.
k 15 JUDGE KLINE:
Could'you also explain the meaning 16 of the entry that says, "none detect", or " negative",
17 opposite -- written opposite entries-that appear to be 18 positive?
l 19 THE WITNESS:
Yes.
The data, which is printed out l
20 by a computer, is roughly arranged in columns, which'are not 21 obvious in the printout.
But the column to which the 22 non-detect refers, is a column entitled Normals, which 23 refers to what one would expect to see in this -- of this j
24 test, for this drug.
So, one would expect that none would l
25 be detected.
l 1
52 l
1 JUDGE KLINE:
I see.
So, it is not a description l
}.
2 of the actual result.
3 THE WITNESS:
That's correct.
It's not a 4
description of the actual result, but what would be 5
expected.
6 JUDGE COTTER:
Well, to follow that up, why is 7
there not some similar entry under the third marijuana 8
screen entry?
That's blank, under the Normals column.
9 THE WITNESS:
I'm having trouble locating where 10 you're referring.
Is it --
11 JUDGE COTTER:
I make it three entries under the 12 column test.
The first two -- under the column Normals, the i
13 first one says "none detect", the second one says -
14
" negative", and the third one, there's no entry.
l I
15 THE WITNESS:
Yeah, the result for the screen --
16 and we see this occasionally, is intended to be the same as 17 the emit test at the top.
And I have no explanation for 18 why, occasionally the none detect is missing from the 19 Normals column.
20 JUDGE COTTER:
That's what you would have expected 21 to see in that blank space.
22 THE WITNESS:
Yes.
It was understood that that 23 was what was intended.
24 JUDGE COTTER:
Thank you.
25 ll l
i 1
f 53' H
i
[
1 BY'MS. MOORE:
.t i
Q
.2
-Q Would you' explain what actions. wore taken~by.
1 3
Southern California Edison'after receipt of this report?
I' 4
A
-The actions are pretty'much as I have' described, 5
which is that,'with~the completion of the administrative i
6 consequences of a.second drug test failure, the individual 7
. was, in fact, reinstated to unescorted access and. subjected 8
to the. periodic drug monitoring program.
9 Q
I'd like to show you a copy of NRC Staff Exhibit.
10 4,
which has been= admitted into evidence.
11 MS. MOORE:
Counsel, would you like a moment to.
'12 look at'--
. 13 MR. MIKULKA:
Yes, we're looking at them now.
(
14.
Thank you, Ms. Moore.
15 (Pause.)
16 MR. ROTHMAN:
While this document is being 17 ceviewed, Judge, let me just object to the characterization i
18 previously given on Exhibit 3 to the test' result which 19' showed 125 -- 129 milligrams per millileter.
I certainly 20 don't agree that that is a mere typographical error but I 21 would like to address that in cross examination of this 22 witness.
23 JUDGE COTTER:
All right.
24 (Pause.)
25 MR. MIKULKA :
Okay, we've had an opportunity to O
(
i
54 i
1 look at Staff Exhibit 4 and it's in front of Mr. Talley
{
2 right now.
3 BY MS. MOORE:
4 Q
Could you describe briefly what this report shows?
5 Let me withdraw that question.
6 Could you explain why there are three reports 7
which were issued for a sample collected on May 28, 1988?
8 A
Yes.
The -- this three-part report, which refers 9
to the analysis of specimens collected on 5/28/88 refer to 10 three distinct vials of urine which were collected for the 11 same test.
They've been identified on the report as sample j
12 number 1, sample number 2 and sample number 3.
13 These were required in keeping with our normal i
14 procedure of requiring additional specimens when the initial
}
s 15 check of the urine as it's received by the technician is 1^
determined to be abnormal in some way.
17 In this particular case, the specimens were 18 determined to have an extremely low specific gravity; that 19 is to say, they were extremely dilute, and so subsequent 20 specimens were requested.
21 The protocol requires that, after we receive a 22 second dilute specimen, the technician places a call and 23 supervision is summoned and the supervisor then accompanies 24 the individual for a period of time of up to four hours and 25 instructed not to consume any liquids or any substantial i
(
1 l
wmmmmx__s_-_-- - - - - - - - - - -, - - - - -. _ -
I i
L
'J 55-
)
',q
(
)
amounts of liquids and an attempt is made to-collect urine 1:
2-of the proper specific gravity so that there are enough-3 constituents in the urine to perform a' proper analysis.
j
.I 4
JUDGE FOREMAN:
These are not elequats.
They're 5
distinct separate samples.
J 13 THE WITNESS:
Yes, they were pretty much a full 7
60-milliliters on each occasion, collected and the chain of 8
custody and the taping of the vials were separate for each 9
of the three.
KL JUDGE FOREMAN:
And within what period of time, 11 from when to when?
12 THE WITNESS:
Approximately four hours.
A little 13 less than that, perhaps.
~
/
1 14 JUDGE FOREMAN:
Thank you.
1
'A 15 (pause.)
16 (Transcript continues on page 56; nothing 17 deleted.)
18 19 20 21 2'2 23 l
24 25 kJ
56 1
BY MS. MOORE:
l I
2 Q
This -- this report indicates a positive drug test 3
for marijuana, does it not?
4 A
Yes.
5 Q
What actions were taken by Southern California 6
Edison in response to this third drug test failure?
1 7
A In accordance with the -- with the policy that had 8
been begun with -- with Mr. Acosta, which was the four-step 9
process that I had described earlier, and in recognition, 10 that Mr. Acosta had received a disciplinary suspension but 11 had not yet undergone mandatory rehabilitation.
12 Upon the declaration by the medical review 13 officer, that this test had been failed, Mr. Acosta was once r
14 again placed on disciplinary suspension, and required to I
I
\\
15 undergo mandatory rehabilitation at a company-approved 16 facility.
17 Q
Mr. -- Mr. Acosta's unescorted access was 18 suspended also?
19 A
Yes, that's correct.
20 Q
Has that access been reinstated?
21 A
No.
22 Q
Could you explain why not?
A The process of reinstatement following a third 23 l
24 drug test failure, as I have described, includes a number of 25 reviews, and -- and checks.
The -- the requirement in our l
l 1
I
)
i 57
- ,m\\
(
1 procedure is that, at the end of all of those reviews, the 2
medical department must form an. opinion, to pass.to the' y
-l 3
-vice-president, relative to reinstatement.
That -- that.-
)
0 4
opinion was to -- was' unfavorable, and based on that
]
l 5
unfavorable opinion from the medical department, and after a d
6 review by Mr. Acosta's division management, the
!j 0
7 recommendation was forwarded to deny' reinstatement of l
8 unescorted access.
3 i
9 Q
Could you describe what you mean by " unfavorable"?
j.j 10 A
The medical organization --
i 11 JUDGE COTTER:
What?
Repeat the question, please.
]
1 12 BY MS. MOORE:
1 i
13 Q
Could you please describe what you mean By
(
14
" unfavorable"?
15 A'
Yes.
The word -- the term " unfavorable"'wa.s used t
16 on the form which was passed from the medical organization 17 to the vice-president.
And, in addition, there were --
i 18 there was a brief summary of the reviews that had taken 19 place earlier.
i i
20 MR. ROTHMAN:
Well, if I -- if I may, without I
l 21 extensively interrupting you, I'm going to object to this 22 testimony, on the grcunds that the best evidence as to what 1
l 23 the -- was on the unfavorable report, is the report itself, i
24 and that any other testimony is hearsay.
I 25 JUDGE COTTER:
Ms. Moore?
I I
\\
l
1 k
1 58 f
1 MS. MOORE:
Your Honor, in general, hearsay is l
I-k i
2 admissible in NRC proceedings.
3 Mr. Talley has -- in his capacity, is responsible j
4 for the fitness for duty program, and is -- is involved in 5
the actions which are taken as a part of this program.
- And, 6
he has just been asked to testify as to the underlying basis 7
for a decision that was made by Southern California Edison
~
8 Company, and I believe that he could do that.
9 JUDGE COTTER:
Is the report one ot your exhibits?
10 MS. MOORE:
No, it is not.
11 JUDGE COTTER:
Was the report processed through 12 your office, Mr. Talley?
13 THE WITNESS:
Yes, it was.
~
{
14 JUDGE COTTER:
Were you personally involved in iti Ii 15 THE WITNESS:
Yes, I was.
16 JUDGE COTTER:
Then I'll allow the questions.
He 17 can speak from his recollection of his own personal 18 experience in dealing with it.
19 MR. ROTHMAN:
I understand that, Your Honor.
I 20 defer to it, but I think it's extremely unfair, not having 21 the report here so that we can read it and find out what 22 else was in it, and cross examine Mr. Talley on it.
23 JUDGE COTTER:
Can you produce that report, Ms.
24 Moore?
25 MS. MOORE:
I don't have it in my possession.
\\
59
]
r:
a
. fh
(
)
1 Perhaps --
S- /
3 2
JUDGE COTTER:
That -- that was not my question.
I 3
MS. MOORE:
Yes, I understand that..
Perhaps --
l 1
4 JUDGE COTTER:
My question was, can you produce l
5 it?
6 MS. MOORE:
I believe we can, yes.
7 JUDGE COTTER:
All right.
We'll allow this line 8
of questioning, and we'll expect the report to be produced.
9 MR. ROTHMAN:
If I may --
10 MS. MOORE:
May I have a moment, please?
I spoke, 11 and I should request a moment to confer with Mr. Talle'y's 12 attorney to determine if, in fact, we can produce it.
I i
~
13 should do that first.
C
(
14 MR. MIKULKA:
Let me add one' thing, prior to that, 15 that I -- I'm personally aware that the union which 16 represents Mr. Acosta in a variety of matters unrelated to 1
17 this particular proceeding was, in fact, provided a copy of l
18 the document itself, so I am -- it's certainly possible that 19 Mr. Acosta has a copy.
I certainly know his union has a 20 copy.
21 JUDGE COTTER:
We have here an opportune time for l
22 a ten-minute recess, for you all to discuss this and work it 23 out, which we will take right now.
l 24 MS. MOORE:
Thank you.
25 (proceedings recessed briefly.)
I r
1 1
60 l
O i
1 BY MS. MOORE:
I I
)
i 2
Q Mr. Talley, before the recess, we were discussing l
3 a report, or a document, which you stated that you had j
1 4
reviewed, concerning a conclusion as to why Mr. Acosta's j
i 5
unescorted access has not been reinstated.
Could you
{
l 6
describe what this document is?
7 A
Yes.
The -- the process of reinstating an i
8 employee to unescorted access after a drug test failure is
)
i 9
followed on a computerized -- computer-generated form, so 10 that the various steps would be itemized on the form, and 11 the form, at San Onofre, is essentially a paperless form.
12 It flows from one step to another, through the use.of 13 computers, in a -- a network.
~
14 So, asthingsgofromsteponetosteptwotosted I
15 three, and as I mentioned, there's a background 16 investigation done by one organization, a psychological 17 evaluation done by a different organization, a return to 18 work release that has to be obtained that's yet another 19 organization, so there are a variety of individuals that are 20
-- that have a role to play in the reinstatement process.
21 So, the form, essentially, is a computerized form 22 which lists the steps, and which requires, at a point near 23 the bottom, for our company medical department to assess all 24 of the preceding pieces of information and render a 25 judgment.
I
\\
r i
i l
'61 v/sA s
[
1 And if -- if I may, I'd like to -- to --Eto
?
clarify what it is that they are saying, and what it is that 3
they are not saying, in general.. When somebody has been 4
found to have used illegal drugs,-as a result of something 5
that's seen in the urine, it's recognized that what is most 6
likely detected is not some signal that the person was 7
perhaps unfit for duty, or intoxicated, or grossly impaired 8
at the moment, but probably a reflection on what the person 9
had done off-duty; had violated the rule with regard to off-10
. duty involvement with illegal substances.
So --
11 JUDGE COTTER:
Let me interrupt you for a second.
12 THE WITNESS:
Yeah.
13 JUDGE COTTER:
What is the reason for tha't b) 14 assumption?
\\--
15 THE WITNESS:
Pardon me?
16' JUDGE COTTER:
What is the reason for that 17 assumption?
I 18 THE WITNESS:
The --
19 JUDGE COTTER:
That it was an off-duty activity 20 rather than on on-duty.
21 THE WITNESS:
Given that the -- the two 22 opportunities are -- are either on-duty or off-duty, we have 23 surmised, based on persons who have observed the behavior of 24 the individual while they were on-site, that they were not 25 l
grossly impaired while they were on-site.
1
62 F
1 And, your point is well taken.
It does not rule {
2 out the possibility that the person may have brought drugs 3
on-site, and used a small amount which would be consistent 4
with the level that we might see in the urine.
That is a 5
definite possibility.
So --
6 JUDGE COTTER:
I take it, that there is a step, 7
also, in this process of reaching the conclusion, that there 8
was a failure which involves consultation with co-workers or 9
supervisors, to get a -- an observation evaluation of 10 performance?
11 THE WITNESS:
Yes.
Yes, that's right.
And the 4
12 point that I was making with my statement about what it is 13
/.
that the medical department is saying and what they are not 14 saying, is that they're really not fastening a judgment on l I
15 when the drugs were administered.
16 Now, the reason for that is -- it goes back to a 17 1982 ANS 3.3 requirement which we have incorporated into our 18 access control requirements, which -- which indicates that a 19
-- a person who is determined, as a result of screening, to 20 have used non-prescribed narcotic or hallucinogenic drugs 21 must have his reputation of reliability and trustworthiness 22 questioned by the licensee.
That's a requirement that we 23 have incorporated.
24 That use, and that questioning, is the process of 25 deactivation of the badge, and reassessment of the I.
l L-_______---
l
63 p
1 individual, with regard to how they are likely to act~in the 2
future.
So, an indication of a -- of a -- something 3
involving the illegal drug involvement, even off-duty, is 4
required to be a reflection, or is something that we must
~
5 consider and evaluate.
6 And so, it's this evaluation process that was 7
occurring at this time.
There were some assessments made j
.with regard to what this individual was likely to do in the 8
9 future, given the many things that psychiatrists and -- and to medical people and psychologists, in this case, all three, l'
would -- would determine to apply in the case.
12 So, what-was being assessed was this individual's 13 reputetion and character of reliability and trustworthiness, X
.j Y
14 not a reading of whether or not the individual was currently
- N.)
15 impaired.
10 So, that -- that finding was then made a matter of 17 record on the reinstatement form that we're -- we're talking 18 about now.
It -- it -- it contained the word " unfavorable" 19 with, as I recall, a one-or a two-line summary of the 20 psychiatric reviews and a psychological testing which took 21 place prior to that point, as -- I believe that it will be 22 introduced and you can check me on my recollection of the --
23 of the words, but I believe the words were to the effect 24 that, "There is a high likelihood of resumed drug use," as 25 an explanation for the unfavorable statement.
(
(
l a
i l
64 1
3 1
JUDGE KLINE:
That's based on data -- underlying l I
i 2
data, other than the drug test itself?
3 THE WITNESS:
That's correct.
4 JUDGE KLINE:
Does the NRC have access to that 5
underlying reasoning, other than drug testing?
i 6
THE WITNESS:
Yeah, I'm going to have to plead 7
ignorance here.
I'm not sure whether or not those kind of 8
internal psychiatric reports are releasable.
I just don't I
9 know the answer to that.
10 JUDGE KLINE:
All right.
11 MS. MOORE:
May I have a moment?
12 JUDGE COTTER:
Yes.
13 (Pause.)
~
14 MS. MOORE:
Your Honor, the staff has no further l I
15 questions.
16 JUDGE COTTER:
All right, Mr. Rothman?
17 CROSS EXAMINATION 18 BY MR. ROTHMAN:
19 Q
Mr. Talley, if we could just briefly go over your 20 background again.
I know you told Ms. Moore about some of 21 your qualifications, but I have just a few additional 22 questions.
23 You said you had a certificate in industrial --
24 what was it -- industrial quality --
25 A
Control.
l I
l 65 i
.Q Control.
Is that a certificate issued by the.
~
2 State of California?
3
'A It's issued by a -- a college.
4 Q-
. hich' college was that issued by?
W 1
5 A
Mount San Antonio College.
6 Q
Where is Mount San Ant'onio located?
7 A
In. Walnut, California.
8 Q
What did you have to do to get a certificate in.
l=
9 industrial quality control?
10 A
There were a series of requirements, including, as 11 I recall', approximately 12 units'of course work.
12 Q
Over what. period of time?
13 A
Approximately one year, but perhaps less.~ I -- I b.
14 think about one year.
15 Q
Does it -- did any of the course work at Mount San 16 Antonio College have to.do with drug abuse, drug problems, 17 drug detection, anything like that?
18 A
The course work was generic to the general field 19 of quality control.
The students who were represented there 20 were from the medical and laboratory professions, as well as 21 other professions.
So, the subject matter was covered, only 22 in the general quality control principles sense.
23 Q
I take it, your answer is that none of the 12 24 units that were involved in obtaining the certificate were 25 specifically addressed to drug detection or problems in any
66
)
l 1
l
-- any way?
{
}
]
1 2
A That is correct.
3 Q
You also said that you had a bachelor of arts in j
l 4
management science, is that right?
l 5
A Bachelor of science.
6 Q
A bachelor of science?
And where did you get that 7
-- where did you get your bachelors degree?
8 A
Cal State University, Los Angeles.
f 9
Q Was any of the course work -- work that you took
^
10 to get your degree in management science directed toward the 11 field of drug detection, drug use, or any related field.
12 A
No.
Again, this was just general science.
13 Q
Then you said you had a masters degree in'
'(
management, is that correct?
l I
14 15 A
That's correct.
16 Q
And that was from the University of Redlands?
17 A
That's correct.
18 Q
Now, during the course work that you took at the 19 University of Redlands, were any of the courses that you l
20 took directed toward drug detection, drug use, or any 21 similar related field?
22 A
No.
Just management.
l 23 Q
Is it true to say, then, that the first contact 24 that you had with the field of drug detection or drug use 25 was in your capacity -- in your capacity as an employee of i
\\
67 1
(
/
)
1 Southern California Edison?
\\
/
2 A
Yes.
3 Q
And that was beginning when?
4 A
The first involvement with the -- the 5
administration of the drug program was mid-1984.
j 6
Q Now, what kind of training did.you go through with j
7 Southern California Edison to qualify you for involvement in 8
their -- either formulating, or involvement in any way, with 9
their drug abuse -- or drug program?
10 A
I think that the -- the requirements were 11 relatively specific with regard to the ability to -- and the 12 training involved, in obtaining sufficient technical 13 information from within the company, to put a progr'am f :.
(
)
together and staff it, and proceduralize it and implement 14 1
15 it.
It did not require me to be an expert -- a technical 16 expert in the areas that are involved with substance abuse.
17 Q
Is your answer, then, that you had no formal 18 training?
19 A
No toxicology training.
That's correct.
20 Q
Now, in answer to some of Ms. -- Ms. Moore's 21 questions, you said that the primary purpose for SCE's 22 policy regarding drugs was to implement the policies that 23 would lead to nuclear safety.
24 A
That's correct.
25 Q
And -- and that this drug program was one way of r')
l lv l
i
68 insuring the safety of the nuclear program, and -- in l
I 1
2 general, and specifically as it relates to what I'll call 3
You're familiar with that acronym, I guess?
4 A
Yes.
5 Q
In the course of your involvement with formulating 6
SCE's program, did you form any opinion as to whether 7
alcohol abuse was a -- posed any particular safety problems 8
with regard to operation of a nuclear generating station?
9 A
Your question is, did I form any opinion during 10 the period of time that I've been there?
Is that 11 Q
During the time you were putting this drug abuse 12 program together.
13 MR. MIKULKA:
To the extent it's appropri5te, I'd l
14 just make an objection on relevancy grounds.
His personal I
15 opinion regarding alcohol has nothing to do with the 16 proceeding involving the revocation of a license for drug 17 abuse.
18 JUDGE COTTER:
What's the purpose of the question, 19 Mr. Rothman?
20 MR. RCTHMAN:
Well, the -- I think the purpose of 21 the question, Your Honor, is to -- let me -- let me back up 22 a step.
I have a strong feeling that alcohol -- the use of 23 alcohol is a much more prevalent problem, both at the -- in 24 the nuclear power industry and in the general public than 25 the use of marijuana or other illicit drugs is.
I have a l
l t
t 69 j
I.-
I feeling that the' levels of impairment represented by alcohol
"'\\~-l l
2 use are greater than those generated by'the low levels of.
)
3 marijuana use that were found in the two tests at question 4
that Mr. Acosta took.
5 I also have a feeling that the' implementation and 6
publicity given to these drug screening and random drug, 7
testing programs are more a -- a sock to the general public 8
than they are a' procedure to actually test and eliminate 9'
operators who are operating in an impaired manner.
And, I 10 think Mr. Acosta has.gotten caught up in that.
- 11 The purpose of my question is'to determine whether 12-Mr. Talley, in formulating this program, has actually 13 attempted to ferret out people who are impaired, to -- in a C
14
(
greater number, by use of alcohcl, rather than to try to 15 generate the kind of publicity that this kind of progr.am has 16 generated in -- in finding one or two people who -- who are 17 in Mr. Acosta's situation.
That -- that was the purpose of 18 the question.
19 MR. MIKULKA:
Same objection.
It has nothing to 20 do with it.
21 MS. MOORE:
I'd -- I'd join in that objection.
22 JUDGE COTTER:
Even conceding, Mr. Rothman, your 23
-- your feelings and premises, it -- I don't see that it's 24 relevant to whether or not -- well, that it's relevant to 25 the issues that we're faced with in this -- in this narrow O
l l
70 l
l 1
instance.
{
}
l l
2 It sounds to me like you're trying to enlarge the 3
scope of our jurisdiction, to include the general policy for 4
drug and alcohol abuse at -- at Southern California Edison, 5
and that's not what's we're here to hear.
6 BY MR. ROTHMAN:
7 Q
Does Southern California Edison have a policy of 8
testing for alcohol, as well as illicit drugs?
9 MR. MIKULKA:
Objection.
Same grounds.
Southern M)
California Edison has 15,000 to 18,000 employees, only a 11-small proportion of which would be subject to the 12 jurisdiction of the Nuclear Regulatory Commission at the San 13 Onofre Nuclear Generating Station.
~
I 14 And as the attorney appearing on behalf of I
l
~
15 Southern California Edison, and representing Mr. Talley, I 16 object on relevancy grounds.
17 JUDGE COTTER:
Mr. Rothman?
18 BY MR. kOTHMAN:
19 Q
Well, let me ask if you won't refer to NRC Exhibit 20 5,
Mr. Talley.
Do you have that in front of you?
21 A
Yes.
22 Q
What's the title of this document?
Is that 23
" Alcohol and Drug Use"?
24 A
Yes, it is.
25 Q
Did you play any part in formulating the policy l
I l
l
71-
. /'m
(
J set out in this document?
1 w
2-A I played very little, if any, part in formulating 3
the alcohol portions of what -- what I was instrumental in, d
in getting published in this document --.it reflected a 5
long-standing policy on alcohol.that'isia company-wide-6
- policy, 7
Q Now, let's, if we can, go on to the failed -- the 8
. reports of the failed drug test that Mr. Acosta'took.
Those 9
are contained in NRC Exhibits 2,
3 and 4.
Do you have those 10 before you?
11 A
Yes, I do.
12 g
All right.
Let me talk to you about Exhibit 2, 13 just for a moment.
Before the -- before the sample'of Mr.
fm i
)
14
-Acosta's urine was submitted to SmithKline, I take it, that kl 15 Mr. Acosta. underwent some. kind of pre-screen that was 16 administered by Southern California Edison, is that correct?
17 A
That was the policy at the time, for most 18 specimens, and I'm -- I don't have any records with me to 19 indicate that that was done in -- on this occasion.
20 Q
Well, in fact, that would be the only reason that 21 a sample was sent to SmithKline,-wouldn't it?
That would 22 be, that if a sample had been tested positive first, on 23 site, correct?
24 A
No, that's not correct.
l 25 Q
Could you explain in what other circumstances a E
(
v
[______________________________
j
72 I
1 sample might be sent directly to an outside laboratory?
l
}
2 A
In early
'86, we sent all specimens to an outside 3
laboratory for analysis, even though some of them may have j
i 4
been pre-screened.
This was at the early stages of our pre-l 5
screening operation.
j i
6 Q
Now, do you know what kind of equipment SmithKline 7
uses to do their screening?
8 A
I can't speak with confidence with regard to the 9
equipment that was used in 1986.
10 Q
That's -- that's what I'd like to ask you about.
11 Now, on Exhibit 2 here, which we're looking at; the report 4
l 12 of the results of a -- a sample collected on March 6th, 13 1986, toward the lower third of the page appears "m'arijuana 14 screen, screen positive".
Do you see that?
{
l 15 A
Yes, I do.
10 Q
Do you know what level of marijuana or metabolite 17 thowed up in this positive test?
j 18 A
We know what level of one of the 33 metabolites of i
19 marijuana showed up in the test.
20 Q
And which one do we know about?
21 A
Delta nine.
22 Q
And what level did Delta nine show up at?
23 A
Seventeen micrograms per liter.
24 Q
And where do you see that?
25 A
In approximately the upper quarter -- quadrant of
73 1
the -- of the results area.
It begins -- there's an l
2 asterisk, "THC-COOH quant. 17 micrograms per liter," and the 3
reference range should have been undetected.
4 JUDGE COTTER:
What -- what page was that?
5 MR. ROTHMAN:
I'm sorry, I don't see that, Mr.
Talley.
Maybe our exhibits differ.
Because of the poor 6
7 quality, I'm going to walk over.
8 JUDGE COTTER:
Uh-huh.
9 MR. MIKULKA:
The best thing to do is to check the 10 report that Mr. Talley has with the one that the board has, which I leave to the inner -- it looks as though Mr.
12 Rothman's looking at a somewhat different report..
This is
~
13 the report that was handed to Mr. Talley.
14 MR. ROTHMAN:
Well, let me ask the Court; does the 15 Court have a -- a report which shows a level of -- of 16 marijuana or metabolite indicated on the report?
17 JUDGE COTTER:
It says, in my copy, if you start 18 at the left-hand column titled " Test" -- do you see that?
19 The very top, where it's in black bold letters, " Test".
The 20 line below that is -- is dark black, and then there's a 21 white line that says, " Comments".
So, if you count down 22 from " Test" one, two, three, four, five -- the sixth line 23 says, "THC-COOH quant., and under the column labeled 24 "Results" in the dark part that did not xerox clearly, it 25 says "17" and under the column labeled " Units" it says O
74 l
"MCG/L".
l I
J MR. ROTHMAN:
You -- you -- you --
3 MR. MIKULKA:
That's the one that Mr. Talley has, 4
as well.
I just shared a copy with the NRC staff.
5 MR. ROTHHAN:
Well, I'm not sure what we have 6
then.
We have a copy of another report, same sample 7
collected, same date, but the -- the top half differs, Your 8
Honor, and there is no indication of -- of results on it, O
but maybe we can address that tomorrow, and --
10 (Pause.)
11 MR. MIKULKA:
I think, at least, we're all agreed 12 that the copy that we're referring to right now is the
~
13 stipulated -- for purposes of admission copy?
14 MR. ROTHMAN:
Yes.
l I'
15 MS. MOORE:
Yes.
16 BY MR. ROTHMAN:
17 Q
Now, the -- the 17 indicated in the -- in the 18 results column, a few lines down from the top; that was a 19 level detected, according to the report, by the gas 20 chromatography method, is that correct?
l 21 A
That's correct.
22 Q
Were there any confirmations of that level 23 attained in this report, or indicated in this report?
24 A
A second quantitation, are you speaking of?
25 Q
Well, is it your belief that the gas o
I l
i 1
l<
V 75
, ys l }
j-chromatography test, the~first test for THC or metabolites, 1
.v L
2' on the sample made by SmithKline?
l 3
A No.
4 Q
Which was the first?
5 A
The first test was the marijuana screen, which is 6
-- which appears at the bottom.
7 Q
Where it says, " screen positive," correct?
8 A
'Ti.at's correct.
9 Q
And then,'about two lines under that, it says, 10 "the emit screen was positive".
Do you see that?
11 A
Yes.
12 Q
Can we tell from this report, what level of THC or
~
13 metabolites the emit screen showed?'
1 14 A
No.
15
.Q Now, at the time that this report was issued, did 16 SCE have a -- an initial cutoff level for positive results?
17 A
Yes.
I 18 Q
And what was that level?
19 A
I'm going to have to speak with a little bit of 20 ambiguity here.
It was probably 100 nanograms per l
21 milliliter, but about this time, we reduced that to 50, so 22-it was either 50 or 100, and at this point I -- I -- I'm 23 unsure of which.
24 Q
And we don't know from this test -- from this 25 report, whether the screening test was above 50 or below 50,
l 76 f
1 do we?
{
l 2
A Yes, we do.
3 Q
How do we know that?
4 A
Because if either of the cutoff points were to 5
.have been used; 100 or 50, the only way the screen could be 6
positive is if it were 50 or above.
i i
7 Q
Well, you're assuming, then, that SmithKline used 8
the same cutoff levels that SCE used, is that correct?
9 A
No.
4 10 Q
Okay. What -- tell me how you -- what you base 11 your answer on.
12 A
In 1986, the medical department in the company had 13 a standing protocol with the laboratory for -- for --
4
\\
14 Southern California Edison cutoff levels for each of the l
I 15 drugs of abuse, and that was the basis.
It was a laboratory 16 procedure that had been agreed to in advance, by the -- by 17 the Edison Company.
It didn't -- didn't relate at all to 18 our pre-screening at San Onofre.
19 Q
Do you know what kind of emit equipment SmithKline 20 was using at the time?
21 A
No, I don't.
22 Q
Do you know, as a person involved in formulation 23 of drug abuse programs, that there is a type of emit program 24 unable to detect --
25 MR. MIKULKA:
Objection.
He's -- he just said he I
t l
i i
i
(
l l
t l
'l.
77-1 a
j s
\\
l didn't know what machine it was,-and he's about'to give his i
?h.
~
2 own opinion or'somebody else's opinion, regarding the 3
' quality.
4-JUDGE COTTER:
Overruled.
He can answer it.
-5 BY MR. ROTHMANs 6
Q Do you know that there is a type of emit equipment 7
that is' unable to detect levels of THC in urine specimens, 8
less than 200 nanograms per milliliter?
9 A
Do I know that there is.such a piece of equipment?
10 g
- yes, 11 A
No,'I don't know that there is such a piece of 12 equipment.
13 Q
Now, do you know whether SmithKline, in M' arch of n
't 14 1986,'was'using the emit ST or the emit DAU system?
15 A
In -- in early
'86, I have no positive information 16 that -- that they were using then what they were using --
17 what they are using now, which is DAU.
18 Q
They are now using DAU?
19 A
I believe DAU refers to drugs of abuse in urine, a l
l 20 designation of -- probably, of the SYVA.
1 21 JUDGE COTTER:
Speak up, Mr. Talley.
They can't 1
22 hear you.
23 THE WITNESS:
I have no positive information, 24 either way, on what three agents, or calibrators, were used 25 by SmithKline in -- in '86 10 U
i U__--_--__--____
78 i
1 BY MR. ROTHMAN:
I I
l 2
Q Does SCE have an emit system on site at -- at 3
4 A
Yes.
5 Q
What kind of system is that?
6 A
The system that is in use currently is a Kobass 7
analyzer, and it uses the SYVA Amino Assay reagents.
8 Q
And when was that system put into effect?
9 A
The -- the reagents were used for the first time 10 in early 1986, with an older piece of equipment called the 11 auto carousel.
12 Q
Have you ever had any problems with the testers on 13 site at SONGS falsifying test data?
(
14 A
I have no information that would lead me to 15 believe that any tester had falsified test data, no.
16 Q
To your knowledge, has any tester ever been 17 terminated for falsifying test data?
18 A
Not to my knowledge, no.
19 Q
Now, you talked previously about a court 20 injunction that had been issued, which prohibited SCE from 21 administering random drug tests.
Do you recall that?
22 A
Yes.
23 Q
Do you know what the terms of that injunction 24 were?
25 A
I'm familiar with the general content, yes.
I t
79
]
]
1 Q
Just -- can you just, in general, give us your 2
understanding of what that injunction was?
3
.MR.
MIKULKA:
Objection, relevancy.
i I'm also the lawyer who handled the case on the d
l 5
injunction.
I'd be happy to provide Counsel with a copy, 6
assuming the licensing board finds it's relevant.
An 7
injunction, I might add, which was overturned on appeal to 8
the Ninth Circuit Court of Appeals, as being improvidently 9
granted.
10 JUDGE COTTER:
Don't testify, Counsel.
He can 11 answer.
Your objection's overruled.
12 MR. MIKULKA:
Thank you.
13 THE WITNESS:
Could you repeat the question, 14 please?
15 BY MR. ROTHMAN:
16 Q
Can you give us your understanding of what that 17 injunction was?
18 A
The -- the injunction required the company to 19 revert to the methodology for announcing the test, which was 20 to say, revert from a random selection to an announced, 21 annual test, as it existed prior to December of 1986.
22 Q
When was that injunction -- what were the -- what 23 was the time period that that injunction was in effect?
24 A
Let's see, I guess I could -- I could figure it 25 out.
It would be from the end of '86 until it was lifted in 0
I 80 1
November of
'88.
l I
l 2
Q Now, the test of Mr. Acosta that was -- that is 1
3 reflected in NRC Staff Exhibit 4; do you have that in front 4
j of you?
l l
5 A
Yes.
6 Q
Now, the date that the sample was collected for 7
that test was May of 1988, is that correct?
8 A
That's correct.
~
9 Q
Was that sample collected, to the best of your 10 recollection, while the court injunction was in effect?
11 A
Yes, it was.
12 Q
Do you know whether Mr. Acosta was informed prior 13 to the administration of this test of the date that'it would 14 be given?
I I
15 A
He -- he -- there was -- it was no notice.
There 16 was no notice.
17 Q
This was a random test, wasn't it?
18 A
It was not a random test.
19 Q
Okay.
Then, tell me what the difference is 20 between a -- an unannounced -- let's see, how did you put 21 it?
An -- a periodic unannounced test, and a random test; 22 what's the difference?
i 23 A
There's a large --
1 1
24 MR. MIKULKA:
I'm going to make an objection, now j
1 25 that I've seen the direction that it's going.
I make it on 1
l o
(
I I
i I
j l
l l
l
h.,
81 1
1
.()
1 relevancy grounds.
It's clearly 1. relevant, in the event
}
?
that it looks like Cour.sel is attempting to somehow show j
~- '
3 that this particular test was somehow in violation of an I
I 4
injunction, the terms of which, my client hasn't given 5
anything other than the bare outline.
It has no bearing on l
6 this particular proceeding, and it clearly wasn't violative i
7 of the injunction, because this particular set of j
q 8
circumstances was considered when the judge signed the I
f 9
injunction, all of which, has no bearing on this t
10 particular proceeding.
I can't see any possibility as to 11 how it could.
12 JUDGE COTTER:
Overruled.
You may answer it.
13 9HE WITNESS:
The -- the rules under which this r
1 14 test was administered was the rules of the Periodic Drug O
15 Monitoring Program, which was a part of the program 16 unaffected by the injunction, which is to say, there was no 17 indication anywhere in the injunction that the program, as 18 it existed prior to December of 1986, could not be 19 continued, which included the unannounced testing of person 20 who had experienced one or more drug test failures in the 21 past.
22 I could go into the -- the difference between the 23 random test and the unannounced test, which was your 24 question, if you'd like for me to do that.
The random test
{
25 has a couple of parameters connected with it, which must be I
i
\\- T
/
J
{
1 l
1
?
i
82
(
1 satisfied; the chief of which is that all the persons in thq
)
2 population have to have an equal probability of being 3
selected each time there's a sample drawn from that 4
population.
5 That's not the case with the Periodic Drug i
6 Monitoring Program, and that -- that's the chief difference.
7 One is statistically random in its methodology for 8
selection, and the other is -- is not statistically random.
9 The only thing that is similar, is that they're both 10 unannounced.
11 BY MR. ROTHMAN:
12 Q
As long as we're on Staff Exhibit 4 here, which is 13 the report of the sample collected in May of 1988, I think k
14 you testified earlier that there was a problem with the
{
}
15 initial sample given by Mr. Acosta for this test, is -- is 16 that correct?
17 A
That's right, yes.
18 Q
Okay.
You -- you're not meaning to imply, are 19 you, that Mr. Acosta did anything deliberately to cause 20 problems with the initial sample, are you?
~
21 A
No.
22 Q
In fact, Mr. Acosta was observed giving that 23 initial sample, wasn't he?
24 A
No.
25 Q
How do you know that?
a 4
li
- 83 1
[ h F
A' It was.not the policy at the time to observe the-2 collection. process, and that was not done in this case.
]
j 3
Q.
LNow, have you ever spoken to Mr. Acosta:before' 4
today?
5 A.
n o',
i 6
Q Aside from Mr. Acosta's involvement'in'the drug-
-7 testing program, do.you know anything about his performance 8
- over.the years as an employee for SCE?
i 9-A
~I have no specific knowledge.of --aof performance, J
10 except as it was characterized and reflected, from time to 11 time, by those that were involved in the reinstatement 12 process.
13-q.
Now, do you know whether, during Mr. Acosta's
[
14 performance as an employee, he has a reputation for 15 reliability and professional competence?
16 A
I don't know that any such determination was 17 made.
You're speaking of a performance appraisal, or some 18 official employee assessment?
19 Q
Well, have you ever seen any of Mr. Acosta's 20 performance appraisals?
~
21 A
No.
22 Q
Now, you testified earlier about a report 23 generated by a physician, which contained the word 24
" unfavorable".
25 A
- yes,
\\
i-
l l
84 1
Q Is that a physician.who was on the staff or -- orj
}
2 tell me what the relationship was of that physician to SCE.
3 A
That physician is an employee of the company, and 4
is the -- the medical director at San onofre, and acts in 5
the role of the medical review officer with regard to our 6
substance abuse program.
7 Q
You testified that when you reviewed that report, l
8 you found a sentence, or some words, to the effect that i
9 there was a high likelihood of resumed drug use or drug 10 abuse.
Do you recall that?
11 A
Yes.
12 Q
Do you know what specific information the 13 physician used to come to that conclusion?
i, f
\\
14 A
I have no firsthand knowledge of -- of any
{
}
l 15 specific information that resulted in that.
16 Q
Let me ask you, if you will, to look at NRC staff l
l 17 report -- Staff Exhibit 3, which is the report of the test i
1 1
18 done on a specimen collected May 12th of 1986.
It's by the
]
19 Central Diaghcstic Laboratory.
Do you have that in front of 20 you?
l I
e 21 A
Yes, I do.
I l
22 Q
What was the initial -- where is the initial test 23 performed by Central Diagnostic reflected on this report?
l 24 A
At the bottom of the first page.
25 Q
Where it says, " marijuana screen positive"?
l I
85 a
A s
- [
]
1 A
That's correct.
I
- Q,I 2
Q Now, is there a specific level reflected on the 3
marijuana screen?
4 A
Yes.
5 Q
And where -- where is that found?
6 A
of the three entries at the bottom, it is the top 7
entry, which begins, " marijuana, semi-quant, UR".
That's --
8 that's the entry which refers to the semi-quantitated amount 9
of total cannebanoids.
10
-Q And that refers to the " marijuana screen positive" 11 which is at the bottom, does it?
12 A
It was a separate test done with the -- through 13 the same methodology.
A
[' /#'}
14 Q
Okay.
And reflected under the bottom line of the 15 top portion, " marijuana, semi-quant," what is the UR, by the 16 way, do you know?
17 A
No, I don't.
18 Q
Reflected under that is "129 MG/ML".
Do you see 19 that?
I 20 A
Yes.
21 Q
Is it your understanding that MG is an 22 abbreviation for milligrams?
23 A
MG generally stands for milligrams.
24 Q
Milligrams is not -- it's not the same thing as 25 micrograms, is it?
pm
/
\\
+
\\
4 l
l 1
E l
86 e
1 A
No.
l g
2 Q
And it's not the same things as nanograms, is it?
3 A
po, 4
Q Now, in the -- in the middle portion of the test I
I 5
report is a portion that begins, " marijuana quant forensic".
I I
I 6
Do you see that?
7 A
- yes, 8
Q And this is the result of a test performed by gas 9
chromatography, is that right?
10 A
Masspectrometry, yes.
I 11 Q
Now, on the -- on the form here, the top portion 12 that is " semi-quant UR," and the bottom portion which says, 13
" marijuana suceen positive" were both performed by central 14 Diagnostic somewhere in Tarzana, is that correct?
l
}
15 A
That's correct.
16 Q
The middle portion seems to reflect the test that 17 was done here in San Diego, is that correct?
18 A
That's correct.
19 Q
Pow, is the facility in San Diego a Central 20 Diagnostic Laboratory facility?
21 A
No.
22 Q
How is it that the Central Diagnostic Laboratory 23 is reporting on the results of a test performed at an 24 independent -- at a laboratory independent of Central 25 Diagnostic?
q l
l l
87-4 j_'%
A The lab.which is reflected.on.the report, ~ Poison j) 1 v
2 Lab, was contracted for this purpose, in general, so.that 3
quantitation with GCMS were a standard practice, and this 4
laboratory was the routine laboratory which was used for-5.
that purpose by CDL.
6 Q
Did the Poison Lab generate their own report of 7
test results?
8 A
Yes.
9 Q
And this, presumably, on Exhibit 3, is a 10 recapitulation or restatement or reflection, somehow, of 11 test results that were sent to Central Diagnostic by the 12 poison Lab?
13 A
Yes.
A i
14 Q.
Do you have available to you the report issued by 15 the Poison Lab?
16 A
No.
17 Q
Is there a -- what I'll call a -- a universal 18 constant for false positives that you've found to apply, in 19
. general, for the industry using this kind of test equipment 20 and procedures?
21 MR. MIKULKA:
Objection.
Not only is it beyond 22 the scope of direct, it may beyond his scope of knowledge.
23 He's testified as to what the policies and practices are at 24 the San Onofre Nuclear Generating Station.
He did not 25 attempt to be qualified as an industry expert.
O
88
+-
i 1
JUDGE COTTER:
He can answer, if he knows.
If hel l
2 doesn't know, he can say so.
3 BY MR. ROTHMAN:
4 Q
Do you understand the question?
5 A
Yeah. I know of no such general standard.
6 MR. ROTHMAN:
I have no further questions.
7 JUDGE COTTER:
Any redirect, Ms. Moore?
8 MS. MOORE:
May I have a moment?
~
9 JUDGE COTTER:
Yes.
10 MS. MOORE:
Thank you.
11 (Pause.)
12 MS. MOORE:
The staff has no further questions.
13 JUDGE FOREMAN:
To put things in context,'since 14 the implementation of the program, how frequently has a I
I 15 marijuana screen turned positive -- come out positive?
16 THE WITNESS:
The --
17 JUDGE FOREMAN:
Have you had positive marijuana 18 screens in urine analysis many times?
19 THE WITNESS:
If -- if I can qualify the answer, 20 it'll save some mental calculations.
The -- the failure 21 rate for all forms of drugs are about two percent for 22 employees, and about four percent for contractors, and of 23 those, about 70 percent are marijuana.
You know, I could --
24 I would have to think for awhile to give you a precise 1
l 25 number, but that's the -- that's a relative frequency.
l
[
1
.t l
l l
l
89 m'
1
/
-JUDGE COTTER:
That's at SONGS?
.bs THE WITNESS:
At SONGS, yes.
3 JUDGE FOREMAN:
And then --
4 JUDGE COTTER:
That's how many -- how many -- what 5
are we talking about, in numbers, in terms of SONGS' 6
employees and contractor employees?
7-THE WITNESS:
This is over a period of about 8'
40,000 tests.
9 JUDGE FOREMAN:
And then, of those on the -- on --
10 how many of those then went on to quantitation by GC, and 11 were shown to be positive?
In otner words, were confirmed.
12 Many?
13 THE WITNESS:
Are there rules about -- assuming
(.X 14 we're talking about marijuana still?
15 JUDGE FOREMAN:
Yes.
16 THE WITNESS:
Apply to this question?
Okay, thank 17 you.
18 Yes, they -- they -- nearly all.
I'm trying to 19 think of some exceptions to that, but nearly all the 20 marijuana screens, in the initial screen, were confirmed by 21 GCMS, to my recollection.
22 JUDGE FOREMAN.
And all of these people went 23 through that first -- the first phase, then, of counseling 24 by -- by Southern California Edison; the people for whom 25 these tests were positive and confirmed?
1
,^
90 1
THE WITNESS:
With regard to employees of the l
2 company, that is correct.
With regard to contractors, we 3
withdrew site access.
4 JUDGE FOREMAN:
Uh-huh.
And were those hundreds 5
of people then?
6 THE WITNESS:
Yes.
7 JUDGE FOREMAN:
And how many of them then went on 8
to have a second positive screen that was confirmed?
Many?
9 THE WITNESS:
I -- I perhaps misspoke.
There were 10 less than 100 employees that fell into that category.
The 11 remainder, which was the several hundred that I was agreeing 12 to, were contractors.
13 JUDGE FOREMAN:
Okay.
14 THE WITNESS:
So, to -- to answer, with regard to 15 the fewer than 100 employees over this five-year period of 16 time, how many of those who were reinstated, relapsed into a 17 second -- and were detected a second time?
Approximately 50 18 percent.
19 JUDGE FOREMAN' And then, the third time?
20 THE WITNESS:
Approximately 30 percent.
21 JUDGE FOREMAN:
And then, were there a number --
22 30 percent of the 50 percent?
23 THE WITNESS:
That's correct.
24 JUDGE FOREMAN:
And then there were a number of 25 them, then, that relapsed for a fourth time, and then were u_-_______.
91 E d'"N 1
dismissed from duty?-
2
-THE WITNESS:
I'm trying to remember if anyone 3
lasted that long without either resigning or being 4
terminated or -- or transferring, and none come to mind.
I 5
think, three is probably the maximum.
6 As -- as I think I testified earlier, there was a point where we switched from a four-strike rule to a three-8 strike rule, and we've been operating for that -- under 9
those ground rules for sometime, which means they'were 10 terminated on the third failure.
11 JUDGE FOREMAN:
So, you've had -- you've had
~
12 terminations before, under these circumstances, in the three 13 times positive marijuana urine tests?
~
/
14 THE WITNESS:
There may have been one or two 15 people who, while the four-strike rule was in effect, 16 achieved the fourth test, and were terminated.
I don't have 17 specific recall.
It would have been very few.
18 JUDGE FOREMAN:
And then what about when the new-19
-- the three time rule was in force?
Were there many people 20 terminated, or left the employment under those 21 circumstances?
22 THE WITNESS:
Yes.
23 JUDGE FOREMAN:
And you've had no problems because 1
24 of that?
Any so-called kickback or anything else like that?
25 THE WITNESS:
There were -- generally speaking, I
O(%
92
(
1 for represented employees, there were some grievances left l
l 2
behind that are -- would be working through the mill, but 3
those are of a relatively routine nature, with regard to any 4
explicit challenge.
Other than that, no.
No, the 5
terminati.rns were straightforward.
Many of them were 6
resignations.
7 JUDGE FOREMAN:
Okay, that's all I have.
8 JUDGE KLINE:
For a person is terminated under 9
this policy, and seeks employment elsewhere in the nuclear 10 industry, does the company pass -- if it's -- if references il are requested, does the company indicate the reason for a
,12 departure to the -- say, the requesting company?
13 THE WITNESS:
That policy is -- is currently in --
14 in change, as you may be aware.
10-CFR-26, which has, I l
15 understand, now been signed by the Commission, requires it, 16 and we had anticipated that rule by -- some time.
So, for 17 some time, we have been responding to requests of -- of that 18 nature,,but -- but prior to that, the only information we J
i 19 would reveal was that -- whether or not they were employed, and for how long.
So, it's a fairly recent phenomenon, 20 i
21 stimulated by the NRC's expectations.
22 JUDGE COTTER:
When you said 10-CFR --
23 THE WITNESS:
26.
1 24 JUDGE COTTER:
26.
Did you mean the new fitness 25 for duty rule?
{
1 I
l
93 A.
/
1 THE WITNESS:
Yes, I do.
\\
\\' - ~
2 JUDGE KLINE:
Do you -- do -- in your opinion, is 1
3 the company policy, as it existed in 1986, or today, 4
adequate in and of itself to prevent people from having 5
unescorted access where it's warranted, without additional
(
6 enforcement from NRC?
7 MR. MIKULKA:
Will you give me permission to 8
consult with him before he answers that question?
l 9
JUDGE KLINE:
Yes.
10 (pause.)
11 MR. MIKULKA:
We were both a little unclear on the 12
-- on the question.
Could you repeat the question again?
13 JUDGE KLINE:
Yes.
Is the company policy,' as --
,4 14 N._))
/
as -- either as it existed in 1986, or now -- is it
\\
15 sufficient in and of itself, to cause the removal from 16 unescorted access of persons who test positive, without any 17 additional enforcement or authority from NRC?
In other 18 words, is the company policy sufficient to cause the removal i
19 from unescorted access by itself?
You're not relying on any a
20 authority from NRC to do that, are you?
21 THE WITNESS:
The -- the answer is a complex 22 answer, but -- but let me say that removal from unescorted l
23 access, within ten minutes, which I think is a remarkable 24 feat, but with electronics, it's it's do-able -- was in 1
25 effect in September of 1984.
It's difficult to imagine how l
/3 b
94 l
1 increased regulation could have somehow speeded that up, orl
}
2
-- or made it more effective.
But, with regard to other 3
elements of -- of removal and consequences of removal, and
{
i
)
4 so on and so forth, as you're aware, since those times, we 5
have gone through a process of ever-increasing involvement 6
by the -- the NRC, with some staff reports, policy 7
statements, endorsement of the EEI guide, early drafts of 8
the rule, and now, finally, some -- a rule itself.
Whether 9
or not that rule is sufficient remains to be seen.
It 10 hasn't been implemented.
11 JUDGE KLINE:
I'm not asking whether the NRC rule 12 is sufficient.
What I'm asking is, whether you have 13 sufficient authority to act on your own, as a compa6y, to
(
\\
14 keep, quote, " unreliable people" from -- from holding
{
l 15 sensitive positions?
16 MR. MIKULKA:
Your Honor, do you mean by -- 1 17 guess, the ambiguity is "act on your own."
As Mr. Talley 18 indicated, yes, that the company can do it.
If you mean and 19 be lega.'ly sustained -- if that's the second part of your 20 question, that might be beyond him -- his ability to answer.
21 But I think that's really what we're -- Mr. Talley is 22 alluding to.
23 THE WITNESS:
Right.
24 MR. MIKULKA:
Whether or not we can be sustained 25 in the absence of the NRC --
9 l
l l
L_---_---_----
95'
'S..~.
1 JUDGE COTTER:
Would you settle'for the statement i
).
2
...if I understand what he's saying -- the 1984 policy was 3
-- was initiated by California Edison, and implemented by 4
California Edison, fundamentally based on its own corporate 5
responsibility and authority, without reliance on any 6
~ external authorities?
7 THE WITNESS:
That's -- that's correct.
8 JUDGE KLINE:
That's what I want to know.
9 JUDGE' FOREMAN:
I have a follow-up on that, and 10 also -- of the individuals that were -- that had four 11 positive tests before -- before the recent revision to the 12 three, were all of those, or did many of those have'their 13 license suspended, and not renewed?
/
f 14 MR. MIKULKA:
Your Honor, do you mean license
(
15 suspended by Southern California Edison or by --
16 JUDGE FOREMAN:
No.
By the NRC.
17 HR. MIKULKA:
If.you know.
18 THE WITNESS:
None, to my knowledge.
19 JUDGE FOREMAN:
So, those people that, say, 20 dropped out of employment after three times -- having 21 positive screens three times, those people still could have 22 a license and go on and work somewhere else?
23 MR. MIKULKA:
I'm going to -- at this point, I --
24 in all due respect, I don't know if Mr. Talley is qualified 25 to give the answer as to what would occur at some other v
i
96
(
1 facility, in regard to employing somebody who had a licenseq 2' at our facility, which -- who ultimately terminated, under 3
the circumstances you described.
4 JUDGE FOREMAN:
Well, I guess what I'm asking --
5 your point's well taken -- but what I really want to know 6
is, did the fact -- did the findings and the activities of 7
Southern California Edison lead to a license suspension of a
8 these people?
9 THE WITNESS:
May I correct a misconception that 10 somehow has snuck in here, and that is that these people 11 were licensed operators.
12 JUDGE FOREMAN:
Oh, I see.
13 THE WITNESS:
I didn't indicate that they were.
(
14 JUDGE FOREMAN:
Were there any licensed operatorsj j
15 to which that happened?
16 THE WITNESS:
There -- there were one or two.
17 JUDGE FOREMAN:
And they -- their license was 18 suspended and remained suspended?
19 THE WITNESS:
They're not currently licensed, and 20 they were not licensed at the time of the multiple failure.
21 JUDGE FOREMAN:
Okay.
Thank you.
22 THE WITNESS:
They haven't performed licensed 23 activity since then, and they do not now have a license.
24 JUDGE COTTER:
Do I understand, Mr. Talley, that 25
-- that you were the basic source of the formulation of this f
N
i 97 i'
.. '/O' 1
policy and program?--
2 THE WITNESS:
No, that's'not correct.
I'd like to 3~
say'that I'm the source of it, but in' fact,.that's untrue.
4 I was_ instrumental in assembling the -- from a variety of.
E sources -- but I was not an origina1Lsource myself, for.the 6
policy.
The law department, the medical department, and 7
others, had experts.that contributed to the policy, and it 8
was largely.those that were reflected in the policy that was 9
eventually issued.
10
. JUDGE. COTTER:
Let's say you were the general 11 contractor.
12 THE WITNESS:
I'll accept that.
13 JUDGE COTTER:
Do you know why the -- if -I e
h 14 understand correctly, during this period from' September'of
[d 15 1984, the announcement of the policy, up until the present, 16 the cutoff level was 50 nanograms per milliliter for a 17 positive screen on marijuana, is that correct?
18 THE WITNESS:
Yes,.that's -- that's generally 19 correct.
20 JUDGE COTTER:
And why -- it is also'my impression 21 that during that same period of time, or somewhere in there, 22 there -- a number of other sources used 100 nanograms per 23 liter -- I'm sorry -- per milliliter. Is that correct?
24 THE WITNESS:
That's correct.
25 JUDGE COTTER:
Could you name some of those?
Do I
1
/
98 1
you recall?
{
}
2 THE WITNESS:
I do not have a recall of the 3
specific companies who were utilizing 100 nanograms per 4
milliliter, but I can tell you that we surveyed not only our 5
industry, but others, at the time, and determined that 50 6
was -- was the most appropriate and defensible level --
7 cutoff level for THC.
8 JUDGE COTTER:
Well, that's the thrust of my 9
question.
Why did -- why -- if you know, was -- was 50 l
10 selected, rather than 100.
And in the back of my head, I 11 have some vague recollection that -- wholely aside from 12 subsequent developments, that during this period, the Social 13 Security Administration, or some other Government agency, 14 was using 100.
So, my question is, why did you pick 50?
{
l 15 THE WITNESS:
The medical department weighed very 16 strongly the possibility of a passive inhalation defense, 17 and determined that 50 was an appropriately low level, and 18 since our interest was not in determining if a person were 19 currently impaired, but whether or not they had had an 20 involvement with illegal drugs, either on or off' duty, we l
f 21 determined that 50 was the -- a prudent low -- prudently low i
22 level to establish that cutoff level.
j i
23 JUDGE COTTER:
If I understand your answer, you're
]
j 24 saying, if you set it at 50, you'll catch some people on a s
25 passive inhalation claim, as opposed to 100, where you would l
1 l
l I
t 4
99 i
)f~
1 not?
4 2
THE WITNESS:
What'I meant to say was that, as a-3 first priority, the' company wanted to detect any detectible 4
level of drugs in the system.
Since we couldn't go to zero, 5
for many of the reasons that I mentioned, such as a passive 6
inhalation claim, we decided that 50 was about as low as was 7
prudent to go, at the time, and since then, I think we have -
t 8
concluded that'that was a wise decision.
9 100 was not low enough, because it did not detect to low levels, and we were interested in any drug use.
11 JUDGE COTTER:
Also, if I understand correctly, 12 the withdrawal of the red badge, or access to protected 13 areas, is based on a finding that the individual is not
/
14 reliable, plus whatever other nouns you want to add to'that
('\\.
15 responsible -- whatever -- is that correct?
16 THE WITNESS:
That is correct.
If I -- if I may, 17 reg I5.62, when it eventually came out, the safeguards are 18 reggied, stipulated that failure of a urinalysis, not also 19 accompanied by any signs of impairment, was to be presumed 20 to be a significant safeguard event, indicating illegal 21 criminal activity off -- off duty.
And it was that same 22 rationale that is the basis for our withholding unescorted 23 access when we see a drug test failure.
24 I'm agreeing with you.
It was the trustworthiness 25 issue.
It was the indication that the person is involved l
6 t(
i f
c-__-____
a
100 I
1 witn illegal activities, j
}
2 JUDGE COTTER:
Don't agree with me.
I want -- I 3
want to find out what the -- I'm just trying to pin down 4
what you're doing.
5 THE WITNESS:
Yes.
That -- that is precisely the 6
rationale.
7 JUDGE COTTER:
But that is a much more difficult 8
and subjective finding than a finding that a certain -- that 9
a -- that a positive marijuana screen is grounds for 10 withdrawing the access, is it not?
11 THE WITNESS:
Indications of illegal off-duty, 12 criminal activity are universally a grounds for withholding 13 unescorted access, and this is such a piece of evidence, in
[
\\
14 our opinion.
l l
15 JUDGE COTTER:
Okay.
You've said that twice then.
16 Then, you're telling me that it's not the reliability --
17 reliability is not the basis for withdrawing access.
It's 18 an indication of illegal off-duty, criminal activity?
19 THE WITNESS:
The --
20 JUDGE COTTER:
Which is it?
21 THE WITNESS:
It is -- is -- I believe, both.
I 22 believe, for example, that -- that both reliability and a 23 judgment about criminal activity are a product of the 24 background investigation, for example.
A background 1
25 investigation which does reveal criminal activity tells us l
l l
101 1
something about the character of reliability and 2
trustworthiness of the individual, as well as whether or not 3
criminal activity was cor. ducted.
4 The same would be true for a drug -- positive drug 5
test.
I l
6 JUDGE COTTER:
Well, I guess we can revisit this 7
when we look at the -- at the report.
8 The -- the final finding; did I understand you to 9
say was made by the medical officer?
10 THE WITNESS:
Yes.
11 JUDGE COTTER:
And him alone, based on all the 12 information that has been collected up to that point?
13 THE WITNESS:
The --
14 MR. MIKULKA:
I'm sorry.
Before -- I just have an 15 ambiguity to clear up for Mr. Talley, and for myself.
When 16 you say "the final finding," do you mean the individual who 17 made the final determination to deny Mr. Acosta unescorted 18 access?
19 JUDGE COTTER:
Yes.
20 THE WITNESS:
I -- thank you.
I didn't 21 understand that.
No, that's not true.
22 JUDGE COTTER:
Okay.
Then, the medical -- the 23 medical officer makes the final finding of a positive use of 24 an illegal drug, is that what he does?
25 THE WITNESS:
The medical review officer really
102 I
l 1
enters in twice.
The first time for --
I I
2 JUDGE COTTER:
I'm talking about the last time.
I I
3 I'm not talking about when he sends it over.
4 THE WITNESS:
Okay, the last time.
In the 5
reinstatement process, the -- the medical review officer 6
reviews all of the psychological and medical reviews which 7
have taken piace up to that point, and forwards to us a 8
final medical recommendation.
9 JUDGE COTTER:
Who's us?
j 10 THE WITNESS:
Pardon ine?
11 JUDGE COTTER:
Who is us?
12 THE WITNESS:
Oh.
Site management.
13 JUDGE COTTER:
Who in site management?
14 THE WITNESS:
The -- the results from medical coq 15 to me, and the results of a review of things like 16 performance history and attendance history comes from the 17 division manager to me.
I compile these, and pass them to 18 the site manager.
19 JUDGE COTTER:
And then -- I interrupted you.
You 20 started to tell me what the medical officer forward'ed to you 21
-- the nature of the finding that he forwarded to you --
22 what is that?
23 THE WITNESS:
The -- yes, the medical review 1
24 officer is charged with the responsibility of making a final 25 recommendation, not only with regard to the physical health t
l l
k 1
l l
i i_ _._ _. -
)
y
-103-
-,I
') '-
of the. individual, but-also the -- the psychological-1 L/
2 evaluations which are contracted through our medical.
3-organization.
And so, they are consultants or specialists, 4
which he utilizes.- And he makes.a judgment on.those.
5 JUDGE COTTER:
He draws a conclusion from their 6
work product?
7 THE WITNESS:
That's correct.
8-JUDGE COTTER:
Have you had the same medical 9
officer for the last five years?
10 THE WITNESS:
No.
11 JUDGE COTTER:
When did it change?
12 THE. WITNESS:
I don't have a recollection of the 13 specific date, but perhaps a year or a year and a half ago, 14 the medical director was changed at San Onofre to a 15 different employee of the company.
Both were medical 16 doctors, and both employees of the company.
And there was a.
17
-- the medical department made a change about a year and a 18 half ago, I believe.
19 JUDGE COTTER:
Were they both psychiatrists?
20 THE WITNESS:
Neither were psychiatrists.
They 21 were both -- well, the first was a surgeon, and I'm -- I'm 22 unfamiliar with the specialty of the -- of the second.
l 23 JUDGE COTTER:
And then, ultimately, the site l
24 manager makes the decision on withdrawal of access, is that 25 correct?
l L
l w_____________
. _j
l 104 i
1 THE WITNESS:
That's correct.
The -- the final
{
}
2 decision with regard to the reinstatement of an individual:
{
l 3
that it is, in fact, safe to return this person to the j
4 protected area, rests with the site manager.
I 5
JUDGE COTTER:
I think that's all I have.
Thank 6
you very much.
I 7
Tl!E WITNESS:
You're welcome.
8 JUDGE COTTER:
Is there anything further of this 1
4 t
9 witness?
1 l
10 MS. MOORE:
Yes, Your Honor.
I have a question 11 based on some of the board questioning.
12 JUDGE COTTER:
Just one?
Proceed, Ms. Moore.
13 MS. MOORE:
Yes, just one.
Except, it could get k
14 to more than one.
We'll start with one.
{
}
15 REDIRECT EXAMINATION I
16 BY MS. MOORE; l
i 17 Q
Mr. Talley, you just testified that the medical
]
18 officer who forwards a determination of his opinion to your j
1 19 site manager is not a psychiatrist.
Could you tell me, does j
20 he'get input from people who are psychiatrists before he 1
21 makes his decision?
)
22 A
Yes.
1 23 MS. MOORE:
Thank you.
I have no further 24 questions.
I 25 MR. ROTHMAN:
Well, if I may, and with the board's
/
l I
I l
1 l
l I
~ - - _ - _ _ _ _ _ - _ _ - _ - _ - _ _ _ _ _.
f.
105 n
~.
1 permission.
2 RECROSS EXAMINATION 3
BY MR'.
ROTHMAN:
4 Q
In Mr. Acosta's case, do.you know whether the 5
physician who issued the final unfavorable report had 6.
information from a psychiatrist on which he based his l
7 unfavorable finding?
1 8
A I've been given to understand that that is -- that 9
that is correct.
10 Q
Who were you'given to understand that by?
11 A
By the medical review officer himself.
3 12 Q
And who is that?
13 A
Doctor Gold.
w)
-[V 14 0
Is he the person who issued th'e report'that's 15 going to'be produced?
16 A
Yes.
17 Q
Have you reviewed the background investigation 18 done on Mr. Acosta?
19 A
The detailed background investigation?
I 20 Q
Yes.
21 A
No.
j 22 Q
Have you reviewed any portion of -- well, let me 23 ask you this way, without going into that kind of detail.
24 Aside from this present drug use issue, do you have any I
25 information whatsoever that would indicate to you that Mr.
(G' 4
106 i
1 Acosta is unreliable, untrustworthy or that his judgment is 2
poor?
3 A
May I consult with --
4 Q
You don't need my permission to do that.
5 MR. MIKULKA:
Could you repeat the question, i
6 please?
I'm just not sure he's qualified.
I heard the 1
7 question.
I'm just not sure Mr. Talley, given his position, 8
is qualified to give that evaluation, since it's made by the i
9 site manager.
Could you repeat the question, please?
10 BY MR. ROTHMAN:
11 Q
Well, let me ask it to you this way.
You --
12 you've indicated here today that, in your opinion, the test 13 results on Mr. Acosta; that is, the drug test results, are
(
14 an indication to you and to the company, of his reliability,q g
15 his judgment and his trustworthiness, is that correct?
16 A
Yes, that's our policy.
- Yes, r
17 Q
Then, aside from the drug test results, the 18 involvement in this drug issue, do you have any other 19 information that reflects unfavorably on Mr. Acosta's 20 trustworthiness, judgment or reliability?
21 (Pause.)
~
22 A
At the time the determination was made, that the 23 individual would not have unescorted access resumed, there 24 was no other information, to my knowledge, that was 25 considered in that -- in that decision. I have no
107 1
information -- any additional information that would have 2
been relevant to that decision.
3 MR. ROTHMAN:
Thank you.
And, except in regard to 4
the report that's going to be produced, I have no further 5
questions.
6 JUDGE COTTER:
Let's go off the record for a 7
moment.
8 (Proceedings recessed briefly.)
9 JUDGE COTTER:
Back on the record.
10 We have agreed, off the record, that we will 11 finish-with Mr. Talley and the report which SCE has agreed 12 to produce, until 9:00 tomorrow morning.
13 In the interim, Ms. Moore has two witnesses she 14 would like to proceed with.
Ms. Moore?
15 MS. MOORE:
Your Honor, the next witness I would 16 like to call -- the staff calls Doctor Louis Jambor.
17 Whereupon, 18 LOUIS JAMBOR 19 having first been duly sworn, was called as a witness herein 20 and was examined and testified as follows:
21 DIRECT EXAMINATION 22 BY MS. MOORE:
23 Q
Doctor Jambor, would you please state your full 24 name, position and business address for the record?
25 A
My name is Louis Jambor.
My last name is spelled
108 1
J-A-M-B-O-R.
First name, L-O-U-I-S.
I'm the toxicology l
}
2 manager at SmithKline Science Laboratories in Van Nuys, 3
4 Q
Could you tell me how long you've held that 5
position?
6 A
I've been in that position for over seven years.
7 Q
And what are your duties and responsibilities?
8 A
I direct the overall quality of the laboratory, 9
insuring designing tests, insuring that the tests are 10 accurate, and to monitor those tests to assure their 11 accuracy.
12 Q
Could you tell -- summarize your background and 13 professional qualifications, please?
e
\\
14 A
I have a doctorate degree in analocal chemistry l
}
15 from Wayne State University in Detroit, Michigan.
I.have 16 been directing toxicology laboratories for the last 12 years.
The -- I'm licensed by the State of California as a 17 18 clinical toxicologist.
In other words, an individual who is 19 licensed by the State of California to direct a toxicology 20 laboratory.
21 Q
Doctor Jambor, I'm going to show you a document 22 which has been admitted into evidence as NRC Exhibit 2.
Are 23 you familiar with that document?
24 (Witness proffered document.)
25 A
Yes, I am.
l I
l Y_______-_______
109 w
I
-Q It is a report, is it not, which SmithKline issued L
2 in March of 1986?
~
3 A
That's correct.
4 Q
Could.you tell the board what' testing techniques 5
SmithKline~used to perform its drug test analysis?.
6 A
In the analysis of marijuana, we perfor.m a series 7
og tests.
All tests are -- all tests in drug detection have 8
to be a series of tests.
The initial screen is a SYVA in 9
.that method.
If that initial screen is positive, the test 10 is repeated on a separate' aliquot of urine.
In other words, 11 we go back to the original urine container, check any j
.12
-numbering or identification of that. urine container,'and' 13 repipe that from that container, and re-analyze the sample, 14 again using the SYVA emit method.
15 If both of those screens are positive --
16 JUDGE COTTER:
Would you spell SYVA for the 17 record?
18 THE WITNESS:
Oh, yes.
S-Y-V-A.
That's V as in
-l 19 Victor.
20 If both of those screens are positive, then it's I
21 confirmed by an alternative method that's scientifically j
22 distinct from the amino assay screen, which SYVA is an amino assay screen.
We use a method called high performance thin 23 i
l 24 layer chromatography to confirm the presence of 25 cannebanoids.
For Southern California Edison, also, (G
l l
110 t
s quantitation of the cannebanoid metabolites in the urine is 1
2 carried out by gas chromatography masspectrometry.
3 BY MS. MOORE:
4 Q
Doctor Jambor, what is your cutoff level for your 5
emit screens?
i 6
A Okay.
7 Q
Or was it -- let me rephrase that question.
8 What was the cutoff level that SmithKline used for 9
its emit screens in the particular report before you, that 10 is NRC Staff Exhibit 2?
11 A
At this poir' in time, we utilized a cutoff of 100 12 nanograms per mil. for marijuana, cannebanoids.
13 JUDGE COTTER:
That being at the time of-the March 14 6th, 1986 report?
15 THE WITNESS:
That's correct.
16 BY MS. MOORE:
17 Q
Did you have a cutoff level for your GM -- GCMS 18 test, as well?
19 A
The cutoff for the GCMS test, gas chromatography 20 masspectrometry, is ten nanograms per mil.
I'd like to also
~
21 add that nanograms per mil. and micrograms per liter are 22 identical.
23 Q
Could you describe the equipment you used to 24 perform your emit tests?
25 A
The initial screen is performed -- or, at this I
}
X' 111
,g.
(
1 time, the initial screen -- by "this time," I mean March'of Q ))
2 1986.
The initial screen was performed on the Kobass bio 3
analyzer, and the repeat screen was performed also on a 4
Kobass bio analyzer.
5 Q
Is there a level below which that equipment does 6
not identify metabolites in urine?
7 A
The instrumentation -- the reagents used are -- we 8
perform the tests with a series of calibrators.
In this 9
particular test, the calibrator utilized to determine a 10 positive level was a calibrator at 100 nanograms per mil.
11 In other words, if a urine sample has a concentration in it 12 of greater than 100 nanograms per mil., it'll register as a 13 positive test.
If it's less, it'll register as a negative
/
14 test.
()
15 JUDGE COTTERt When you say " mil.," you mean --
16 THE WITNES3:
Milliliter.
17 JUDGE COTTER:
Milliliter.
18 THE COURT:
Milliliter.
I'm sorry.
+
19 JUDGE KLINE:
I'm a little confused, too, because 20 we see some apparent quantitated numbers associated with 21 emit questions.
Why?
You are recording either present or 22 absent, apparently, at a cutoff of 100.
23 THE WITNESS:
I was referring to this particular 24 report for screening of cannebanoids.
I'm referring to this 25 particular report, screening for cannebanoids, marijuana.
I f^
i
112
(
1 BY MS. MOORE:
l 2
Q Could you explain why there is not a semi-3 quantitative or quantitative result for the emit test on 4
that report?
5 A
It was our policy at that time not to report those 6
semi-quantitative numbers.
l 7
JUDGE FOREMAN:
This is for which test?
I 8
didn't --
9 THE WITNESS:
This is for the screening test, the 10 screening and confirmation test for the -- and I'm not 11 referring to the quantitative test.
Obviously, the 12 quantitative test is -- we do use the quantitative number.
13 (Pause.)
(
14 BY MS. MOORE:
l 15 Q
I'd like to show you a report which is marked NRC 16 Exhibit 4.
Do you have that document before you?
17 (Witness proffered document.)
18 A
Yes, I do.
19 Q
That is also a SmithKline report, is it not?
20 A
That's correct.
21 Q
This report was done by SmithKline in May of 1988, 22 is that correct?
The report?
23 A
This sample was collected -- according to this --
i 24 in May of 1988.
It was analyzed in June of
'88.
25 Q
I'm sorry, I misspoke.
Did you use the same I
\\
R
~
1 113 l
1 i
e x.
l i
1 testing techniques for this report as you described for the j
Y~/'l J.
earlier report?
3 A
Yes, we did.
Very similar testing techniques.
4 The initial instrument was changed to an Olympus analyzer as 5
opposed to the Cobas vial.
6 The retest was performed on a Cobas vial.
7 JUDGE COTTER:
Would you spell the names of both 8
instruments, please?
9 THE WITNESS:
Yeah, Olympus is O-L-Y-M-P-U-S, and 10 Cobas is C-O-B-A-S.
11 JUDGE COTTER:
Thank you.
.12 BY MS. MOORE:
13 Q
And what cutoff level did you use in these im
(\\_ ')
14 analyses?
15 A
Fifty nanograms per mill.
16 Q
Could you explain why you have changed from 100 to i
17 50 nanograms as a cutoff level?
18 A
At the request of numerous clients, we went to a 19 50-nanogram-per-mill cutoff for marijuana.
It was -- it 20 also became our corporate policy to go to 50 nanograms per I
21 mill in cannabinoid screening.
s 22 Q
Both of the reports that I have just shown you are 23 copies of the reports which were communicated from 24 SmithKline to Southern California Edison, isn't that 25 correct?
r~N O
114 i
1 A
That is correct, yes.
l
}
i 2
(Pause.)
3 Q
And, Doctor Jambor, both of these reports 4
establish, do they not, that the tests involved in each 5
report were confirmed positive, is that correct, for 6
marijuana?
7 A
That is correct.
It --
8 MS. MOORE:
I have no further questions.
9 JUDGE COTTER:
Mr. Rothman?
10 CROSS EXAMINATION 11 BY MR. ROTHttAN-12 Q
Doctor Jambor, are you aware of the current 13 controversy in the toxicology industry over the generation 4$
14 of false positive reports by toxicology laboratories on dr4 l
15 testing?
16 MS. MOORE:
Objection, your Honor.
These 17 documents, the drug test results, have been stipulated into 18 evidence for truth of the matter stated.
Therefore, I 19 ' believe that that's an irrelevant question.
1 l
20 JUDGE COTTER:
Well, he can answer it anyway.
\\
21 THE WITNESS:
I am aware -- I hear things in the 22 lay press, yes.
23 BY MR. ROTHMAN:
24 Q
Do you have an opinion as to whether false 25 positive reports ever occur in drug testing by reputable 4
I
_h__
c-R l
115 7
's-<\\ '
1, toxicology laboratories?
/dj 2.
A
'I know that'these tests are correct.
The results.
3 of these tests are: correct, unquestionably.
4'
-Q
'Now, you tell me that you know that these' tests 5
are. correct.
6
'A
- yes, 7
Q Now, you know.that because you -- SmithKline 8
Laboratories got a vial containing a urine sample, correct?
9 A
That's correct.
10 Q
And SmithKline Laboratories took.a sample or an 11 aliquant from the urine sample it received and put it in a 12 series of machines and got some readouts, correct?
13 A
That's correct.
. ['
14 Q
Now, other than from what someone else told you,
\\~
.15 you don't know that that drug sample came from Mr. Acosta,.
16 do you?
17 MS. MOORE:
Objection, your Honor.
These tests 18 are now in evidence for the truth of the matter stated.
19 There was no question as to their accuracy.
It's 20 irrelevant.
2.1 JUDGE COTTER:
He can answer it.
22 THE WITNESS:
Strict chain of custody is 23 maintained on these samples.
24 BY MR. ROTHMAN:
25 Q
Well, I know that you've been told that, sir, but
/^
i
116 f
1 what I'm asking you is that, other than from what someone j 2
else told you, you don't know that these samples came from 3
Mr. Acosta, do you?
4 A
I know that these samples are well labeled with 5
the name of Mr. Acosta on those samples.
6 Q
You know that the vial that SmithKline received 7
had a label with Mr. Acosta's name on it, is that correct?
8 A
That's correct,.yes.
9 Q
Do they also contain a number --
10 A
Yes, they do.
11 Q
The vials that are received?
12 A
Yes, they do.
13 Q
Do the vials contain any other information?
k They contain a client and lab number that is -- q l
14 A
15 and a label -- that is placed on the container at the site
)
16 of collection.
i 17 Q
Which, in Mr. Acosta's case, would have been j
18 SONGS, correct?
1 I
19 A
That's correct.
20 Q
San Onofre Nuclear Generating Station.
21 A
Yes.
And the sole means of identifying the sample 22
-- for example, on this particular sample, the account 23 number is given and a lab number.
24 Q
What are you referring to now?
25 A
We'll refer to the March 6,
'86 report where the 1
I 117 o
,;~s t
)
sample is prelabeled with a client number and a-lab number 1
\\/
l 2
combination, J
3 Q
You're looking up at the top in the right-hand 4
portion where it says "Acosta, Maurice, G-5," and then a 5
number underneath that?
6 A
No, I'm looking at -- towards the left-hand -- the 7
top left-hand portion -- is an account number which is 8
91770002, lab number 60 -- and then in the middle of the 9
report, lab number 607020.
10 Q
Do those numbers appear on the label that is on 11 the actual urine sample itself?
12 A
That's correct, yes.
13 Q
And also the name "Acosta" appears on that label?
[
14 A
Yes.
U 15 Q
Is there any other information that appears on 16 that label generally?
17 A
No.
18 Q
And those numbers and the name are placed on that 19 label by some person on site; that is, at SONGS?
20 A
That's correct.
21 Q
How do the levels in terms of quantitative measure
~
22 compare between the gas chromatography and the emit tests?
23 In other words, why is there a difference in numbers between 24 them?
25 A
In the emit tests, measures total cannabinoid
i 118 i
i i
metabolites in urine or -- we call it total immunoreactive 2
metabolites in urine -- how it responds to the SYVA test.
3 in the gas chromatography mass spectrometry analysis, it's l
1 4
an analysis of one of those metabolites in urine, a single 5
metabolite in urine for a gas chromatography mass 6
spectrometry analysis.
7 So, all the various metabolites that are present 8
in the urine sample -- the SYVA method responds to a variety j
9 of those to give it total cannabinoids while the gas 10 chromatography mass spectrometry method gives a quantitation 11 of one of those metabolites.
12 JUDGE COTTER:
Is that one TCH?
13 THE WITNESS:
We call it carboxi TCH.
It's 14 abbreviated here as TCH-COOH.
15 JUDGE FOREMAN:
And is the ratio between the 16 single component to the total a constant among samples?
17 THE WITNESS:
No.
18 JUDGE COTTER:
So there's no necessary l
19 relationship, then, between the emit result and the gas 20 chromatography result.
21 THE WITNESS:
Except for the fact that the gas 22 chromatography result is lower.
23 JUDGE FOREMAN:
Yes.
24 BY MR. ROTHMAN:
25 Q
Why was the cutoff level of 10 nanograms per
n 1-?_
119
[mY
.1
' milliliter' selected with regard.to the GC results?
e K).
2 A
It's a reliably.obtained accurate level -- a level 3
.that we can consistently obtain accurate results at.
4 Q
Okay, now, in between 1986'and-1988, the level for 5
the -- the cutoff level for the emit screen was changed,- In l
-6 fact, it'was cut in half, correct?
7 A
That's correct.
8 Q
Was the cutoff level for the GC test changed?
9 A
No.
10 Q
That remained the same, correct?
11 A
That's correct.
12 (Pause.)
13 MR.'ROTHMAN:
With the Court's' permission and very fv
(
)
14 briefly, I'd like to hand the witness a document just to 15 clarify something.
16 I have a report generated by SmithKline dated 17.
3/6/86 which differs.in some important respects from the 18 report that's been introduced as NRC Staff Exhibit 2.
Maybe-19 the witness can clarify that and, if so, we can dispense 20 with this one.
With the Court's permission.
21 JUDGE COTTER:
Certainly.
22 BY MR. ROTHMAN:
23 Q
Let me hand you a two-page document, Doctor 24 Jambor, which is a report by SmithKline on a urine sample 25 taken from Mr. Acosta on March 6, 1986.
Can you review that
%d I
l I
-_a
120 1
briefly and compare it to Exhibit 2 and tell me why the two 2
differ?
3 (Witness proffered document.)
4 A
The -- on the report that was handed to me, it 5
appears to have been a report on 3/7/86.
The gas 6
chromatography mass spectrometry analysis had not been done 7
yet, I believe.
8 Q
Is the report that I handed you a report on the 9
same sample that had been taken from Mr. Acosta that was 10 reported on in Exhibit 2?
11 A
Yes.
12 Q
But that was a report on the first couple of 13 screens, before the gas chromatography results had been k
14 obtained, correct?
{
}
15 A
Yes, that's a report after three screens had been 16 done in our laboratory -- two initial screens of the SYVA 17 emit method and a confirmation method by high-performance 18 thin-layer chromatography.
I 19 Q
Are there any numbers generated to quantitize the l
20 results of the thin-layer chromatography method?
21 A
No.
I 22 Q
Is it the policy of SmithKline Labs not to I
1 23 generate those kinds of numbers?
24 A
At that time, yes.
25 Q
Has that policy changed?
l i
h l
l l
1
121
- fi 1
A
.The -
we will generate positive -- quantitative 2
numbers from the amino assay. screen at this time, semi-3 quantitative numbers from the amino assay screen.
4 Q
Do you know why that policy was changed?
5 A'
For better clarification of results.
6 Q
And when you say "for better clarification", is-7 that'because questions had arisen about the levels at which 8
the emit screens were showing positive on SmithKline 9
reports?
10 A
I think.it's more along the lines, just to provide 41 as much information as possible.
We're in a: service 12 bu'siness, trying'to provide as much information as possible 13
-- is the real reason.
14 JUDGE COTTER:
Counsel, may I see the document 15 that you just showed the witness?
16 MR. ROTHMAN:
Yes, sir.
Certainly.
-17 (Pause.)
18 JUDGE COTTER:
Where did this document come from, 19 Counsel?
20 MR. ROTHMAN:
I believe that document had been 21 previously sent to us in some discovery that we had 22 requested from the NRC.
23 JUDGE COTTER:
All right, so there's no question j
\\'
24 that we have the -- we have no disagreement over what is
{
25 Exhibit 2.
Is that correct?
4
)
1 I
f J
122
/
1 MR. ROTHMAN:
That's correct, your Honor, and I j
}
2 think it's been clarified to,me.
I don't intend to 3
introduce that.
4 JUDGE COTTER:
All right.
Just for the record, to 5
make it clear, as far as I can tell, in comparing the two 6
documents, aside from some differences in the text, Exhibit 7
2 has a series of identifying information in the center of 8
the top of the document under the SmithKline caption.
In 9
the fourth line down -- I'm sorry, the fifth line down, 10 which is labeled " reported" on Exhibit 2 -- is marked 11
"/26/86 09:13" and the document on which the witness was 12 being questioned -- slightly below the reported term is 13 marked "/07/86 13:10".
Just in case it turns up in'the
(
14 wrong place.
You may have it back, Counsel.
l
}
15 BY MR. ROTHMAN:
16 Q
Now, are you aware, Doctor Jambor, of the l
17 reliability of the emit system for detecting concentrations 18 of 9 carboxi TCH in the urine at a level of 50 nanograms per 19 milliliter?
20 A
Yes.
21 Q
What is the level of reliability of the emit 1
22 system in those circumstances?
23 A
It can readily detect drugs, cannabinoid 24 metabolites in urine at thosa -- at that concentration.
It 25 is a reliable assay.
i l
l
\\
123 1
Q Is the -- is the Journal of-American Medical 2
. Association a reliable and reputable professionalLjournal,
'3-in"your opinion?
4 A'
Yes, it is.
5 g
Are you familiar with either Doctor. Schwartz or 6
Doctor Hawkes who are both. practicing at the Children's' 7
Hospital at the National Medical Center in Washington,'D.C.?'
8-A What's Doctor Hawkes' first name?
9 Q
This is Doctor Richard L.
Hawkes.
. 10
.A Yes.
11 Q
Have you ever read an article by Doctor Hawkes and 12
. Doctor' Schwartz' entitled " Laboratory Detection of. Marijuana 13 Use"?
~
I 14 A
I very well may have, yes.
A 15 Q
Do you recall in anything that you read a 16
. discussion of the reliability of the. emit system in-17 detecting concentrations of marijuana in -- or marijuana 18 metabolites in urine at a level of 50 nanograms per
~
19 milliliter or less?
20 MS. MOORE:
Objection, your Honor, unless the 21 witness has the document before him -- I think that it would 22 not be prudent for us to continue these questions --
23 JUDGE COTTER:
Overruled.
He asked him if he 24 remembered.
25 THE WITNESS:
No, I don't remember.
I j
k
)
4 j
-_-____._m_
l l
\\
l 124
(
1 BY MR. ROTHMAN:
{
}
2 Q
But you're not here telling us that the 3
reliability of the emit system is 100 percent, are you, in 4
detecting marijuana metabolites at 50 nanograms per 1
5 milliliter or less?
6 A
Let me put it this way.
If there's 50 nanograms 7
per mil, exactly 50 nanograms per mil of total cannabinoid 8
metabolites in urine, in the marijuana test, in the 9
marijuana test or SYVA, it'll detect that at least 95 10 percent of the time.
If there is 50 there, it'll pick it up 11 95 percent of the time.
Those are the claims of.the SYVA 12 Company.
i3 Q
Now, aside from the information on the Sm'ithKline k.
14 test result reports which show the initial marijuana screens {
}
15 at positive on a given date, we don't know except by asking 16 you or by going to the company at what levels those emit j
l 17 screens -- at what quantitative levels those emit screens
)
1 18 show positive, do we?
I 19 MS. MOORE:
Objection, your Honor.
Just for
]
I 20 clarification, are we speaking of a given report?
)
)
21 MP. ROTHMAN:
Yeah.
What I'm really getting at
]
22 is, we have a report from SmithKline dated 3/6/86 which 23 shows screen positive.
This is NRC Exhibit 2, which you may 24 have before you.
l i
25 And then we have another SmithKline report dated i
l l
C
l 1
125 j
- (
l
"[ }
1 June 1st, 1988.
L\\_ /
i 2
BY MR.iROTHMAN:
1 1
3 0
Well,.let me ask'you a background question first.
t 4
On the --
5 JUDGE COTTER: 'That second report is Exhibit 4.
j q
6 MR. ROTHMAN:
Yes.
The second report is Exhibit, 7
4, the one dated June 1st, 1988.
8 BY MR. ROTHMAN:
9-Q Do you have that before, you, Doctor?
10 A
- yes, 11 Q
.The June 1st, 1988 report is a three-page -- that 12 is, Exhibit 4--- is a three-page report and, in the middle 13 of each page, there is a notation,. cannabinoid scre'en, semi-
[
14 quantitative level (EIA method).
Do you see that?
15 A
Yes.
16 Q
Is the EIA method the same as the emit?
17 A
Yes, that is correct.
18 Q
And, in 1988, I take it, that'SmithKline had 19 changed its policy and had decided to provide quantitative 20 levels for the EIA or emit screens, correct?
^
21 A
We did in this particular case, yes.
22-Q Did -- was that a standard procedure of SmithKline 23 at the time?
24 A
We did upon request.
Upon request, we did do 25 that O
136 1
Q So, is it your testimony that the appearance of 2
the quantitative levels for that screen upon this Exhibit 4 3
would have been because somebody requested those 4
quantitative numbers?
5 A
Yes.
6 Q
Do you know who that somebody was in this case?
7 A
No, not -- I can't recall.
8 Q
Who -- with regard to tests -- or tests that come 9
from SONGS, who is it ordinarily at SmithKline that the 10 request would be made to?
Is that you?
11 A
Yes.
Yes.
12 Q
Did you have a standard person who you were 13 regularly communicated with about SONGS drug tests?'
(
14 A
Yes.
15 Q
At this time; that is, in June of 1988?
16 A
Yes.
17 Q
Who was that person?
18 A
Lorna Piercy.
19 Q
I'm sorry?
20 A
Lorna Piercy.
21 JUDGE COTTER:
Could you spell the name, please, 22 Doctor?
23 THE WITNESS:
I believe the last name is spelled 24 P-I-E-R-C-Y.
25
//
t 4
i i
J
-127^
^
.i
/^)
1 BY MR. ROTHMAN:
- N-2
- Q-And you pronounce it Iearcy (phonetic)?
3 A-Piercy.
4 Q
Oh, Piercy.
But, as I understand what you said, 5
you have no recall of speaking with --
(=
6 A
That's correct.
But she's a person that I
~
7 communicate with.
8 Q
In'your experience in the field of toxicology,.you 9
are familiar, are you not, with the. concept of passive-10 inhalation of marijuana smoke?
11 A
Yes.
L 12 Q
Have you read studies on that area' or in that 13 area?'
~
-14 A
Yes.
15 Q
In your opinion, is an emit test which gives a 16 level of 50 micrograms per liter or nanograms per milliliter
.17 consistent or inconsistent with a claim of passive 18 inhalation?
19 MS. MOORE:
Objection, your Honor.
It's beyond 20 the scope of this witness's direct testimony.
21 JUDGE COTTER:
He can answer it.
22 (pause.)
24 8 __
j 25 ll o7<-k i
1 I
1 I
1
P.
128 w
i 1
BY MR. ROTHMAN:
{
}
2 Q
No, sir, that's not my question to yoa.
My 3
question is, if an emit screen gives you a result of 50 4
nanograms per milliliter, is that result in and of itself l
5 inconsistent with a claim that the metabolites were 6
generated by passive inhalation?
7 A
That question can't be answered without additional i
8 information.
It cannot be answered without additional 9
information.
to Q
What additional information would you need?
11 A
How dilute or concentrated the urine sample may 12 be.
13 Q
Anything else?
~
(
14 A
I don't think so.
j
}
15 Q
Now, what effect does the concentration of the 16 sample have on forming an opinion?
17 A
If it is a very dilute sample and it's a positive 18 result, there's no possibility that the positive can be due 19 to passive inhalation.
In fact, it is highly improbable i
20 that fou could get a positive at all at 50 nanograms per mil j
21 regardless of the concentration of the urine -- regardless 22 of the concentration of the urine but at -- with a dilute 23 urine sample, it's my opinion, it's impossible.
24 Q
Now, when you say " dilute urine sample", we're not 25 talking about having a sample submitted to you that was
[
1 l
l
4 -
-l 1
l-129 l
?,/~
I 1/
1 diluted by someone' pouring water in it orLsomething, are we?'
l
'\\_,l' l
2 Or are we?
{
3 A
No, we're'not.
We're talking about -- we're 4
talking about a sample that has a high.concentrationLof 5
water in it.
6 g-And what would that ordinarily'be.due to, aside 7
from someone adulterating it deliberately?
l 8
A Ingestions of fluids.
Ingestic."s of large amounts 9
of fluid.
10 Q'
Does SmithKline have a standard procedure for 11 determining the dilution of a urine sample that's submitted-12 for drug testing?
13 A
Yes.
~
14 Q
And would that determination appear anywhere on
\\
15 the reports that we have before us?
H3 A
No.
17 Q
Where would that determination appear, if at all?
18 A
In the records of-the analysis of this test.
19 Q
I take it that you're telling me, then,^that, with-20 regard to the SmithKline -- or to the NRC Exhibits 2 and 4 i
21 that we have before us, we have no way of telling what the 22 dilution levels of these samples that these tests were 23 performed on were.
Is that correct?
i 24 A
That's correct.
25 (pause.)
x
(_
i
I 130
(
1 Q
And so, in your opinion, the single most importantj g
2 factor in determining whether these tests reflected passive j
3 inhalation is absent, correct?
4 A
They're not on this report.
I 5
MR. ROTHMAN:
I have no further questions.
j i
6 JUDGE COTTER:
Any redirect, Ms. Moore?
)
1 7
MS. MOORE:
Yes, your Honor.
i 1
I 8
REDIRECT EXAMINATION 9
BY MS. MOORE:
10 Q
Doctor Jambor, you just testified, did you not, 11 that you -- or SmithKline routinely tests samples for
)
l 12 dilution, is that correct?
4 13 A
That's correct.
k 14 Q
In -- is your appearance here today, Doctor
{
}
15 Jambor, voluntary?
i 16 A
po, i
17 Q
You wcre summoned by subpoena, were you not?
l 18 A
That's correct.
i 19 Q
As part of that subpoena, you were requested, were 1
20 you not, to bring any and all documents related to these 21 specific reports, is that correct?
1 22 A
That's correct.
I 23 Q
In your review of these documents, were there any
\\
24 documer: 5 which did show your analysis of the dilution 25 factor of these samples?
l l
l 131
{'
i.A) :
1 A
Yes.
~,'j 2~
JUDGE COTTER:
Could you speak up a little, 3
please?
4 THE WITNESS:
Yes.
5 JUDGE COTTER:
We can hardly hear.
And the 6
questioner, too.
7 MS. MOORE:
I'm sorry.
8 BY MS. MOORE:
9 Q
Do you have those documents with you today?
KL A
Lyes.
11 Q
Would you produce those documents?
12 A
Yes.
13 Q
Would you first identify what kind of docDment I'
14 would set forth that result?
(
15' A
The results of a creatinine analysis -- well, 16 there's two things. -The result of a creatinine analysis of 17 this particular sample.
18 Q
Do you have a creatinine -- oh, I'm sorry.
Are 19 you finished with your answer?
20 A
There's another thing, one other thing, and that's 21 the -- on the original requisition, it is marked what the
)
22 specifam gravity is by the people at San Onofre.
That's the 23 only other information that I have.
Specific gravity also l
24 tells how dilute or concentrated a urine may be.
25 Q
With those two documents -- which are now in your l
l
[r j
132 f
1 possession, is that correct?
{
l 2
A Yes.
3 Q
What do those two documents tell you about the 4
dilution of the samples of June 1988?
5 A
They're not right in front of me right now but l
~
6 they are dilute urine samples.
7 Q
Do you have those documents in this room?
8 A
Yes.
9 Q
Would you get them, please?
q 10 A
Sure.
11 MS. MOORE:
Your Honor, may the witness be excused j
12 to get those documents?
13 JUDGE COTTER:
Yes.
1 k
(Pause.)
l l
14 j
15 MS. MOORE:
I'd like to suggest that counsel for l
l 16 the staff and counsel for Mr. Acosta both be able to look at j
i 17 these documents.
18 JUDGE COTTER:
Certainly.
Mr. Rothman, you've 1
19 been invited.
I 20 THE WITNESS:
This readout here, the bottom 21 line --
22 JUDGE COTTER:
Just a minute.
23 MS. MOORE:
Could we go off the record?
24 JUDGE COTTER:
Off the record.
25 (Discussion held off the record.)
I I
1 133
?
\\
f
.I JUDGE COTTER:
Back'on the record.
xj BY MS.. MOORE:
c l
3 Q
Doctor.Jambor, would you explain to us.from your report what creatinine levels were found by your analysis?
~4 5
A
.On the three. samples submitted, the creatinine-6 levels were 12, 14 and-11 milligrams per deciliter.
7 Q
And what does that indicate?
8 A
Creatinine levels of below 20 milligrams per 9
deciliter indicate extremely dilute urine samples.
10 Q
Do the documents you possess also indicate the-11 specific gravities of these three samples in-June 1988?-
12.-
A As written by.the people at San Onofre.
I didn't
~
13 perform those tests.
That's as indicated by the people at' 14 San Onofre only.
15 Q
Could you describe what tne level is on that 16 report?
17 A-On the requisition here, it's listed as 1.000 for 18 all three of the samples.
19 Q
And what is a normal specific gravity?
20 A
Most individuals have specific gravities greater
^
21 than 1.005.
Q The report on which you testified previously, I 22 23 believe, the report on which you analyzed the -- do the i
24 creatinine -- pardon me, but I'm not sure if I'm pronouncing 25 that correctly -- that analysis -- is a report generated by 0,
tV
134 1
SmithKline, that's correct, is it not?
{
j A
Yes.
Yes.
3 Q
Is that report generated in the usual and ordinary 4
course of your business?
5 A
Yes, the determination of creatinine is, yes.
6 Q
And is it your usual practice, is it not, to 7
create such reports?
{
8 A
Yes.
l 9
MS. MOORE:
Your Honor, at this time, I would l
10 offer -- I don't have -- I do not have the requisite number 1
11 of copies, but I would offer that document that Doctor.
12 Jambor has in his hand which he could -- if he would l
13 identify for the record, I would like to have it marked for k(
14 identification.
(
}
15 BY MS. MOORE:
l
)
1 16 Q
Would you please identify this document?
{
i 17 A
Sure.
This is a printout of our Olympus analyzer 18 that contains the creatinine results of this particular --
l 19 of the samples in question.
20 MS. MOORE:
I would like that marked --
i 21 JUDGE COTTER:
Mark the document, please.
i 22 MS. MOORE:
-- as NRC Exhibit 7.
I l
23 JUDGE COTTER:
Pass it up here, would you, please?
i 24 This is the vaguest document I think I've ever seen.
It's 25 marked at the top -- dated -- well, the first page of what f
L k
l 1
t
'135
'['
\\;
appears'to be Xerox -- is three Xerox pages of columns of 1
-%.J 2
. numbers.
The first page is labeled "page 24"'and the date 3
is January 6, 1988.
4 THE. WITNESS:
It's -- 1f I can --
~
5 JUDGE COTTER:
Or it could be June 1, 1988,-
j 6
depending on --
7 THE WITNESS:
It's June 1, 1988.
8 JUDGE COTTER:
-- which order you like your 9
numbers.
Operator Jenette.
And what'is it that ties this 10
-- there's an ID number -- how do you tie this to these 11 reports?
12 THE WITNESS:
That is a sequence number on there 13 that is tied to the lab number.
There's a sequence number
~
[%
/
}
in the left-hand column.
14
\\
15 JUDGE COTTER:
The second column?
The captioned 16 S.No.?
Is that the sequence number?
17 THE WITNESS:
I believe so, yes.
18 JUDGE COTTER:
And --
i 19 THE WITNESS:
And number 247, 248 and 249 are the 20 samples in question, here.,
21 JUDGE COTTER:
And how do you know that?
22 y,
THE WITNESS:
From our worksheets.
From our 23 worksheets.
24 JUDGE COTTER:
There's nothing in these exhibits
\\<
1 l
25
'that says anything about 247, 248 and 249, is there?
{
()
I I
i I
L_______.=_________
j
i i
136 j
l 1
THE WITNESS:
No.
2 (Pause.)
)
/
3 JUDGE COTTER:
Is this helpful?
j 4
MS. MOORE:
Well, your Honor, the witness has 5
already testified to its contents.
I would propose we just 1
6 mark it for identification.
7 JUDGE COTTER:
All right.
As long as we mark it 8
for identification --
9 MS. MOORE:
I don't intend to offer it into 10 evidence --
l 11 JUDGE COTTER:
-- as Staff Exhibit 7
~
12 (The document referred to was 13 marked for identification as 14 NRC Staff Exhibit No. 7.)
15 JUDGE FOREMAN:
Why were there three tests done on 16 three samples for the same -- for the same analysis?
17 THE WITNESS:
That's our standard policy.
If we i
18 have three samples submitted, we run three tests.
19 JUDGE FOREMAN:
But why were three samples 20 submitted?
Do you know?
Are always three samples r
21 submitted?
" i' 22 THE WITNESS:
No.
No.
The --
23 JUDGE FOREMAN:
Why, in this case, were three E4 samples submitted?
25 THE WITNESS:
I don't know -- I don't have direct
--_h___m
__.__m._u.
_m
__ma
.__a-m 4
137
^
t
/
j l knowledge of that.
I don't have direct knowledge of.that.
%--l (Puuse.)
+
3 JUDGE COTTER:
Is there anything further, Ms.
4
' Moore?
5 MS. MOORE:
I would just like to request on the
~
6 record that Doctor Jambor either make this available just so 7
that I could.make copies of this document -- do you have any 8
objection to that?
9 THE WITNESS:
I don't have any objection.
10 MS. MOORE:
Thank you.
I have one more question.
11 BY MS. MOORE:
12 Q
Doctor Jambor, counsel for Mr. Acosta showed yodLa 13 report dated 3/6/86.
Is it -- isn't it -- or is it' 14 SmithKline's usual practice to communicate reports of test 15 results, the emit and the TLC results to Southern California 16 Edison Company before the GCMS test is performed?
17 A
That's our policy, yes.
18 MS. MOORE:
Thank you.
I have no~further 19 questions.
20 JUDGE COTTER:
Mr. Rothman?
21 MR. ROTHMAN:
Well, let me just state for the 22 record that I don't want to be the bad guy in keeping 23 everybody here late, and I have some -- maybe not extensive, 24 but some questions for Doctor Jambor that are probably going 25 to take more than 10 or 15 minutes so, at the -- at the l
l
/ #\\
f(
138 1
Court's pleasure, I will defer to your decision about what
{
}
2 you want to do.
3 I think it highly unlikely.we'd get to the second 4
witness in any event.
5 JUDGE COTTER:
We'll go off the record for a 6
minute.
7 (Discussion held off the record.)
8 JUDGE COTTER:
Back on the record.
9 MS. MOORE:
I have no f.1rther questions.
10 RECROSS EXAMINATION i
11 BY MR. ROTHMAN:
12 Q
Doctor Jambor, before we go on to the exhibit 13 that's been marked for identification, Exhibit Number 7 14 which is your printout from the Olympus analyzer regarding l
}
15 the June 1st, 1988 series of tests or NRC Exhibit 4, let me 16 ask you, do you also have a printout from your analyzer with 17 regard to specific gravity or anything else on the 18 SmithKline test done in March of 1986 reflected in NRC 19 Exhibit Number 2?
20 A
No.
21 (Pause.)
22 Q
Now, the exhibit that's been marked for I
23 identification number 7 contains some numbers with relation f
24 to three samples that were submitted to SmithKline which are 25 coded on Exhibit 7, correct?
?
139
/~'.
i 2
Q The creatinine levels that are reflected on those 3
three samples are 12, 14 and 11.
Is that correct?
If my 4
memory serves me right.
5 A
Yes, if my memory serves me right, too.
6 Q
Which is a variation among the three samples of 7
some 35 to 40 percent in creatinine level, is that correct?
8 Somewhere in that neighborhood?
9 A
No.
10 Q
We go from 11 to 14.
That's a variation of, what, 11 30 to 40 percent, somewhere in there?
12 A
That's a variation of, at most, 20 percent.
13 Q
Well, 3 out of 10 is 33; 3 out of 11 is -- well, n
14 let's split the difference.
Let's say somewhere around 25 (N_))
15 percent, somewhere in there, whatever.
10 A
Okay.
17 Q
Can you explain why, if samples were submitted at 18 the same time and analyzed, there would give results varying 19 in creatinine levels somewhere around 25 percent?
20 A
If it's varying one or three units -- one to three
~
21 units in creatinine, that's a very small variation 22 analytically for that particular test.
23 Q
Are there any other conditions, aside from 24 dilution in the urine which would explain a low creatinine 25 level?
/N l
i
I l
140
)
1 A
There is a variety of situations that can cause
{
}
2 low creatinine in urine.
3 Q
What are some of those conditions?
4 A
I hate to testify on that due to the fact I'm not 5
a medical expert.
I'm an expert in the analysis of drugs in 6
urine.
l l
7 Q
Well, I understand, but you've testified that a 8
low creatinine level was an indication of dilution in urine, 9
correct?
10 A
That the urine contains a large proportion of 11 water.
12 Q
But it's not necessarily an indication of that, is
~
13 it?
14 A
Yes.
l l
15 Q
Well, aren't there other conditions, other 16 physiological conditions aside from a large percentage of l
17 water that can account for a low creatinine level in a urine 18 sample?
19 A
We're measuring creatinine per amount of fluid.
20 If the amount of fluid is great and the creatinine is small, 21 then I feel it's a high amount of water in that urine 22 solution.
I 23 Q
I see, so what you are measuring, then, is 24 relationship of creatinine to fluid, correct?
25 A
That's correct.
i i
p i
a 141-k V
IL Q
The variation between amount of creatinine to.
1' 2
fluid 'nd' amount of -- for instance, marijuana-metabolites a
'3
.to fluid, might not be the same, is that; correct?'
\\7 4
A There is -- the amount of saterialieliminated'is 5-. generally proportional to -- is generally proportional to-
~
- 6 the' amount'of creatinine in the urine 'cause it' tells me how h^
7 much the kidney is. eliminated.
.It's generally proportional.
1
~
-)
8 I would'not like to. testify'regarding,that due to i
1 9
the' fact that I'm not an expert as'far as medical -- medical 10
-understanding of the kidney function.
11 Q-So, as-I understand your testimony, then, you are-
'12 not testifying that variations in creatinine level iniurine 13 cannot be created by some other physiological condition, 7-%
4
}
other than!what_you characterize as dilution-of.the urine, i
14 15 is'that correct?-
16 A
Yeah, I couldn't testify, yeah.
17 Q
Now, with regard to the specific gravity of urine, 18 I know that in most-other tests you get a range that's 19 normal, even in creatinine levels, hematocrit levels, 20 whatever it might be.
What is the range of normal. specific
^
21-gravity for urine?
22 A
Generally, it's greater than 1.005 to 23 approximately 1.030.
24 (pause.)
25 Q
Now, a variation of.005 in the specific gravity
- v l
142
-l 1
of urine; that is, a difference from 1.000 to 1.005 -- is 2
that an indication to you of great dilution in the -- what 3
you call dilution in urine?
4 A
It's just -- it's not a tremendous difference, but 5
it just further indicates that it's lower.
6 Q
Oh, I forgot to ask you.
Do you have with you an 7
indication of the specific gravity of the samples that were 8
subritted for the tests in March of 1995?
9 A
Mo.
10 Q
Is there some reason you did not bring those i
11 documents?
I mean, other than maybe not understanding that 12 they were responsive to what was requested.
13 A
Oh, there's no documents.
I -- regarding' March of 14
'86?
15 Q
Yeah.
16 A
The tests, I don't believe, were performed.
17 Q
Let me make sure I understand.
On the March of,
i 18 1986 test, did your analyzer give you a printout which 19 indicated the creatinine levels of the samples submitted for 20 testing?
-}
21 A
No, l
i 22 Q
Was that because the Cobas analyzer did not have 23 that function?
24 A
That's right.
j l
25 Q
And why is it that the specific gravity was not 1
l 0
l w__-_.
t i
J 143'
,a"<
i
[
l' indicated on the label for that sample, as'it was'for'the
. Q/.
2 sample'in 1988?"
?-
A
.I don't know.
+
4
-Q Do you have a.worksheet.for the. samples, the March-5'
'86 sample?
t 6
A Yes.
7-Q Do you have that with you?
8 A
-Yes.
9' Q
Do you have it in front.of you?
.I iO
'A This is.-- where we got the specific gravity from?
' 11' Q
Yes, and on the '88 sample.
Do'you have one-for 12 the
'86. sample?
' 13 A
Yes.
Right here.
~
(
14 Q
Does it indicate specific. gravity?'
- 15 A
No.
16 Q
Do you know why?
17:
A No.
18 Q
So, if I.can just recap our -- what we have on the-19
'86 sample, we have. Exhibit Number 2 which reflects the test i
t i
20 results on which a screen.shows positive,-. indicating --
j 21 indicating that the emit screen shows positive, but we do 22 not-have any creatinine levels to indicate the dilution of 23 the urine, nor do we have any specific gravity indications 24 to show what the dilution was, correct?
E 25 A
That's correct.
L.
i 1
(.
144 (Pause.)
i I
1 2
Q Doctor -- Doctor Jambor, do you also have with you 3
in the paperwork that you brought the quantitative emit 4
results from Exhibit -- that would reflect the screens on 5
Exhibit 2 and Exhibit 4?
6 (pause.)
7 A
Well, we didn't do quantitative emit screens on 8
Exhibit 4.
9 Q
How about Exhibit 2?
10 A
We didn't do quantitative emit screens.
We didn't 11 do quantitative emit screens on 4.
12 Q
I'm sorry, say it again?
13 A
On -- I'm sorry, I misspoke myself there." On the 14 Exhibit 2, we did not produce -- we did not perform i
l 15 quantitative emit screens on the sample -- on Exhibit 2.
16 Q
Now, just so I understand it, the screen sbowed 17 positive on Exhibit 2 here, which was the March of '86 test 18 because you had calibrated your reagents to show positive at 19 a certain level, is that correct?
20 A
That's correct.
21 Q
And the level in 1986, the cutoff level in March 22 of 1986 was 100 nanograms per milliliter, is that correct?
23 A
That's correct.
24 Q
And the -- thus, the positive result would depend 25 on the accurate calibration of the reagents that were used
(
{
1 r
)
l l
i
[
145 1'
'to give that res' ult, correct?
2 A
That's correct.
3
.(pause.)
4 Q
' In 1986, Doctor, who.was responsible for-5 formulating the emit reagents that were used for the 6
SmithKline. drug tests?
7 MS. MOORE:
I'm~ going to. object on relevance 8
grounds.
The accuracy of these results has already been --
9 they're already in evidence for the truth of the matter 10 stated.
- 11 JUDGE COTTER:
I'm sorry, I didn't even hear the 12 question.
~
13 BY MR. ROTHMAN:
14 Q
The question was, who was it that formulated the 15 -
reagents?
16 A
The SYVA: Company.
The --
17 MS. MOORE:
Excuse me, there's an objection 18 pending.
19 THE WITNESS:
Oh, I'm sorry.
20 JUDGE COTTER:
I'll allow it for-what it's worth, 21 as they say.
22 BY MR. ROTHMAN:
~~
23 Q
It was the company that sent you the reagents?
24 A
Yes, the company.
25 Q
And the company sent you the reagents already l
l
1 146
?
1 calibrated to a certain level?
j g
2 A
They sent us calibrators -- calibrating material, 3
yes, with which to calibrate the assay, yes.
4 (Pause.)
5 JUDGE COTTER:
It would seem to me, Ms. Moore, 6
that these --
7 MR. ROTHMAN:
Your Honor, I -- I'm sorry.
I l
8 didn't mean to interrupt.
9 JUDGE COTTER:
Just a comment that it would seem 10 to me that these exhibits that have been admitted for the 11 truth of what they say -- and that is that that's what 12 SmithKline reported.
13 MR. ROTHMAN:
That's correct.
~
k 14 JUDGE COTTER:
That certainly doesn't prohibit any{
g 15 inquiry into whether or not what SmithKline reported might 16 or might not have been accurate.
Mr. Rothman, I interrupted 17 you.
What were you going to say?
18 BY MR. ROTHMAN:
19 Q
I wanted to find out basically how the sample j
20 numbers on Exhibit marked for identification Number 7 are j
21 calibrated to NRC Exhibit 4.
Is there any number that i
22 appears on Exhibit 4 that correlates to the numbers -- the 23 sample numbers on Exhibit 7?
24 A
As far as the sample identification number?
25 Q
Yes.
You indicated 273, 274 and so forth.
Do
{
I
147 1
h [ 'I those numbers appear anywhere on the -- on Exhibit'4?
1
\\_,/ :-
c A
Yes.
'3 Q
Where are those-numbers?
4 A
Oh, no.
These are the identifying numbers here.
.5 Q
When you say "these-are", what are you pointing 6
to?
7 A
The lab number in the center of the page.
8 Q
Okay, so on Exhibit 4, page 1, we have " lab number.
9 172322", correct?-
10 A
Right.
Correct.
Il Q
How'do you get from that number to the number that 12 you identified as the relevant samples on Exhibit 7?
13 A
From our worksheet that contains a cross-feference-14
[
to that number.
%)
15 Q
And those worksheets you also have before you?
16 A
Yes.
17 (pause.)
18 Q
Can I briefly just take a look at them?
19 (Pause.)
20 JUDGE COTTER:
We'll go off the record.
21 (Discussion held off the record.)
22 JUDGE COTTER:
Back on the record.
23 MR. ROTHMAN:
I have no further questions.
24 JUDGE COTTER:
Any redirect, Ms. Moore?
25 MS. MOORE:
No, I have no redirect.
O
_. _ _ - - _ _. - _. _. - - -. - _ - -... ~. _ - _ _
148 l
1 1
JUDGE COTTER:
Off the record.
{
g, l
2 (Discussion held off the record.)
3 JUDGE COTTER:
We'll go back on the record to 4
adjourn until tomorrow morning.
We're adjourned.
5 (Whereupon, at 6:00 p.m.,
the above-entitled 6
matter was adjourned, to reconvene the following day.)
7 8
9 10 11 12 13 k
14 J
g 15 16 17 18 19 20 21 22 23 24 l
2E 1
I I
I F
1 CERTIFICATION
,r (v) 2 This.is to certify that the attached proceedings before 3
the Nuclear Regulatory Commission
, in the matter of 4
(Mame of Proceedings)
Maurice P.
Costa, Jr.
5 (Date of Proceedings)
May 24, 1989 6
(Place of Proceedings) San Diego, California 7
were had as therein appears, and that this is the original 8
transcript thereof for the files of the Department or Commission 9
10 l
11 7
~
01'Jhh 12
/
't 6}'fICIAL REPORTER
/^N 13
/o) i 15 16 17 18 19 1
20 1
21 22 i
i 23
,eg 24 j
ik-)
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25 I
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