PY-CEI-NRR-0941, Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program.Util in Agreement W/Majority of Comments Submitted by NUMARC & Nuclear Util Backfitting & Reform Group

Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program.Util in Agreement W/Majority of Comments Submitted by NUMARC & Nuclear Util Backfitting & Reform Group

ML20206M708
Person / Time
Site:	Perry
Issue date:	11/18/1988
From:	Kaplan A CLEVELAND ELECTRIC ILLUMINATING CO.
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-53FR36795, RULE-PR-26 53FR36795-00339, 53FR36795-339, PY-CEI-NRR-0941, PY-CEI-NRR-941, NUDOCS 8812010266
Download: ML20206M708 (8)

Text

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PO BOX 97 e FERAY OMtO 44081 e TELEPHONE 1216i 2$9 3737 e AOCAESS.io CENTE A ACAD PER U LEA O N Al Kaplan November 18, 1988

[N$$. PY-CEI/NRR-0941 L Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D C 200555 Attention: Docketing and Service Branch Perry Nuclear Power Plant Docket No. 50-440 Proposed Fitness for Duty (FFD) Rule Gentlement The Cleveland Electric Illuminating Co. (CEI), agrees with the majority of the comments submitted by NUtiARC on the proposed Fitness for Duty Rule. CEI also suppcets the comments being submitted by the Nuclear Utility Backfitting and Reform Croup (NUBARG). Our specific comments on the proposed rule are attached and submitted for your consideration.

Our comments are divided into three attachments similar to the NUMARC submittal. In some cases, the CEI comment is in addition la or supplements NUMARC's comment and in some cases the CEI cocaent takes exception to the NDIARC comment. If there is no response. CEI is in total agreement with NUMARC.

Very truly yours.

[~ t stO< y Al Kaplan Vice President Nuclear Group Attachments AKinje 8812010266 PDR PR 001110 26 53FR3b795 PDR b5fC

Attachment A PY-CE!/NRR-0941 L CEI General Comments on the NRC's Proposed Rule on Fitness-for-Duty Programs i.

CEI agrees with the General Comments submitted by NUMARC vith the following exceptions:

i Each utility should be allowed to examine the re',Ats of its randon testing after one year at 104% of the population ( ) and make appropriate changes. If justified by this reviev, the utility should be able to reduce the testing rate to as lov as 25%. (See our specific comment to 26.24(a)(2) in Attachment B).

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Attachment B PY-CEI/NRR-0941 1.

Page 1 of 5 CEI SPECIFIC COMMENTS ON 10 CFR Part 26 26.2 (a) The provisions of the program should apply only to personnel having unescorted access to the protected area. The personnel responding to the Technical Support Center (TSC) or the Emergency Operatio..e Facility (EOF) predominately fall into the category of those people also requiring unescorted access to the protected area. In any event, the working situation in those two facilities is very tightly controlled and in an advisory capacity only.

Personnel working in the TSC and EOF do not have access to any safety related equipment. Therefore, it is recommended that those personnel not be addressed by the Rule. The af fected sentence in 26.2 (a) vould read, "The provisions of the fitness for duty program must apply to all persons granted unescorted '

access to protected areas." l It is recommended that the folloving clarifying sentence for the licensee's authority be added right after the above sentence, "The provisions also apply to others, who at the discretion of the licensee, are detarmined to have the ability to affect safe and reliable operation of the nuclear plant "

Additionally, to establish a uniform implementation time, the first sentence of 26.2 (a) should read "The regulations in this part apply to licensees authorized to operate a nuclear power reactor upon implementation of the physical security plan."

l 26.2 (b) It is recommended that this section be changed to allov 180 days for implementation of the Rule and 270 days for implementation of random testing ,

after publication of the final rule. The implementation vill require policy formulation, procedure rewriting, personnel training, budget revision, and ,

probably hiring of key security, personnel, and medical personnel. Randoa '

testing vill require finding certified laboratories and negotiating contracts with them. Certain equipment vill have to be purchased and facilities built I and/or modified. Records and reports and computer programs vill have to be I established. In many cases, union contracts may have to be changed or at the very least, union discussions undertaken. All these matters and others vill take more time than presently allotted by the Rule for thorough implementation l of the Rule and indoctrination of personnel to the new requirements. l l

26.10 (c) The vord "workplace" should be replaced by the word "vorkforce" to j place the emphasis on employees rather than an inanimate object with varying .

definitions. '

26.20 (b) Substitute the "licensee employees (contractors / vendors also to have their own programs)" for personnel in the first sentence to clarify that the requirement of the licensee to have assistance programs is for licensee  ;

employees only.  ;

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AttachCont B PY-CEI/NRR-0941 L Page 2 of 5 26.20 (c) Add a sentence to indicatu that the Department of Health and Human Services (DHHS) guidelines are to be used as the basis for the procedures only. The DHHS guidelines and the National Institute for Drug Abuse (NIDA) guidelines on which they are based provide excellent lastructions for insuring chain of custody and quality control. Hovever, the DHHS guideline cutoff levels and drug panel size should not be the standard for the Rule. In addition to not agreeing with the present panel size or cutoff limits, there is concern about the potential for the DHHS to chande these limits without the NRC's knovledge and/or approval. Explicitly stating the panel constituents and cutoff levels provides the NRC control in this fundamental aspect of the Rule.

26.21 (b) The second to last sentence or this section should be changed to read as follovsi "Refresher training must be completed on at least a biennial (every two years) basis. A record of the training shall be retained for a period of at least three years".

The changes reflect industry experience with respect to the practicalities of arrar:ging this training. A general overviev of the Company's drug policies is usually provided in Site Orientation booklet which the employee retains after the initial indoctrination training. This informational session meets the intent of the requirements stated in 26.21. Additionally, experience has shovn that annual trainint on this matter is excessive and, in most cases, biennial training vill suffice.

26.22 (a)(5) It is recommended that this subparagraph be changed to read, "Procedures for initiating corrective action," By deleting the phrase concerning counseling or treatment altogether, it leaves the appropriate action and the training thereof to the utility.

26.22 (b) It is recommended the subparagraph (b) be put in its own section concerning the training and responsibility of encorts. The plant har as a goal to reduce the number of escorts and the limited circumstances undur which they vill be used do not varrant extensive behavioral observation training.

Additionally, behavioral observation relys on detecting a change in behavior from that which the person usually displays. This, in turn, relys on a certain level of familiarity with the person being escorted which is generally not the case. Therefore, the training of escorts on behavioral observation appears to have little benefit.

26.23 Change the first sentence to read "All contractor personnel performing activities within the scope of this part for a license, with the exception of the Employee Assistance Program, must be subject to either..."

Clarifles that the licensee is not responsible for the contractors' EAP.

Attechacnt B PY-CEI/NRR-0941 L Page 3 of 5  !

26.24 (a) (2) It is recommenced that the annual testing rate be initiated at 104%, with replacements, which can be adjusted up or dovn by the utility after the first year based on the experience of that year. In no case should testing rate be less than 25%, with replacements. The population determination should be in two groups, lia.ensee employees and contractors, and should be recalculated on both groups monthly for the sake of determining hov many people to sample. Testing rates other than those included in the Rule provide e(fective means of deterrence and detection, primarily of deterrence. An annual testing rate of 104% or 2% each veek, with replacements, which provides  ;

a 67% probability of selection, has been shovn to deter 99 1/2% of individuals from abusing substances, while detecting 1/2 of 1%.

Random screening is a strong deterrent to drug use and its use is prcbably varranted because no other means has been identified that provides as meaningful a deterrent. It must be recognized that random screening is just '

one element of an overall program. Reasonable screening combined with routine physicals vould lessen the impact on employees.

The experience ot the utilities that have random testing programs vould indicate there is not a large drug culture among their employees as '

demonstrated by less than 1% positive drug test results. Many of these programs are successful using selection rates of between 20% and 40%.

26.24 (b) and (c) It is recommended the the DHHS guidelines not be referred l to for drug panel size, constituents, or cutoff levels. Rather the panel j size, censtituents, and cutoff levels should be . stated in the NRC's Rule.

Thereforo, the first sentence of 26.24 (b) should have the following phrase added, "far collection procedures, chain of custody methodologies, and  :

laboratory qualification." The rest of (b) should be deleted and the  !

requirtments actually stated with respect to panel size, constituents, and  ;

cutoff levels. Othervise the utilities who impose different drugs to be analyzed and/or lover cutoff levels vill be challenged in court as not being .

in compliance with a specified hderal guideline. However, the following '

drugs should be included in the panel in addition to those already listed in the DHHS guidelines .

methadone 0.3 meg /ml barbiturate 0.3 to 3.0 meg /ml

• benzodiazepine 0.3 to 3.0 meg /ml

• propoxyphene 0.3 meg /ml

• Determine limit in a given specium vill vary within the ' sited range and vill depend on which class member and/or metabolites are present.  ;

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Attachant B PY-CEI/NRR-0941 L Page 4 of 5 Additionally, the cutoff level for THC should be 50 ngm/ml based on various studies, expert reviews, and on sampling sensitivity.

Also, alcohol should be added to the panel and the limit should be 0.04 Blood Alcohol Content (BAC). The inclusion of alcohol and the limit reflect the i

present policy of CEI and is based on the American Medical Association standard.

26.25 It is recommended that the last sentence of 26.25 be deleted in its

! entirety. EAP staff shall inform licensee of all instances of hazard, not just for self-referrals. If this latter point needs to be delineated, then an additional sentence of explanation is necessary.

! It is also recommended that a statement be added to this section explicitly

{ stating that the EAP obligations of the licensee apply only to employees of the licensee and not to contractors. Additionally, it should be stated thtt rehabilitation does not guarantee restoration of protected area access.

26.27 (a) CEI agrees that denial of unescorted access should be tracked by utilities and made available to other utilities in the pursuit of legitimate access authorization inquiries. Means such as INDEX (Integrated Nuclear Data Exchange) should be authorized as an acceptable vehicle for data sharing.

26.27 (b) Beginning vith (b) Each licensee subject to this part shall...

1 i The phrase "eefore consideration of reinstatement" should be added to the last sentence of 26.27 (b)(1) to emphasize that the involved person may not be

] allowed to retu'.n to employment much less his former position.

Beginning with - (2) The individual may not be......

t Delete "granted": Add "considered for": delete "assigned to".

1 Should read - The individual may not be considered for unescorted access to J protected areas or activities within the scope of this part for a minimum of l

five years from the date of removal.

J All of the above chan ges and those recommended by NUMARC are intended to clarify that reinstatement of protected area access to someone previously involved with drugs is not automatic but at the discretion of utility

, management.

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It should be made clear that a utility has no responsibility to reconsider an individual for re-employment or for unescorted access after the specified 3 year or 5 year removal periods. T~e n expectation is that by specifying these periods there vill be false hope that the individual vill automatically have another job opportunity in the nuclear pover industry.

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) PY-CEI/NRR-0941 L j Page 5 of 5 l

j j It should be made clear that during the time of the "suitable inquiry" to j dete6mine if an applicant has any drug involvement in his personal history, j that the temporary access authorization is available to the licensee.

l 26.28 Beginning with

, "Each licensee subject to this part shall..."

l Delete "and contractor / vendor employees": delete "could" l

q Licensees should not maintain an appeal process for contractors.

i q Beginr.ing with "Vhere applicablev grievance reviev..."

Delete the word "vill": add "may" The Rule should not dilute what licensee has negotiated with its employees.

1 At the end of that paragraph - add "This may also include an existing internal l grievance or appeal procedure for licensee personnel not covered by collective l bargaining agreements."

Also, delete "whether or not the administrator action taken is a grievable j action under the contract."

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This clarifies that licensee's without collective bargaining agreements may utilize their internal grievance mechanisms so long as they meet appropriate l standards."

In addition CEI recoamends that the second sentence of 26.28 stop after the vord "raspond" and the rest of the sentence be deleted.

I 26.29 (a) It is recommended that 26.29 (a) be changed by deleting in the second sentenet "...until the commission terminates each licensee for which the system vas developed" and the phrase "...for five (5) years." be put in its place. It is also recommended the following sentence be added to the end of 26.29 (a). "Only records of positive test results are required to be kept."

The changes clarify the requirements.

CEI disagrees with NUMARC's discussion on random testing in response to the

' questions on page 36796 and 36797 of the Federal Register. CEI believes strongly that randon testing is a proven deterrent and the NRC should not soften its requirement in the Rule. Similarly, CEI believes that alcohol should be - satt of this Rule and, for the most part, treated like the other drugs.

Attcchment C PY-CEI/NRR-0941 L CEI's Responses to Questions Posed in '.he Dircussion Section and Appendix of the Proposed Rule C

I. Discussion Questions The NRC requetted comme.its from "knowledgeable persons on the scientific and technical basis of the proposed rule..." Ten specifie questions vere listed on pages 36796 and 36797 of the Federal Register and CEI has the following response to those questions:

Discussion Questions 1, 2, 3, 6, 7, 8, 9, and 10 i i

CEI agrees with the NUMARC response as written.

Discussion Question 4 CEI agrees with the tCHARC response except the panel should be expanded as stated in the CEI response on section 26.24 (b) and (c).

Discussion Question b CEI does not agree with the proposed access denial based on tha initial screening test if screening is done on site. The potential for an unacceptably high rate of false positives and its impact on the l

. individuals involved causes us to reject this NUMARC comment.

Notification of key station management personnel is appropriate.

d II. Appendix Cuestions l

CEI artees with the NUMARC comments on the Appendix Questions.

III. Application of Backfit Rule CEI agrees with the NUMARC comment on the Draft Bockfit Analysis.

Ve are also ir agreement with the comments provided by the Nuclear  !

Utility Backfitting and Reform Group (NUBARG) which address the issues of i documented backfit analysis pursuant to 10CFR50.109(1)(3) and exemptions under 10CFR50.109(a)(4)(11). This proposed regulation should be evaluatect against the cost-bonefit test of backfit and is not in our opinion required to ensure an "adequate level of protection" for operation of licensed commercisl facilities.