View source for JPN-88-063, Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program.Util Has Constitutional Concerns Re Proposed Random Testing Which Should Be Fully Addressed Prior to Rule Being Promulgated.Endorses NUMARC & EEI Comments

{{Adams
| number = ML20206M811
| issue date = 11/18/1988
| title = Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program.Util Has Constitutional Concerns Re Proposed Random Testing Which Should Be Fully Addressed Prior to Rule Being Promulgated.Endorses NUMARC & EEI Comments
| author name = Brons J
| author affiliation = POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
| addressee name = 
| addressee affiliation = NRC OFFICE OF THE SECRETARY (SECY)
| docket = 05000000, 05000286, 05000333
| license number = 
| contact person = 
| case reference number = FRN-53FR36795, RULE-PR-26
| document report number = 53FR36795-00359, 53FR36795-359, IPN-88-050, IPN-88-50, JPN-88-063, JPN-88-63, NUDOCS 8812010423
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, PUBLIC COMMENTS ON PROPOSED RULES &amp; PETITIONS FOR
| page count = 12
}}

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JTN-88-063 Secretary of the Commission ATTN:    Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, D.C.      20555

==SUBJECT:==
Indian Point 3 Nuclear Power Plant Docket No. 50-286 James A. Fit zPat rick Nuclear Power Plant Docket No. 50-333 NRC Procosed Rule for a Fitness-for-Duty Procram

==Dear Sir:==

On Septenber 22, 1988, the NRC published in the Federal Register for comment a proposed rule for the inplementation of a fitness-for-duty program.         The objective of this program is to provide reasonable assurance that nuclear power plant personnel are not under the influence of any substance, legal or illegal, which in any way adversely affects their ability to saf ely and compet ent ly perf orm t heir duties.            The purpose of this letter is to endorse the comments submitted by the Nuclear Management and Resources Council (NUMARC) and the Edison Electric Institute (EEI), and to provide additional comrmnt s.
The Authority does not endorse comments of other industry groups whose conments are inconsistent with those submitted by NUMARC and EEI. Attachment I contains the Authority's comments for the NRC's consideration.
The Authority has constitutional concerns with regard to the proposed rule.      While the Authority is in favor of the objectives of the proposed rule, there are constitutional issues related to the proposed random testing which should be f ully addressed prior to this rule being promulgated. The Aut hority endo 'ses NUMARC's connent that the NRC, under the Atomic Energy Act, has exclusive jurisdiction over the radiological safety aspects of commercial nuclear power plants, and, as such, its regulations in this area preempt inconsistent state or local laws or regulations, OBl U gas;ogoA23         pp tre ssenes>es c>                   .

e                                                                                                                                                                                                                                  ;
l Should you or your stalf have any questions regarding this                                                                                                                                                              '
matter, please contact Messrs. P. Kokolakis or J. A. Gray, Jr.
of my staff.                                                                                                                                                                                                                   !
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{ \ ery t 7ruly yours, l
                                                                                                                                                                                                                             }
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                                                                                                                                                                                                                           \   g;L
                                                                                                                                                                                                                        /', John C.
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Brons f
                                                                                                                                                                                                                     ,f      hxecutive Vice President   '
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                                                                                                                                                                                                                     \;j uclear    Generation Enclosures i
I cc: Resident Inspector's Office Indian Point Unit 3                                                                                                                                                                                                    [*
U.S. Nuclear negulatory Commission P.O. Box 337                                                                                                                                                                                                           f Buchanan, NY 10511
                                                                                                                                                                                                                                                      /
Joseph D. Neighbors, Sr. Proj. Mgr.                                                                                                                                                                                     .
Projet Directorate I-l                                                                                                                                                                                                 j Division of Reactor Projects - I/II                                                                                                                                                                                    -
U.S. Nuclear Regulatory Commission                                                                                                                                                                                      4 Mail Stop 1432                                                                                                                                                                                                          i Washington, D.C.                                                                                                                                                        20555                                          l l
Resident Inspectors Office U.S.                                 Nuclear Regulatory Commission 475 Allendole Road King of Prussia, PA                                                                                                                                                       19406 Office of the Resident !nspector                                                                                                                                                                                      [
U. S. Nuclear                                                                                                                             Regulatory Commission                                                        !
P. O. Box 136 Lyc or. ( ng , New York                                                                                                                                                    13093 l t Mr. David E. lab 3rge Project Directorate I-1                                                                                                                                                                                               [
Division of Reactor Projects - I/II                                                                                                                                                                                    {
U.S. Nuclear Regulatory Commission                                                                                                                                                                                     ,
Mail Stop 14 D2                                                                                                                                                                                                       !
Washington, DC                                                                                                                                                                                                         !
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ATTACHMEt1T I TO IPN-88-050                       i J PN- 8 8 -063 l
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3                                                                      COMME!1TS O!! THE PROPOSED RUrE                                 s REGARDIllG FITNESS-FOR-DUTY l                                                                                                                                                          j
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NEW YORK POWER AUTHORITY INDIA!1 POI!1T 3 NUCLEAR POWER PLANT DOCKET NO. 50-286 JAMES A. FITZPATRICK NUCLEAR POWER PLANT DOCKET NO. 50-333
: 1. Pace 36823. third column. 4 26.2(b):                             .
r The proposed rule provides a 180 .ay period after          !
publication of final rule for the implementation of              ;
random drug testing and a 90 day period for the implementation of the other requirements of Part 26.             t In light of the administrative procedures required for the implementation of a Fitness for Duty program, a              i 180 day implementation period is appropriate for all             i requirements of Part 26.
t
: 2. Pace 36824. second_ column. 4 26.10(a):                          -
This section provides that a fitness-for-duty program will provide assurance that nuclear power                 f plant personnel are not impaired. The Authority                   c l
t believes that this section should be revised to                    I reflect the fact that such programs also provide                  [
t assurance that nuclear power plant personnel are reliable and trustworthy. As in the case of access             '
i authorization, reliability and trustworthiness of individuals granted unescorted access is crucial.                  i 3.
Pace 36824. third column. 4 26.20fal:                             I The proposed rule requires tPat the licensee's fitness-for-duty policy address other factors that could affect fitness for duty such as mental stress,               }
fatigue and illness. This requirement is very general          i and as such difficult to implement. The discussion of              t
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the proposed rule did not provide any guidance on the
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incorporation of these factors into a fitness-for-duty program.
However, the NRC has previously recognized the ef fect of fatigue on fitness for duty in NUREG-0737, item I.A.1.3. In response to item I.A.1.3, licensees have included limitations on overtime worked by operating personnel, in the Technical Specifications.
The Authority believes that cutoff levels for i
mental stress and illness are not amenable to definition and measurement. The effects of mental stress and illness are best addressed on a case-by-case basis via a behavioral observation program.
4.
Pace 36825. first column. 4 26.22(5)(ci:
The proposed rule provides that managers and supervisors shall be initially trained in behavioral observation techniques within 3 months of initial supervisory assignment and provided with refresher tru.ning on an unnucl basis.
Cince the uain component of drug uso deterrence is posed by random drug testing and not by a behavioral observation program, the deterrence effect will have already been instilled at the time of an initie. supervisory assignment occurring after random drug testing implementation.                                           As such, there is not an imperative need for initial training within 3 months of initial supervisory assignment. In light of the
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additional responsibilities assumed at the beginning of a supervisory assignment and the concomitant time constraints, a 6 month time period is more appropriate.                                           Similarly, refresher training on a 2 year basis is more appropriate.
: 5.        Pace 36825. first column. 4 26.23 The proposed rule provides that contractor personnel are to be subject to the licensee's fitness-for-duty program or to a program adopted by the contractor, which satisfies the standards of 10 CFR Part 26.                             The Authority believes that this provision should be revised to allow licensees to require a                                                                                                    <
contractor to implement its own program.
If the licensee includes contractor personnel within its program, the Authority believen that the cyclic and transitory nature of the contractor                                                                                                        t population at a site justifies the establishment of
]                                               sepa. azo parconnel pool.' for the random testing of licenseo and e:ntiuctor personnel. As the total population subject to the program increases, the                                                                                                      1 number of random samples taken must be proportionally increased to insure compliance with the required                                                                                                      i annual random test rate. The segregated scheme would prevent the possible continued testing of licensee
]                                               personnel at an inflated rate, after the contractor
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personnel have left the site.

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Furthermore, the inclusion of contractor personnel under the licensee's program should not        '
establish rights of or benefits to contractors or        '
j                                                                                 contractor personnel that they do not otherwise have     '
4 3                                                                                 by law or contract, i
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: 6. Paoe 36825. second column, 4 26.24(a)(2):
The proposed rules provide two alternatives for    !
the scope of random testing. Alternative A requires the annual testing of at least 90% of the individuals j                                                                                within the scope of the rule.                             !
Alternative B requires  i 4
a 300% annual testing rate. The testing rates required by either alternativo are unreasonabis. The j                                                                                justification for random testing emphasizes the deterrent effect posed by such testing. An annual testing rate on the order of 25% would produce an acceptable level of deterrence.
i Given the number of nuclear plant employees and the proposed cesting rate 1. :ho Authority is concerned l
}                                                                                that there is insufficicat cert 1'ied laboratory
 ]                                                                               capacity for the required tacting. The fitness-for-duty rule should not be finalized until there is assurance that certified laboratories can handle the
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1 demand for their services.
Random testing may pose a significant problem for 1
]                                                                                the Authority for another reason. As a public entity, 1
j                                                                                it is subject to the restrictions of the 4th i
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1_ .   . _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . - _ . _ . .                                                             _-

Amendment to the U.S. Constitution. In Patchocue -
Medford Conoress of Teachers v. Board of Education,  70 N.Y.2d 57, 510 N.E.2d 325, 517 N.Y.S.2d 45G, the New York Court of Appeals has held that absent individualized suspicion, a search of a public employee (i.e., a drug screen of bodily fluids) is unreasonable and thus violative of the 4th Amendment.
However, the Court expressed a willingness to uphold an exception to this general proscription on specific,
 ,           narrow grounds. Thus random searches without t
reasonable suspicion would be permitted only when the l
privacy interests implicated are minimal, the government's interest is substantial and safeguards are provided to insure that the individual's i
reesonable expectation of privacy is nel subjected to j
unregulated discretion. As evidence of thia willingness the Court recently urnold tne New York 3
City Police Department's random druc testir? "regrar for memoors of the elite Organized Crime Control Bitreau. Ca ruso v. Ward,        N.Y.2d       (1988).
Whether the random testing provision of the proposed fitnets-for-duty program can withstand constitutional challenge in the New York courts is debatable, c
Currently, the question of non-random searches in connection with drug ccreens by public employers is before the U.S. Supreme Court. Untional Treasurv

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l Emoloyees Union v. Von Raab, 816 F.2d 170 (5th Cir.     !
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1987), cert. cranted 108 S.Ct. 1082 (1983). Burnlev v.
Bailway Labor Executives' Association, 839 F.2d 575      s I
(9th Cir. 1988), cert. granted 108 S.Ct. 2033 (1988).
While random searches are not before the Court,   a 1
decision holding non-random searches to be               '
unconstitutional would certainly doom a random search    !
scheme.
While the Authority strongly supports the          !
l l                                                                        t proposed random testing scheme, we believe it would be
                                                                        ]
prudent to clarify the rule so as to mitigate any        !
l future constitutional challenges. Through the Atomic     !
[
Energy Act, the NRC has exclusive jurisdiction of the    !
radiological safety aspects of the construction and      f r
l               operation of commercial nuclear power plants. The        I i                                                                        i proposed rule should be revised to indicate the NRC's
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regulations in this area pre-empt inconsistant ctato     i
,1'             or local laws or regulations.
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: 7. Pace 36825, second column, . 76.23.*oi                   I
(                     The proposed rule provides that licensees, at      i 1
their discretion, may implement programs with lower t
cutoff levels than those provided by the HHS             l Guidelines. The Authority believes that while more i
j stringent standards for those drugs explicitly           t specified in the rule, may be desirable, the adopted standards should be uniform scross the nuclear l
l industry. Uniformity is necessary to preclude i
t inequitable hiring and dismissal practices.
For example, i 26.27 requires a licensee to ascertain whether a prospective employas had, in the l
past, tested positive for illegal drugs. With non-l uniform standards it is possible that an individual who tested positive under a more string,ent standard may be denied employment at a utility, under whose program his tested level would not constitute a positive test. This would almost certainly result in additional legal challenges to random testing.
The proposed rule also provides for the testing
!                                                                          of drugs not explicitly specified in the rule, which may be prevalent in a geographic locale. As the use of such drugs would be limited to a geographic locale, the aforementioned rationale for uniform industry-wide standards would not be applicable to tna tasting for these drugs.
8.
Pace 36826. second colunn. ( 26.27(b)(2):
The proposed rule provides that upon a second confirned positive test, the individual will bo denied unescorted access to protected areas for a minimum of 3 years.
In New York, evidence of prior drug or alcohol dependency is not sufficient to deny employment or foreclose employment opportunities. If such a person

I has been rehabilitated or if cuch person can reasonably perforn his job, denial based on past usage can support an allegation of disability discrimination. However, the proposed rule should pre-empt New York law in this area.               Through the            !
Atomic Energy Act, the NRC has exclusive jurisdiction over the radiological safety aspects of the construction and operation of cemmercial nuclear power plants.           As previously mentioned, the proposed rule should be revised to indicate that the NRC's regulations in this area pre-empt inconsistent state or local laws or regulations.
: 9.                                  Pace 36825, third column, 4 26.29:                                            ,
The justification for random testing is
}                                                                                  predicated largaly on the deterrence effect such                                l
{                                                                                  testing will have on drug use. The NRC diccussion (page 36810) of the datorronco poced by rand:a drug testing notes chat ucserronca ia -a ce_7 to che                                  <
3 perceived probability of dotcccica, snich lu, in turn,                            -
related to the "publicity" given positive findingn and i
sanctions imposed.                     However, such "publicity" would ae prohibited by 5 26.29 Which provides for the                                        !
protection of personal information on an employee                                   I obtained via the fitness-for-duty program. The NRC should revise the discussion of the deterrence effect
 ,                                                                           of random testing to be consistent with 5 .'6.29.                                     !
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: 10.             Pace 36827. first column. 6 26.73:
The prcposed rule requires the reporting of significant fitness-for-duty events to the NRC Operations Center Within 24 hours of the discovery of                                                                                                                                                 !
che event.
In light of the reportability periods provided in 10 CFR S 50.72 for operational events, the reportability period of 24 hours is inappropriate given the significance of the daccribed fitness-for-duty events.                                                    A reportability period of 72 hours is                                                                                                  '
nore appropriata for fitness-for-duty events.
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