ML20248H986
| ML20248H986 | |
| Person / Time | |
|---|---|
| Site: | 05508347 |
| Issue date: | 09/28/1989 |
| From: | Cotter B, Foreman H, Kline J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#489-9243 88-577-02, 88-577-2, AD55-1-06, AD55-1-6, EA-88-164, LBP-89-26, NUDOCS 8910120207 | |
| Download: ML20248H986 (38) | |
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89 OCT -2 N0:20 vF F ', '
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NUCLEAR REGULATORY COMMISSION Before Administrative Judges: SERVED OCT - 21989 B. Paul Cotter, Jr., Chairman Harry Foreman Jerry R. Kline In the Matter of: Docket No. 55-08347 MAURICE P. ACOSTA, JR. ASLBP No. 88-577-02-EA Operator License No. 6010-2 September 28, 1989 EA 88-164 INITIAL DECISION By letter dated July 1, 1988, Maurice P. Acosta timely appealed' the suspension of, and refusal to renew, his Reactor Operator's License by the Nuclear Regulatory Commission (NRC or Commission). The Commission's action was taken on June 15, 1988. 53 Fed. Rec. 24383 (1988).
Following appointment of this Board and discovery, a hearing
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' The appeal was not received by the Licensing Panel
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' until mid-August; this Board was appointed August 18, 1988.
The time to complete discovery was extended, and, following trial, a briefing schedule was established. Staff's proposed findings of fact and conclusions of law were timely filed, but appellant failed to file anything.
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was held in San Diego, California on May 24-25, 1989.
Mr. Acosta did.not present any testimony at the hearing.
For the reasons set forth within-, we uphold the Staff's decisions with respect to Mr. Acosta's license.
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I. STATEMENT OF THE CASE l
On July 1, 1982, Maurice P. Acosta received a license to operate the Unit 2 and 3 reactors at the San Onofre Nuclear Generating Station owned and operated by the Southern California Edison Company (SCE). The license was renewed most recently on July 1, 1986 for a two-year period, and, on May 12, 1988, another request for renewal was filed.
In September of 1984 SCE published its policy concerning off-duty drug use which, inter alia, barred marijuana use by people like Mr. Acosta who had unescorted access to protected areas. Tr. 15-21; NRC Staff Exh. 5.
The SCE program evolved from phased disciplinary actions of varying severity to, in 1986, termination after the third positive drug test.
NRC requires that such license applicants state that they have no drug or narcotic habit on NRC Form 396, and, since 1987, NRC has required an evaluation of license L___--_-----__---- - - - - - - - -- -
applicants by a medical practitioner which includes an evaluation for drug abuse. 10 C.F.R. SS 55.21, 55.33 (1988).
On June 15, 1988, the NRC Executive Director for Operations issued an " Order Suspending License (Effective Immediately) and Denial of Application for Renewal of l License" (the Order). The Order recited that under the SCE drug testing program Mr. Acosta had tested positive for marijuana on March 6, 1986, May 12, 1986, and May 28, 1988, and that after each of these initial screening tests had been confirmed, SCE had counseled Acosta to emphasize that his access authorization to the reactors was contingent on abstaining from the use of illegal drugs. Following the third confirmation, SCE administratively suspended Acosta's protected area access. Staff Exh. 1.
l As authority for suspending and refusing to renew l
Mr. Acosta's license, the Executive Director's Order stated that The character of the individual, including the individual's exercise of sound judgment, is a consideration in issuing an operator license. See
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Section 182a of the Atomic Energy Act of 1954, as l amended. In determining whether or not an
' individual seeking a license to be a reactor operator has the necessary character, including sound judgment, the Commission may take into i' l
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account a history of illegal drug use by the applicant.
Id. at p. 2. Section 182 of the Atomic Energy Act, as amended (the Act) specifies the factors, including character, to be considered by the Commission in issuing a license and authorizes Commission issuance of implementing regulations. 42 U.S.C. 2232(a) (1988 ed.). Those regulations are found in Part 55 of Title 10 of the Code of Federal Regulations.
Subsection (a) of Section 186 of the Act provides in pertinent part that Any license may be revoked ... because of conditions revealed by ... any report, record, or inspection or other means which would warrant the Commission to refuse to grant a license on an original application ... or failure to observe the terms and provisions of this Act or of any regulation of the Commission.
42 U.S.C. 2236(a) (1988 ed.). See also, 10 C.F.R.
- 55. 61 (b) (2 ) (1988).
While recognizing that Acosta's positive tests "did not necessarily establish that the Licensee was incapacitated at the time the samples were taken," the Order stated that Acosta's history suggested a " pattern of behavior and lack of sound judgment that may be inimical to the public health i
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and safety." Staff Exh. 1, at p. 3. Consequently, the-Executive Director concluded that the Commission did not have reasonable assurance that Acosta would perform his duties "... with sufficient alertness and ability to safely operate ...
" the San Onofre nuclear reactors. Id. Finding that Mr. Acosta's history of positive drug tests established adequate grounds under Section 186 of the Act and implementing regulations and that permitting Acosta to conduct licensed activities would be inimical to the public health and safety, the Executive Director for Operations suspended Mr. Acosta's license and refused to renew it. Id.
pp. 3-4.
In his July 1, 1988 answer and request for hearing, Mr. Acosta cited an April 15, 1985 and a March 11, 1987 Appraisal of Work Performance, issued before and after the l first two positive marijuana tests, reporting that his I reliability and professionalism exceeded SCE's l j
requirements.2 The letter enclosed the performance appraisals and 29 co-workers' testimonials to Mr. Acosta's competence and professionalism. He argues strongly that his ability to serve as a reactor operator was never impaired in 16 years of nuclear work, including eight years' service at l
2 SCE reactor operator appraisals are conducted I biannually. Mr. Acosta's next appraisal was scheduled for August, 1989. See transcript of October 18, 1988 Prehearing Conference at p. 27. !
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SCE, and that his performance was so satisfactory that SCE had selected him for Senior Reactor Operator License training.
During opening statements, Mr. Acosta's counsel argued3 that two of the positive tests resulted.from passive inhalation. On cross-examination Mr. Acosta's counsel-questioned the reliability of the tests themselves, both with respect to chain of custody procedures and the threshold level for making a positive finding of active marijuana use.
II. DECISION A. Results of Mr. Acosta's Tests
- 1. The Southern California Edison Testing Program Under the Southern California Edison (SCE) testing program,' all urine samples collected from San Onofre 3
Counsel also argued that the SCE random drug screening program violated Mr. Acosta's rights against unreasonable search and seizure under the Fourth Amendment to the Constitution and violated his right to privacy under Article 1 of the California Constitution. Tr. 6-7. Neither Constitutional argument was pursued further, and we find no {
reason to consider them in this decision. I
' The staff subpoenaed three witnesses to testify on the SCE drug testing program. Albert Eugene Talley, an SCE employee, currently manages the substance abuse program at l
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personnel are first collected and labeled in San Onofre facilities. After collection the samples are split; one part, or aliquot, goes to SCE laboratories for preliminary assessment of temperature, specific gravity and chemical screening, and the other aliquot is reserved to send to a contractor laboratory if SCE analyses show a possible positive result on drug screening. Tr. 39-40. The contractor laboratory analyzes at least three separate aliquots of samples sent to them. All must be positive before the laboratory declares a positive result. Tr. 40.
A total of four aliquots is therefore analyzed for each urine sample. Tr. 44. Chain of custody documents prepared by SCE are forwarded to the contractor laboratories with
-each urine sample that is sent. The contractor laboratory maintains the permanent chain of custody records. Notations made by SCE personnel are also forwarded to the contractor laboratory, and forms containing notations made by SCE employees are retained by SCE. Tr. 170-174. SCE has performed about 40,000 drug tests since its program began.
Tr. 84. No evidence was offered to suggest that any tester the San Onofre plant and previously had a staff role in developing the company policy on drug abuse. Tr. 14-17.
Dr. Louis Jambor is toxicology manager for SmithKline Laboratories in Van Nuys, California and holds a Ph.D. in Analytical Chemistry. Tr. 107-108. Dr. Alan Keltz is Laboratory Director at BPL Toxicology Laboratory, a part of i Central Diagnostic Laboratory (CDL) in Tarzana, California, holds a Ph.D., and has extensive experience managing toxicology laboratories. Tr. 153-155.
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l at the San Onofre site ever falsified drug test data. Tr.
78.
l The most widely used tests for marijuana (and the ones used to analyze Mr. Acosta's samples) are the Enzyme-Multiplied Immunoassay Technique (EMIT), and the gas chromatography / mass spectrometry test (GC/MS). Flynn-Cone Testimony ff. Tr. 278 at 3, 8.
Mr. Acosta was involved in intensive drug testing at least from March 1986 to June 1988. Staff Exhs. 2, 3 and 4.
Acosta Exhs. 1-10. During this time at least 13 urine i
specimens were collected at closely spaced intervals and sent to contractor laboratories for drug analysis. Most of these analyses were found to be negative for marijuana metabolites and all were negative for any other prohibited drug. Three specimens collected from Mr. Acosta were reported to be positive for marijuana by the laboratories.
The positive specimens were collected on March 6, 1986, May 12, 1986, and May 28, 1988. Staff Exhs. 2, 3 and 4, respectively. Two of the three samples taken from Mr. Acosta that showed positive results were analyzed by SmithKline Laboratories. Staff Exhs. 2 and 4. That laboratory reported that the March 6, 1986 sample was positive on the screening test (EMIT) and contained 17 micrograms per liter (mcg/L) by the quantitative test
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(GC/MS) and that the May 28, 1988 sample, consisting of three independent samples, ranged from 50-70 mcg/L by-the screening test and 13-17 mcg/L by the GC/MS test.
The May 12, 1986-sample was sent to Central Diagnostic Laboratory (CDL) in Tarzana,-California for screening-analysis. Upon finding 129 nanograms per milliliter 5
(ng/m1 ),- a positive result on the screening analysis, the sample was subsequently sent to the Poison Laboratory ~in San Diego, California which was under contract to CDL to perform GC/MS analyses. That laboratory found 45 ng/ml marijuana metabolite in Mr. Acosta's urine by the GC/MS method. Staff Exh. 3.
SmithKline Bio-Science Laboratory which produced the results shown in Staff Exhibits 2 and 4 maintains strict chain of custody on samples it receives for analysis. When SmithKline receives a sample it removes an aliquot for analysis. The vials were received in the laboratory labeled with Mr. Acosta's name, a client number, and laboratory-numbers, all of which were affixed to the sample at the San Onofre site. The identifying numbers which appeared on the sample vials also appear on the SmithKline reports. Tr.
5 The unit of measurement, micrograms per liter, is equivalent to the unit of measurement, nanograms per milliliter, which is used elsewhere in this decision. Staff Ex. 4.
t 115-117. Mr. Acosta's " sample" of May 28, 1988 was in reality three samples independently collected, labeled and documented.by SCE and processed by SmithKline. Staff Exh.
- 4. This was done because Mr. Acosta's first sample of that date showed abnormally low specific gravity which might indicate excessive dilution possibly due to the intake of fluids prior to the test. Tr. 54-55. The results from the three independent samples were consistent with one another within what appears to be normal sampling and processing error. Results for the three samples showed, in chronological order of collection, 17, 15 and 13 mcg/L. Tr.
170.
The sarple that was analyzed by CDL (Staff Exh. 3) was done with an additional transfer of custody step because, while the initial screening was performed by CDL in their laboratory, the final confirmatory analysis could not be performed by them and accordingly they transferred an aliquot of Mr. Acosta's specimen of May 12, 1986 to the San Diego Poison Laboratory for the GC/MS confirmatory analysis.
Tr. 156, 161. In accordance with ordinary business !
I procedures, a chain of custody form and request for analysis was created prior to transferring the sample. The form and l sample were conveyed in a locked bag by courier to the Poison Laboratory where it was delivered to their entry personnel. Results of the Poison Laboratory analysis were
provided to CDL by phone and hard copy. Tr. 156-157. CDL in turn produced the report to SCE as shown in Staff Exhibit 3. The result from the Poison Lab GC/MS analysis was consistent with CDL's semi-quantitative analysis in that CDL and Poison Lab both found the May 12, 1986 specimen to be the highest in marijuana metabolite of any of Mr.
Acosta's three positive samples.
- 2. The Chain of Custody Issue Through cross-examination, Mr. Acosta challenged the chain of custody for his urine samples collected and tested by SCE and its contractor laboratories. The Staff objected to this line of inquiry on the grounds that Acosta had stipulated to the truth of the matters contained in Staff Exhibits 2, 3, and 4, the laboratory results showing marijuana metabolites in Mr. Acosta's urine. Mr. Acosta on the other hand asserted that he had only stipulated to the fact that the staff exhibits were in fact the reports that were submitted by the contractor laboratories. Tr. 172.
The Board permitted Mr. Acosta to pursue this line of inquiry but ruled that simply questioning the chain of custody would not be sufficient to defeat the representation that the chain of custody on Mr. Acosta's urine samples was properly maintained. Tr. 176-177.
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Although chain of custody documents specifically relating to Mr. Acosta's sample of May 12, 1986 likely exist 1
at CDL, they were not produced at hearing nor were they later supplied to the parties as requested by the Board.
Tr. 161-162. As a result of the apparent misunderstanding between the Staff and Mr. Acosta about the stipulation, none of the witnesses were prepared on cross-examination to document specifically the chain of custody for each of Mr.
Acosta's urine specimens. Each witncbs, however, demonstrated professional awareness of the need for chain of custody procedures in laboratory practice and described chain of custody procedures followed by his place of employment in the ordinary course of business. The Board found the witnesses knowledgeable and credible. Mr. Acosta presented no evidence to suggest that there was any defect in the chain of custody procedures followed in handling his samples.
The Board concludes that each of the three critical facilities that handled urine specimens taken from Mr. Acosta, SCE, SmithKline Bio-Sciences Laboratory, and CDL have chain of custody procedures for the handling of urine samples and that each follows its procedures in the normal course of business. However, that conclusion is not dispositive of the question raised by Mr. Acosta as to whether error specific to Mr. Acosta's samples might exist.
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The Board finds no evidence that all three of Mr.
Acosta's positive samples could have been mislabeled, tampered with, or wrongly attributed to him.- We consider, first, that chain of custody procedures are in place in each of the organizations that handles specimens for drug.
testing. Each~ organization is experienced in handling large numbers of urine specimens. Second, we find that none of the drug testing reports show discrepancies or inconsistent labeling or results that would be suggestive of error or
- tamperi ng. Third, there is considerable redundancy or potential for replication built into the procedures for sample handling. For example, each finding of positive result ~is based on at least four analyses, one for screening at SCE and three for screening or confirmation at contractor laboratories. Each is performed on an aliquot of the original sample by independent methods. Each aliquot requires independent transfer of sample numbers and name. 1 Thus, there is an opportunity for discrepancy or error in i
transcribing descriptive sample information on any one aliquot, but there is no evidence of any such error.
i For example, the sample collected on May 28, 1988 was in reality three independent samples. Each was handled with independent labeling and processing. The analytical results were consistent with one another. In fact they show a
systematic decline in concentration with the passage of time which is consistent with the fact that marijuana metabolites have about a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> biological half life in the body. Tr.
228. Those results further support the conclusion that all three samples were taken from the same person and were handled in the analytical process without error in labeling or tampering.
Similarly, the sample of May 12, 1986 was analyzed by two different laboratories, CDL and Poison Lab. The results they produced were consistent with one another since both laboratories found very high levels of marijuana metabolites by their respective independent methods. These consistent results support the conclusion that there was no mislabeling of aliquot at the respective laboratories for this sample.
We note further that Mr. Acosta has been tested numerous times, mostly with negative results. This is supportive of a conclusion that no systematic or malicious tampering with Mr. Acosta's samples occurred over the testing period.
Finally, we note that there is no evidence of any instances of deliberate falsification of data at San Onofre, The foregoing analysis does not rule out absolutely the possibility of isolated error in the handling of Mr. Acosta's urine samples. Nevertheless, the procedures followed by SCE and its contractor laboratories contain
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replication and opportunity to check for discrepancies in data recording, and for internal consistency within data sets. In this case there is not a scintilla of evidence of recording discrepancies. The data sets are internally consistent for the data shown on Staff Exhibits 3 and 4.
While there was no opportunity to subject the first positive test (Staff Exh. 2) to such independent scrutiny, the fact remains that that sample also was subject to at least three (and likely four) independent analyses. Tr. 71-72.
Consequently, the suggestion that chain of custody errors might have occurred with respect to urine samples collected from Mr. Acosta stands as a bare hypothesis unsupported by any factual data in this record. We find that the likelihood of chain of custody error in the handling of Mr. Acosta's samples is de minimis and that the preponderance of evidence supports the opposite conclusion.
Based on the foregoing, the Board concludes that the data attributed to Mr. Acosta as presented in Staff Exhibits 2, 3, and 4 were accurately attributed to him and that they were obtained from urine specimens collected from Mr. Acosta on the dates specified.
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- 3. Accuracy of Test Results E
In cross-examination Mr. Acosta questioned the accuracy of the test results that are given in Staff Exhibits 2, 3 and 4. His principal concern appears to be whether the chemical methods used by SCE and its contractor laboratories could.be in error by falsely reporting the presence of marijuana metabolites in Mr. Acosta's urine (a " false positive" error).
Dr. William E. Flynn, M.D. and Dr. Edward J. Cone testified for the Staff on the matter of reliability of chemical testing for marijuana metabolites in urine.
Dr. Flynn is a medical doctor and practicing psychiatrist on the faculty of the Department of Psychiatry, Georgetown University ~ Hospital, where he is Director, Alcohol and Drug Abuse Clinic. Dr. Cone holds a ph.D in Chemistry and is employed as Chief, Laboratory of Chemistry and Drug Metabolism of the Addiction Research Center at the National
. Institute on Drug Abuse. Flynn-Cone Testimony ff. Tr. 278 at 1-2; Exhs. 1 and 2. Mr. Talley of SCE and Dr. Jambor of SmithKline Laboratories also provided relevant testimony on the reliability of the testing procedures. The Board found l
the witnesses knowledgeable and credible on the reliability of drug testing techniques.
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_17_ i The NRC Staff objected to. inquiries-into the accuracy.
of test results reported in Staff Exhibits 2, 3.and 4 {
becausefit believed that Mr. Acosta had stipulated to the accuracy of the results prior to~ trial. Mr..Acosta claimed however that he had only stipulated that Staff Exhibits 2, 3' and 4 were business records produced in the ordinary course of business. The Board ruled that Mr. Acosta could inquire into the accuracy of test results. Tr. 171-175.
When marijuana is smoked it is distributed to various parts of the body and breaks down into metabolites that are-excreted in the urine. The EMIT test is performed by adding I a reagent to urine that contains antibodies that bind specifically with marijuana metabolites. A second reagent that also binds.with antibodies and is labeled with an i
enzyme is added. - This reacts with the unfilled antibody l sites and results in reduction in the enzyme activity of the l 0
introduced reagent. The remaining (unbound) enzyme activity is measured spectrophotometrically. That measurement 4
identifies the amount of marijuana metabolite in urine and makes possible a measurement of marijuana in the original sample. The EMIT test is accurate for the detection of marijuana metabolites in urine. Flynn-Cone Testimony ff.
Tr. 278 at 3-4. EMIT was used as a screening test for Mr.
Acosta's samples. Id. at 8. Tr. 39-40.
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The GC/MS test is specific for one marijuana metabolite,.11-nor-delta-9-tetra-hydrocannibinol carboxylic acid (THC acid). In this test the urine sample is'first subject to a number of chemical treatments which separate THC acid from urine, partially separates the THC acid from other compounds,.and converts it to a derivitized chemical form which.is amenable to detection.
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The detection step is accomplished with a GC/MS instrument. The partly purified sample is fir ~st passed through a chromatography column which separates the altered THC acid from other compounds by virtue of differential migration rates through the column. The time (retention time, Rt.) required to pass.
through the column is specific to each compound present in the sample. As THC molecules emerge from the column at a characteristic Rt they are ionized into molecular fragments in a reproducible way by the mass spectrometer. The fragments yield a pattern or fingerprint which is measured by the mass spectrometer every few milliseconds. The integrated response is drawn as a tracing or chromatogram.
Proper performance of the test requires measurements against standards which are used to characterize retention times on the column (Rt), ion patterns, the ebundance of THC acid present, and responses of standards and control samples used in instrument calibration. If the unknown sample matches the known standards in these respects, the unknown can be identified as THC acid and the amount present can be I
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determined. The specificity and accuracy of the GC/MS 1
method ~is such that it is the accepted standard for confirmation of drug tests in forensic cases. Idl. at 4-7.
Mr. Acosta questioned the witnesses as to whether false positive results could be obtained by the foregoing procedures. However, he presented no evidence and the witnesses knew of no mechanism that might result in false
. positive determinations on Mr. Acosta's urine samples. Tr.
87, 114, 189-90.
While~no evidence of any false positive occurrence was
. presented, the Board infers that false positive results could appear if urine innocently contains some compound which reacts similarly to marijuana metabolites in the tests or if a urine specimen is either accidentally or deliberately contaminated with marijuana metabolites. When questioned about the EMIT test, Dr. Cone could think of no compound which would mimic marijuana metabolites in that test. Tr. 190.
There is no testimony in the record concerning either accidental or malicious contamination of urine samples with i an extraneous source of marijuana metabolites. However the Board notes that Mr. Acosta was tested for drug use at least 13, times during the period from March 1986 to June 1988.
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Staff Exhs. 2, 3 and 4; Acosta Exhs. 1 through 10. Ten of these samples were negative and three were positive for marijuana metabolites. Ten out of 13 negative results further supports our conclusion that there are no systematic errors of contamination in the routine laboratory procedures at issue here.
As previously noted, each urine specimen is tested four times on separate aliquots drawn from the original sample.
An EMIT test is performed at SCE laboratories for screening purposes, two EMIT tests are then performed at the contractor laboratory, and finally a GC/MS test is performed by the contractor for confirmation. Tr. 109-110. When all tests are completed, they are reviewed by an SCE medical doctor for consistency and specifically for the possibility that the person tested might be taking some legal substance l
which might account for a positive result. Only after this review and with all four tests positive does SCE find that the drug test is positive. Tr. 38-45.
A positive analysis on an individual specimen is found if the specimen contains marijuana metabolites in sufficient quantity to exceed predetermined cutoff levels. The cutoff '
levels are different for the EMIT test and the GC/MS test.
It is currently SCE policy to use a cutoff level of 50 ng/ml of marijuana metabolite as determined in the EMIT test
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although in the past it has used 100 ng/ml. Tr. 75-76;.97-
- 99. Laboratories use 50 ng/ml in EMIT tests and 10 ng/ml as j cutoff for the GC/MS test. Tr. 110-113. The two tests i
differ because EMIT measures an array of several metabolites !
in urine while the GC/MS test measures a single metabolite.
EMIT results are therefore always higher than GC/MS results for the same positive sample although there is no constant ratio of the two. Tr. 117-118. I The cutoff levels are j I
selected in consideration of the accuracy and precision of
- the test. Tr. 118-119. The GC/MS test has a 99 per cent level of confidence of detection at the 10 ng/ml level; the EMIT test has approximately 95 per cent probability of detection at 50 ng/ml. The probability of correct detection improves as the concentration of metabolites increases above the cutoff level. Both tests have a coefficient of variation of approximately 10 per cent. Tr. 118-119, 124, 225-27.
l The Board is persuaded from its review of methodology that the chemical analyses of Mr. Acosta's urine specimens were performed using reliable procedures that are highly unlikely to produce false positive errors. The possibility of false positive error in the analyses is low because a finding of positive result by SCE is based on four independent analyses, after review of the case by an expert to rule out the possibility that legal substances could have
4 produced a positive result. Further, the EMIT test and the GC/MS test are both highly specific for detection and measurement of marijuana metabolites and the tests have independent chemical and physical bases for the measurements. The EMIT test depends on a specific chemical reaction between antibodies and several metabolites followed by spectrophotometric measurement, while the GC/MS test depends on separation of a single metabolite by gas chromatography and detection by the physical method of mass spectrometry. The. independence and specificity of the respective methods gives strong corroboration to the expert's opinion that there are no extraneous chemical molecules which might be present in urine that could positively interfere with the test results. We find it particularly unlikely that an extraneous molecule could produce false positive results in two tests that differ in their physical and chemical bases for detection and measurement.
Finally, we find that no discrepancies in data recording or internal inconsistencies in data sets have been reported for Mr. Acosta's results. The margins for error in l the tests of about 10 per cent and the confidence levels of detection at the respective cutoff levels for the two tests further support the conclusion that the tests are reliable for detection of marijuana metabolites in utine. While the a-_--__________ . _ - - - . _ _
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12(IT test'which is used'for screening has lower levels of confidence of detection than GC/MS, none of the quantitative-results reported for Mr. Acosta are marginally close to the cutoff' levels.' The results from both EMIT and GC/MS are sufficiently high that-they can be distinguished from the respective cutoff levels.with high confidence.
In view of the foregoing, the Board finds that the ,1 marijuana test results reported in Staff Exhibits 2, 3 and 4' are accurate and reliable and that there is no evidence that any of the results can be attributed to false positive errors arising from the analytical processes.
- 4. The Passive Inhalation Claim Mr. Acosta argued that the first and third of the urinalysis / drug screening examinations that he took were positive, because he was exposed, immediately before those tests, to an environment containing smoke from what he believed at the time to be marijuana cigarettes. Tr. 6; see also Prehearing Tr. 15. Mr. Acosta presented no evidence to support his passive inhalation claim. The Staff presented 6
The third urine sample collected on May 28, 1988 i showed 50 ng/ml by the EMIT test which is at the cutoff i level. However, the other two samples collected earlier that day were unambiguously higher than the cutoff level.
All three of these samples exceeded the cutoff level of the GC/MS test by a significant margin. l l
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i extensive testimony through Dr. Cone (ff. Tr. 278 at.9-11) to show-that Mr. Acosta's passive inhalation claim was without merit.
Dr. Cone described a series of studies he conducted regarding_the extent-to which passive inhalation of marijuana smoke could result in positive drug tests (ff.-Tr.
276 at 8;.Tr. 190-191). The studies demonstrated that.Very extreme conditions must be endured for a person to reach the i marijuana' levels-found in Mr. Acosta's test results. Tr.
194-195. .In one.such study wherein subjects were exposed to the smoke of sixteen marijuana cigarettes with a marijuana potency of commonly-used cigarettes, the urine' levels were equal to or higher than those found for Mr. Acosta. The study showed that absorption of amounts of marijuana sufficient to test positive for up to twenty-four hours required substantial exposure to large amounts of smoke for ;
an extended period of time in a small, unventilated room.
Subjects in that study had to wear goggles to remain in the room because of the smoke irritation. Passive exposure resulting in marijuana metabolite levels found in Mr.
Acosta's urine was hardly likely to be found in a social situation. Tr. 195, 202.
l In other studies in which five male subjects were exposed to the smoke from four marijuana cigarettes for a L.
M period of one hour in a small unventilated room, the highest THC acid concentration in the urine of one person was 12 ng/ml immediately after the exposure. One other subject had 8 ng/ml THC acid in his urine and the other three had none.
Flynn-Cone testimony, ff. Tr. 278, pp. 9-10. Peak levels in urine occur immediately after exposure, and they decline with the passage of time. It would be extremely unlikely for levels found in Mr. Acosta's urine to occur several hours after a passive exposure. Tr. 203-204. When Dr.
Cone's experiments were altered to emulate a social situation by simply improving the room ventilation by leaving a door open, none of the subjects being tested for passive inhalation had marijuana metabolites in the urine.
Id. at Tr. 205.
Mr. Acosta had 17 ng/ml and from 17 to 13 ng/ml (in three tests) in urine on the occasions for which he asserts passive inhalation. Staff Exhs. 2, 4. These are all higher than any experimental result found by Dr. Cone except under the most extreme conditions which are unlikely to occur in a social situation. Mr. Acosta's test results are reliably distinguishable from Dr. Cone's test results within the error margins of the test. Tr. 227. Further, Mr. Acosta presented no evidence concerning the circumstances surrounding the alleged passive inhalation, much less any evidence suggesting that the extreme conditions described by l
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"rt Dr. Cone actually prevailed. Accordingly, the Board finds that Mr. Acosta's claim that his urine tested positively for marijuana because he was passively exposed to marijuana smoke is without merit.
B. Impact of Marijuana Use
- 1. Complexity of Reactor Operator Duties and Responses N. K. Hunemuller, Reactor Engineer in the operator Licensing Branch of the Division of Licensee Performance in the Office of Nuclear Reactor Regulation (NRR) and J. A.
Zwolinski, Deputy Director, Division of Licensee Performance and Quality Evaluation in NRR testified on the scope of duties, responsibilities, and responses of a reactor operator such as those at the San Onofre facility. Tr. 278 l
at 3-30. They stated that the reactor operator's primary responsibility is for the safe and efficient operation of his assigned equipment. Id. at 15, 24. He is responsible for operation within the requirements of the operating license, technical specifications, NRC orders, approved station procedures, and operating instructions. The unit reactor operator is authorized to shut down the reactor if he determines the safety of the unit is in jeopardy or if operating parameters exceed the reactor protection setpoints
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l and an automatic shutdown has not occurred.
4 Id. The
- station operating procedures also set out additional reactor i d
operator responsibilities, most notably, taking timely and appropriate action during abnormal or emergency situations.
Id. at 16-17.
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The reactor operator is also often responsible for i directing others in the performance of plant functions. Id.
at 22-23. The reactor operator must be familiar with a large number of station procedures including: individual systems normal-operating procedures, integrated plant normal' operating procedures; annunciator or alarm response procedures, selected equipment or test surveillance procedures; abnormal conditions operating procedures, and emergency operating procedures. Id. at 23.
i The witnesses testified further that it is not enough for a reactor operator to learn his job and perform it by rote. There are far too many procedures. In addition, it is the reactor operator's obligation to determine from the purpose of a particular procedure whether it is applicable
! to a given situation. The reactor operater must constantly l
l exercise judgment based on his knowledge of plant procedures, technical specifications, equipment, and his continuing assessment of the condition of the plant. Id.
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l l' l l-i The Board concludes that the duties of a reactor operator are complex and require'the continuous exercise of clear judgment. It.further concludes that impairment of that. judgment constitutes a threat to public health and safety.
- 2. Effect of Marijuana on Performance Against this background, Dr. William E. Flynn testified to the effects of marijuana usage.7 Dr. Flynn emphasized that the most significant effects of marijuana in the case of a reactor operator were those relating to the mental function, particularly impairment of cognitive and psychomotor activities. Flynn Testimony ff. Tr. 278, 12-
- 16. He testified that In the area of learning, the detrimental effect of marijuana appears to operate primarily through its influence on short term memory. Marijuana affects 7
Dr. Flynn received his M.D. degree from Georgetown University School of Medicine in 1957. He is certified in psychiatry by the American Board of Psychiatry and Neurology. He has practiced psychiatry for some 30 years, specializing in the area of drug abuse since 1972. In this role he directed the Alcohol and Drug Abuse Clinic at Georgetown University for the past 15 years. In addition to clinical practice wherein he has treated hundreds of drug users and addicts, he has taught at his own and other institutions and has served as a consultant to many agencies, including the Psychiatric Advisory Board-Virginia State Board of Medical Examiners, the C.I.A., and the Washington Redskins. He writes and lectures extensively on drug abuse and addiction. Flynn Testimony ff. Tr. 278, Curriculum Experience / Vitae.
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a central area of the brain, interrupting normal nerve conduction pathways and making recent bits of information unavailable for comparison. The !
learning process requires such comparisons as well as evaluation of information for meaningful retention to take place. Laboratory and classroom experience show that a person using marijuana does not retain information and, consequently, has difficulty maintaining a reasonable attention span.
The other prime area of research has been on those psychomotor activities involved in operating complex machinery such as driving automobiles, flying airplanes, etc. The demands of an operator in a reactor control room are at least equal to the demands on an individual driving an automobile or flying an airplane. A variety of defects produced by the use of marijuana have been !
demonstrated.
- 1. Difficulties in tracking, i.e. following a stimulus such as a light or verbal or written d directions over a period of time. A consistent finding is that an individual under the influence of marijuana cannot maintain tracking. In driving this shows up as an inability to maintain consistent distances between automobiles.
- 2. Difficulties in responding to peripheral stimuli. The individual has less success responding to lights, directions, etc. that are off to the side of his attention. In driving situations, this may involve missing turn-off signals, etc.
- 3. Rote responses in simple situations are unimpaired but responses in complex situations are dramatically impaired. For example, in a driving simulation where the individual must respond to an accident or directions for avoidance behavior by using his memory and judgement and making comparisons his performance is impaired. The j greater the complexity of the required j response, the more the impairment is i apparent.
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- 4. Inability to perceive impairment in functioning. It is regularly observed that
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i the. marijuana user does not see his own i'
-mistakes'andthas;a' false high opinion of his own performance. -This misjudgment of performance is not. restricted to creative activity as.in the' case of the individual who i
' thinks he has written a masterpiece which is seen as worthless on-sober reflection. It-also applies to individuals who think they are doing extremely'well in an obstacle course only to learn that.they have knocked over all the barriers.
It is important to note.that these impairments can-persist for some hours after the individuals were aware that ne/she was high. In experimental situations, although the subjective experience of being.high had passed, the cognitive and psychomotor impairment persisted. ... most of these effects are seen after smoking small amounts.
The concentration of marijuana in an individual after smoking 1-2 cigarettes can vary tremendously dependent upon the-individual's size, weight, manner of smoking, etc.
These effects have been estimated to last anywhere from 4-10 hours following the time the individual is high.
Flynn Testimony ff. Tr. 278, at 12-15.
Dr. Flynn, based on the testimony of Messrs. Hunemuller and Zwolinski, pointed out that the functions and responsibilities of reactor operators (the complex responses necessary in the operation of reactors, and, in particular, emergency situations) require a considerable amount of careful sequencing of steps, repeated judgments about the necessity of further safety measures, and a critical ability to use extremely accurate judgment. The routine duties of a
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reactor-operator might not be affected.at all by some levels of marijuana, but, in a complex situation, the operator's
- performance would-be unpredictable. The reactor ~ operator has to-be'able to react in a flexible manner to unpredictable events. Hunemuller,.Zwolinski Testimony ff.
Tr. 278 at 27-29. The person' impaired by marijuana cannot~
do that. The reactor operator needs to be acutely aware of his own level of functioning: a person impaired by marijuana lacks that awareness. In other words, the reactor operator's performance and judgment must be completely and consistently predictable, and that is impossible for someone in a stage of marijuana impairment.
Dr. Flynn concurred with Dr. Cone's opinion that the results of Mr. Acosta's test are conclusive that he was a marijuana user at the time of the tests. Flynn-Cone Testimony ff. Tr. 278 at 9, 11-12. Dr. Flynn concluded that
... three positive urine tests for marijuana strongly indicate an inability to refrain from drug use and the presence of a chronic problem.
Any person in a sensitive responsible position, who tests positive repeatedly, when there is a ]
clear knowledge of the likelihood of further testing, demonstrates a definite inability to refrain from drug using behavior. These positive test results could indicate a lack of awareness by this individual that he has a problem with I marijuana use. I believe there would be a very strong likelihood of relapse to a use of a small amount of marijuana or to a very large amount.
L The individual without a perception of his problem would be constantly risking the possibility that ,
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- s one day he would report for work accidentally.
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under the influence of marijuana. The repeated incidence of testing positive would.suggest that the individual had poor impulse control and very little perception of the danger he was causing to himself and to those around him.
Flynn Testimony ff. Tr. 278, at 11-12.
In a letter to the Director of the NRC Office of Enforcement dated July 1, 1988 and presented to the Board at the Prehearing Conference on October 18, 1988, Mr. Acosta points out:
In the meetings I've had with Southern California Edison (SCE) representatives I've been told neither my knowledge level to perform my job, nor my abilities to perform my job, nor my fitness for duty has ever been questioned due to the failures of the drug screen tests. These statements were made with a union representative present at the meetings.
I have enclosed copies of my two most recent Appraisal of Work Performance; the first dated April 15, 1985, the second dated March 11, 1987.
As you can see, the appraisal improved even though I had failed two tests during the time frame from April 15, 1985 to March 11, 1987, and as stated on the appraisal, my reliability and professionalism exceeds the requirements as set forth by SCE. I have worked hard to achieve this status, and the appraisals are a true reflection of my dedication to the safe and efficient operations of SONGS units 2 and 3.
Mr. Acosta submitted exhibits in his defense showing numerous negative drug test results during the period from March 1986 through March 1988 (Acosta Exhs. 1-10) and favorable work performance appraisals prepared by his supervisors at SCE. Acosta Exhs. 11-12.
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s Mr. Acosta's defense apparently contemplates that the Board should apply a balancing test in deciding whether to i
sustain the Staff's order in this case. On that theory, the balancing of a predominantly good work record and frequent negative test results against three incidents of drug use could result in a decision in his favor. We must reject such a balancing test, however, because even the infrequent use of marijuana by a reactor operator poses too serious a danger to public health and safety. 1 Mr. Acosta had been afforded the opportunity to cease ;
drug use and retain his position as a licensed operator i after each of his first two positive tests. Tr. 36-37. In these circumstances, the Board finds that the repeated use of drugs by Mr. Acosta is sufficient to cause his operator's license to be revoked, and that his prior work record, however favorable, is not a factor that can alter that judgment.
The Board is persuaded that Mr. Acosta's three positive urine tests for marijuana establish his use of marijuana.
The Board ic further persuaded that Mr. Acosta knew the risk he ran by continuing usage. Consequently, the Board cannot find that level of trustworthiness and reliability required of one in the sensitive position of reactor operator. The 1
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,e s -Y Board must be concerned, first and foremost, about the risk to the health and safety of the public.
III. CONCLUSION Accordingly, we find that Mr. Acosta has used marijuana-on three separate occasions as evidenced-by the confirmed marijuana screening tests of March 6, 1986, May 12, 1986, and May 28, 1988 and, concomitantly, that Mr. Acosta's claim of passive inhalation is not sustained by the record. We find that the' Southern California Edison testing program was accurate, complete, and fully reliable aus the basis for the foregoing conclusions.
We find further that the duties of a reactor operator are such that Mr. Acosta's confirmed usage of marijuana presents an unacceptable 1 risk of danger to the public health and safety in the operation of a nuclear reactor by him.
We find that it is clear as a matter of law under the Atomic Energy Act that a license can be suspended for any reason for which it would not have been issued initially and that Mr. Acosta's record of marijuana consumption from 1986 through 1988 would have barred the issuance of a license to him. Similarly, we find that the Commission may decline to renew a license on the same grounds because Mr. Acosta's conduct prevents the Commission from having reasonable L __ _ 1-. -
..; j assurance that'Mr. Acosta could continue to operate the reactors at Units.1 and 2 competently and safely.
Accordingly, we conclude that the risk presented by Mr.
Acosta's conduct is, pursuant to the Atomic Energy Act, of such magnitude as to warrant the Nuclear Regulatory Commission to suspend immediately Mr. Acosta's license pursuant to 10 C.F.R. S 55.61 (1988) and to refuse to renew his license pursuant to 10 C.F.R. S 55.57-(1988).a Pursuant to 10 CFR S 2.760 of the Commission's Rules of Practice,-this Initial Decision will constitute the final decision of the Commission thirty (30) days from the date of its issuance, unless an appeal is taken in accordance with 10 C.F.R. S 2.762 or the Commission directs otherwise.
8 We make no finding as to what course of action or conduct on Mr. Acosta's part would be sufficient to reestablish a level of reliability and trustworthiness of judgment that would warrant the Nuclear Regulatory Commission's issuance of a new reactor operator license to Mr. Acosta in the future. But see 10 C.F.R. SS 26.25, 26.26 (1989), 54 Fed. Reg. 24468, 24497-24498 (1989).
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This decision may be appealed by filing a Notice of Appeal within ten (10) days after service of this Initial Decision pursuant to 10 C.F.R.HSS 2.762, 2.785 (1988).'
Anything in the record not expressly addressed in this decision is rejected as unsupported by the record as a whole or as unnecessary to reaching our decision.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 28th day of September, 1989 ORDERED That the June 15, 1988 Executive Director for Operations' Order Suspending License (Effective Immediately) and Notice of Denial of Application for Renewal of License
' Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant inay file a brief in support of, or in opposition to, the appeal of any other party. A responding party shall file a single, responsive brief only regardless of the number of appellants' briefs filed. Ege 10 C.F.R. S 2.762.
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' is sustained and that Mr. Acosta's application to renew his Reactor Operator's license is denied.
ATOMIC-SAFETY AND LICENSING-BOARD L / lyn-g - utm v Dr. Harify Foreman ADMINISTRATIVE JUDGE A4 M
- r. Jerry / Kline i ADMINISTRATIVE JUDGE 6 >
'B. Paul Cott ,' J r . , C h a i r m a n l ADMINISTRATE JUDGE-Bethesda, Maryland September 28, 1989.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
in the Matter of I I
MAURICE P. ACOSTA. JR. I Docket No.(s) 55-08347 i
(Operator License No. 6010-2 1 EA 88-164) I I
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoino LB INITIAL DECISION (LBP-89-26 have been served upon the following persons by U.S. mail, first-class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Atomic Safety and Licensino Appeal Administrative Judge Board B. Paul Cotter. Chairman l' O.S. Nuclear Regulatory Commission Atomic Safety and Licensino Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Harry Foreman Atomic Safety and Licensino Board 1564 Burton Avenue U.S. Nuclear Raoulatory Commission St. Paul. NN 55100 Washington, DC 20555 Janice E. Moore. Esc.
Office of the General Counsel Maurice P. Acosta, Jr.
U.S. Nuclear Regulatory Commission 193 Santa Maria. Court Washington, DC 20555 Vista, CA 92003 Dated at Rockville Md. this 2 day of October 1989
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biiice"Ei~ihi~Secrei~ar~y~oi~ihe Commii555n l
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