Rushton v. Nebraska Public Power Dist.
| Decision Date | 23 February 1987 |
| Docket Number | No. CV86-L-308.,CV86-L-308. |
| Parties | Warren H. RUSHTON and David L. Lostroh, Plaintiffs, v. NEBRASKA PUBLIC POWER DISTRICT, Bernard M. DeLay, Don E. Schaufelberger, Gene D. Watson, Theodore Kyster, Lawrence G. Kuncl, Jay M. Pilant, Robert E. Wilbur, G.S. McClure, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Douglas Veith, Bellevue, Neb., for plaintiffs.
Fredric H. Kauffman and Shawn Renner, Lincoln, Neb., for defendants.
Trial was held from January 6, 1987, to January 13, 1987, to determine the constitutionality of the Nebraska Public Power District (NPPD) fitness for duty-drug/alcohol testing program as it applies to the plaintiffs. By agreement of the parties, this court will determine the validity of the initial program implemented on November 1, 1985, and the recent program outlined in NPG Directive 2.3. The new program is effective January 15, 1987, with the relevant exception that the random testing component is effective April 1, 1987. Both programs are challenged by the plaintiffs as violative of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States and as violative of similar provisions of the Constitution of the State of Nebraska.
NPPD is a public corporation and political subdivision of the state of Nebraska and is organized under the laws of that state. NPPD owns Cooper Nuclear Station (CNS), a nuclear power plant. As a licensee of the Nuclear Regulatory Commission (NRC), Cooper Nuclear Station (CNS) is a heavily regulated facility. Consequently, CNS must meet all the applicable rules imposed by the NRC in 10 C.F.R. Parts 0 to 199. CNS must also adhere to the requirements contained within the Updated Safety Analysis Report (USAR) (a detailed description of the CNS design submitted to the NRC for approval) and other technical specifications. To assure compliance with the various NRC regulations, the NRC maintains resident inspectors at the site and sends inspection teams to investigate plant security. This close regulatory oversight provides, to the extent humanly practicable, the safe operation of CNS.
At the outset it is necessary to describe the plant site, the manner of admittance to the facility, and the distinction between the protected and the vital areas. The protected area of CNS is completely surrounded by a fence, except at the point where the fence meets the security building. To enter the protected area, one must proceed through the entrance of the security building and pass, in single file, through explosive and metal detector devices. Random pat-downs are routinely performed and guards observe entrants for erratic behavior. Once within the confines of the protected area, each of the 700 individuals who are permitted unescorted access participate in the honor system. Variously located throughout the protected area are vital areas. Each vital area is a room with a door requiring a separate access code for entrance. The vital areas house the safety related equipment, the equipment designed to prevent or mitigate a radiological release.
It also appears necessary to recount events transpiring prior to the implementation of the NPPD Fitness For Duty (FFD) program, to cast this case in its proper light. On August 5, 1982, the NRC published a proposed rule requiring, in relevant part, that nuclear power plant licensees establish, document, and implement fitness for duty programs to assure that personnel with unescorted access to protected areas are not under the influence of drugs or alcohol or otherwise unfit for duty. The proposed rule was spawned by NRC concern that personnel with access to a protected area may become unfit for duty due to the effects of alcohol or drugs.
The NRC stated that the number of drug-related incidents involving on-site use or possession of drugs and personnel reporting to work under the influence of controlled substances had increased substantially over the past three years. Those persons with unescorted access to protected areas were chosen because such personnel "may have the opportunity to affect adversely the health and safety of the public through an unobserved act, whether intentional or inadvertent." NRC personnel were not included. In recognition of the unique concerns of each facility, the NRC stated that its proposed rule was broad in scope to permit each licensee to tailor procedures to its own needs. Additionally, the NRC invited public comment on the level of specificity necessary for the proposed rule. Exhibit # 101.
The Nuclear Utilities Management and Human Resources Committee (NUMARC), an agency composed of representatives from each utility operating a nuclear plant, formulated a proposal on FFD which was intended to be an alternative to rulemaking. On April 18, 1986, the NUMARC steering committee informed its executive group members that the original proposal was rejected by the NRC because the policy failed to establish clear guidelines regarding drugs and alcohol at nuclear power plants and to describe the minimum essential elements of an acceptable fitness for duty program. The consensus among the steering committee members was that "effective monitoring and testing procedures" includes preemployment and for-cause chemical testing, but that random chemical testing was not necessary. Exhibit # 42. The testimonial evidence indicated that a policy endorsed by the steering committee represents the "lowest common denominator" to which all members will agree.
On August 4, 1986, the NRC withdrew the proposed rule published on August 5, 1982. Instead, the NRC issued a policy statement in recognition of and to further encourage the initiatives taken by the nuclear power industry, NUMARC, and the Institute of Nuclear Power Operations (INPO) regarding fitness for duty. The NRC noted that the pervasiveness of drug and alcohol abuse in our society led it to conclude that such abuse exists in the nuclear industry. The NRC cited various reports indicating that industrial accidents due to chemical abuse are ever-increasing and are quite costly. Consequently, the NRC determined that "appropriate precautionary measures must be taken to reduce the probability that a person who is under the influence of alcohol, other drugs, or who is otherwise unfit for some task involving a nuclear power unit, may cause an accident or react inadequately to an accident." Exhibit # 102.
The Policy Statement promulgated by the NRC on August 4, 1986, indicated that licensees were to develop and implement FFD (fitness for duty) programs using the guidance of the Edison Electric Institute's (EEI's) "EEI Guide to Effective Drug and Alcohol/Fitness for Duty Policy Development" booklet. Such measures were deemed necessary to provide reasonable assurance that all nuclear power plant personnel with access to vital areas of operating plants are fit for duty. The NRC set forth the minimum essential elements for an acceptable fitness for duty program:
Subject to the continued success of the industry initiatives and the NRC ability to monitor the effectiveness of licensees' programs, the NRC represented that it would refrain from rulemaking on fitness for duty programs for nuclear power plant personnel for a minimum of eighteen months. In addition, the NRC stated that use of the policy statement did not affect its ability to issue orders, call enforcement meetings, suspend licensees for significant safety violations, or conduct necessary inspections or other appropriate enforcement activities for failure to satisfy regulatory requirements. Exhibit # 41.
The testimonial evidence indicates that the FFD program initially implemented by NPPD was instituted for several reasons. First, NPPD was informed by the NRC in the summer of 1985 of allegations of drug use by security guards and licensed operators at CNS. The NRC did not disclose the source of such information, but required proof that CNS employees were fit for duty. The guard force was tested and two positive findings were made. Neither positive determination was confirmed, as one guard later tested negative and the second guard chose not to be tested again. Second, NPPD was spurred into action by the national crisis related to drug abuse. Third, CNS was scheduled to undergo a power outage beginning in the fall of 1984 and continuing for the next eleven months. During this time the plant was shut down. Given the grave concerns voiced by the NRC as to drug use at CNS, NPPD feared that the NRC would insist that CNS remain inoperable after the shut-down until evidence was forwarded to the NRC establishing that CNS personnel were fit for duty. Consequently, on April 16, 1985, NPPD gave written assurance to the NRC that a drug screening program would be effectuated shortly. Exhibit # 40.
The testimonial evidence indicates that the first FFD program was developed by the early fall of 1985, principally to assuage NRC concerns of drug usage at CNS. It was decided that testing beyond for-cause and pre-employment...
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