759 P.2d 427 (Wash. 1988), 53616-3, Alverado v. Washington Public Power Supply System (WPPSS)

Docket Nº:53616-3.
Citation:759 P.2d 427, 111 Wn.2d 424
Opinion Judge:UTTER
Party Name:Ron ALVERADO; Gordon C. Arlt; David T. Bushey; Edward K. Burlsey; Lynn Hammitt; Donald Jerritt; Ira C. Martin; Will Mathews; Michael B. Parr; Art Schmidt; and David E. York, Appellants, v. WASHINGTON PUBLIC POWER SUPPLY SYSTEM (WPPSS) and Bechtel Construction, Inc. and/or Bechtel Power Corporation (Bechtel), Respondents.
Attorney:Hafer, Price, Rinehart & Schwerin, Hugh Hafer, Cheryl French, Seattle, for appellants., Arlan Lund, Michael Davidson, Richland, for WPPSS., Riddell, Williams, Bullitt & Walkinshaw, Frederick Rasmussen, Paul Mutty, Seattle, for Bechtel Const., MacDonald, Hoague & Baylett, Katrin Frank, Fred Finkel...
Judge Panel:PEARSON, C.J., BRACHTENBACH, DOLLIVER, ANDERSEN, CALLOW, GOODLOE and DURHAM, JJ., and PETRIE, J. Pro Tem., concur.
Case Date:July 15, 1988
Court:Supreme Court of Washington

Page 427

759 P.2d 427 (Wash. 1988)

111 Wn.2d 424

Ron ALVERADO; Gordon C. Arlt; David T. Bushey; Edward K.

Burlsey; Lynn Hammitt; Donald Jerritt; Ira C.

Martin; Will Mathews; Michael B. Parr;

Art Schmidt; and David E.

York, Appellants,

v.

WASHINGTON PUBLIC POWER SUPPLY SYSTEM (WPPSS) and Bechtel

Construction, Inc. and/or Bechtel Power

Corporation (Bechtel), Respondents.

No. 53616-3.

Supreme Court of Washington, En Banc.

July 15, 1988

[111 Wn.2d 425]

Page 428

Hafer, Price, Rinehart & Schwerin, Hugh Hafer, Cheryl French, Seattle, for appellants.

Arlan Lund, Michael Davidson, Richland, for WPPSS.

Riddell, Williams, Bullitt & Walkinshaw, Frederick Rasmussen, Paul Mutty, Seattle, for Bechtel Const.

MacDonald, Hoague & Baylett, Katrin Frank, Fred Finkelstein, Seattle, amicus curiae on behalf of American Civil Liberties Union.

UTTER, Justice.

Plaintiffs brought an action to permanently enjoin the Washington Public Power Supply System (WPPSS) and Bechtel Construction, Inc. (Bechtel), a WPPSS contractor, from implementing a mandatory urinalysis drug testing program for prospective employees. Plaintiffs argue that this urinalysis program is an unlawful search and seizure under article 1, section 7 of the Washington Constitution. On a stipulated motion for summary judgment, the trial court granted the defendants' motion and dismissed the action. We find that federal regulations preempt the application of state law in this instance, and uphold the WPPSS preemployment drug screening under the administrative search exception to the fourth amendment to the United States Constitution. [111 Wn.2d 426]

WPPSS is a municipal corporation and joint operating agency created under RCW 43.52.250 et seq. It consists of 13 Washington public utility districts and 3 municipalities. WPPSS owns and operates Washington Nuclear Plant 2 (WNP 2), a commercial nuclear reactor located on the Hanford Nuclear Reservation in Benton County. Defendant Bechtel is a construction and maintenance contractor at WNP 2.

Plaintiffs in this action are members of Plumbers and Pipefitters Local 598. The union members are not employees of WPPSS but are instead hired by Bechtel to work on repairs and maintenance at WNP 2 when the plant is temporarily shut down. If hired to work at WNP 2, they must qualify for "special access" authorization which would allow them to work unescorted in all protected or vital areas of the plant. Because of the sensitive nature of the work, all jobs require the utmost skill, concentration and ability to follow established protocol. Before being hired, employees are subject to security screening, background investigation and psychological evaluation.

Only one of the plaintiffs has been a successful applicant for Bechtel employment at WNP 2. The other plaintiffs claim they reasonably expect to be employed during future shutdowns of the plant. When not working for Bechtel at WNP 2, the plaintiffs are likely to be working for another employer on an unrelated project.

WNP 2 has an operating license granted by the Nuclear Regulatory Commission (NRC) and virtually all of its activities are

Page 429

regulated by the NRC pursuant to authority granted to it under the provisions of the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. (1982). The NRC sets the standards and regulates the operation of all commercially operated nuclear power plants in the United States. NRC regulations of commercial nuclear facilities such as WNP 2 are pervasive, particularly in matters pertaining to safety. In the 3 1/2 decades of federal regulation of this industry, the Atomic Energy Commission and its successor, the NRC, have developed an extensive array of regulations touching [111 Wn.2d 427] nearly every aspect of plant operations, including personnel. See 10 C.F.R. §§ 0-199 (1987). The NRC maintains resident inspectors at the plant site to assure compliance with these regulations. This detailed oversight by the NRC enhances the safety of the highly complex and dangerous work performed at a nuclear power facility.

On August 5, 1982, the NRC published a proposed rule which would have required, as a condition of licensure, the adoption of programs assuring that personnel with unescorted access to protected areas of a nuclear plant are not under the influence of drugs or alcohol, or are not otherwise "unfit for duty". See 47 Fed.Reg. 33,980. However, the NRC deferred imposing fitness-for-duty (FFD) requirements for 2 years and instead agreed to accept a substitute program initiated by the nuclear utility industry. This industry initiative was coordinated by three associations: the Nuclear Utility Management and Human Resources Committee (NUMARC), Institute for Nuclear Power Operation (INPO) and Edison Electric Institute (EEI). The industry-initiated program is subject to the approval of the NRC.

In response to the NRC's proposed rule and the industry's recommendation, WPPSS established a "fit for duty" (FFD) program that followed industry guidelines and met the requirements of the NRC. WPPSS' FFD program went into effect on June 2, 1986 for WPPSS employees and August 1986 for contractor employees. This program requires new employees hired for over 30 consecutive days or any employee hired in a capacity requiring unescorted access to WNP 2 to undergo chemical testing as part of the preemployment medical evaluation. Current employees and previously tested employees, rehired within 1 year of termination, are not tested, except for cause. As required by WPPSS, Bechtel incorporated this drug screening program into its application process for those jobs it performs during plant shutdowns.

The FFD program challenged by the prospective employees in this case contains the following significant [111 Wn.2d 428] features: multiple tests to confirm a "positive" test result; a written protocol assuring proper "chain of custody"; nonwitnessed urine sample collection in a medical facility; testing of existing employees on a "for cause" basis and testing of all new hires (both contractor and WPPSS employees); and strict confidentiality of test results. The results of the test are for internal use only and will not be divulged to law enforcement agencies. The worst that can happen to a prospective employee who tests positive after several tests is that he is precluded from work at WNP 2 for 6 months.

In August 1986, the NRC formally withdrew the rule it had proposed 2 years earlier and instead published a "Statement on Fitness for Duty of Nuclear Power Plant Personnel." See 51 Fed.Reg. 27,921. In this statement, the NRC announced three major expectations of nuclear utilities in the effort to maintain a drug free work force: (1) to prohibit the sale, use, possession of alcohol or drugs within plant protected areas; (2) to require persons within plant protected areas to be fit for duty (i.e., not under the influence of alcohol or drugs); and (3) to include certain minimum provisions regarding personnel access to vital areas, sanctions in the event of substance abuse, and "[e]ffective monitoring and testing procedures to provide reasonable assurance" that personnel in vital areas are fit for duty.

The NRC stated further that it would refrain from making any new rules in this area for another 2 years subject to the continued success of the industry initiatives and the NRC's ability to monitor the effectiveness

Page 430

of these programs. While allowing the commercial nuclear power industry some flexibility in implementing a FFD program, the NRC policy statement makes clear that it was not relinquishing its authority in this area and would not hesitate to impose sanctions on those facilities whose anti-drug programs were deficient. See Rushton v. Nebraska Public iPower Dist., 653 F.Supp. 1510, 1514 (D.Neb.1987), affirmed 844 F.2d 562 (8th Cir.1988) (discussing the same NRC policy at issue in this case). [111 Wn.2d 429]

On December 3, 1986, plaintiffs filed a motion in Benton County Superior Court to preliminarily enjoin defendants from requiring job applicants to submit to drug testing as a condition of employment. The trial court denied the motion on December 15, 1986 and subsequently issued an order granting defendants' motion for summary judgment and dismissing the complaint with prejudice. Plaintiffs filed a notice of appeal on February 24, 1987. Believing this matter to involve "a fundamental and urgent issue of broad public import", RAP 4.2(a)(4), this court granted direct review.

This court's review of a summary judgment is de novo. Accordingly, a summary judgment will be affirmed if the pleadings, affidavits and admissions on file show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The record in this case is stipulated and there are no genuine issues of material fact. No questions are raised regarding the reliability of the particular method of urine testing, the dimensions of the drug abuse that actually exists among nuclear power facilities, or the efficacy of this program in dealing with the problem. Furthermore, plaintiffs challenge only that part of the FFD program at WPPSS mandating a urinalysis drug screening for prospective employees.

I

Plaintiffs challenge the drug screening program as being unlawful under Const. art. 1, § 7 of the Washington Constitution. However, the constitutional principle of federal preemption precludes application of the state constitution to determine the validity of this drug testing program.

The issue of federal preemption was not raised by the parties in arguments Before this court. However, this court has inherent authority to consider issues not raised by the parties if necessary to reach a proper decision. See Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972), cert. denied, 411 U.S....

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