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Green beer on St. Patrick's Day, CC-BY SpaceAgeSage, croppsed
Green beer on St. Patrick’s Day, CC-BY SpaceAgeSage, Cropped

From the NRC: “This meeting has two purposes: (1) provide information to the public about the NRC rulemaking activity on the role of third parties in licensee access authorization and fitness-for-duty determinations; and (2) offer an opportunity for the public to express views on this rulemaking activity.
Meeting Dates and Times 11/16/16 1:00PM – 4:00PM Webinar Link
:https://attendee.gotowebinar.com/register/5420377198122466820 Daniel Doyle 301-415-3748 http://meetings.nrc.gov/pmns/mtg?do=details&Code=20161393

Glancing through related documents suggests that this rule-making, or potential rule-making, is due to at least two lawsuits by a Chicago Union (Electrical Union 15) on behalf of whining “grieving” nuclear workers who think that Exelon’s policy of no drugs and no alcohol is too strict: “May 28, 2013 Grievance: “On April 30, 2013, [the grieving employee] was informed through certified mail that he has to abstain from alcohol consumption and intoxicating substances during non work hours, work hours, holidays and weekends. / This condition must be maintained to be employed with Exelon. Local 15 feels this is excessive and needs to be removed from his file.

Sanity requires that we side with the utility against the union. There’s nothing to arbitrate. If they don’t want to abstain then they need to find non-nuclear work. Alcohol, and especially drugs, have lingering effects. Lingering impacts of alcohol have been known for decades. Additionally, if workers become habituated-addicted to drugs or alcohol off-duty they may be tempted to continue when on-duty or be affected by withdrawal. If workers are drinking or on drugs during holidays and are called in on emergency duty this could also be a dangerous problem. This is actually one more reason to shut down the nuclear industry because a no drinking policy is difficult to enforce. The same is true of marijuana in states that have decriminalized it. Shut-down the nuclear reactors. Those willing to stay sober will be needed for nuclear waste work. While St. Patrick’s day isn’t the only day that people might imbibe on a holiday, changes of weather in the spring and fall put additional stresses on aging nuclear power stations, which increases the risk of a nuclear accident. And, St. Patrick’s Day is in the spring and a very big deal in Chicago, where local 15 is based.

Fairewinds.org explains the importance of Fitness for Duty:
Fairewinds.org Fitness for Duty-Three Mile Island Chernobyl

The Defense-in-Depth FFD Strategy
The US NRC regulations are not strict enough. They have a 3 strikes you are out policy with some exceptions such as the licensee (Exelon) saying otherwise, and drug/alcohol use in the protected area of the nuclear power station, and then the worker is banned for only 5 years.
NRC Sanctions – for alcohol or drug test results
Three Strikes 1st Offense 14-day denial 2nd Offense 5-year denial 3rd Offense Permanent denial
Special Cases 1. Licensee-administered sanctions 2. Administrative actions allowed on validity screening or initial validity testing results for marijuana and cocaine; others drugs allowed if determined by an SAE 3. Withdrawal of employment application after 1st test = 5-year denial 4. Use of drugs/alcohol within the Protected Area = 5-year denial 5. Subversion/Adulteration/Refusal-to-Test = Permanent denial 6. Reporting of offsite drug use = mgt/SAE review with a D&A test

Fitness for Duty 3 strikes you are out US NRC
http://www.nrc.gov/docs/ML1415/ML14157A306.pdf
http://www.nrc.gov/reactors/operating/ops-experience/fitness-for-duty-programs/faqs/sanctions.html

The union lawsuit also underlined the legality of alcohol consumption. Washington State, which has a nuclear power station and Hanford nuclear waste site, has just legalized marijuana. So, this argument may increasingly be used for marijuana.
Impacts of smoking marijuana NIH

Why is Exelon (and apparently Entergy) concerned? Even though the nuclear industry has very limited liability in the event of a nuclear disaster due to Price Anderson, they have some liability. Additionally it probably wouldn’t be good for their corporate image or stock value, and there would be public backlash.

This is what is probably a rare example of how Trump’s getting rid of 3 regulations and replacing with one could work. Currently the US NRC has a three strikes you’re out policy, with some exceptions. Exelon wants one strike you are out. Entergy seems to have the same policy. They are right. As luck would have it, Trump doesn’t drink and Hillary belongs to a church (UMC) that traditionally opposed drinking. So, unlike the union, both should understand that public safety comes before drinker and drug addict “rights”. Catholic (and possibly Episcopal) workers may need to make a special request to have wine replaced with grape juice for Mass (communion), but this is allowed for alcoholic priests so shouldn’t be a problem.

The union is also suing over Exelon monitoring on and off-site behavior, a “grievance” raised after this event: “On May 9, 2012, an off-duty Dresden Station SRO hijacked a car at gunpoint, in an off-site Illinois parking lot. Illinois authorities charged the SRO with aggravated vehicular hijacking. After fleeing the country while on bail, he was convicted in absentia and sentenced to 40 years in prison. Shortly after the SRO’s arrest, Local 15 employees informed Exelon management that a Dresden Station Equipment Operator (“EO”), a member of Local 15, had been discussing his knowledge of the SRO’s plans to rob an armored vehicle—with the complicity of another Dresden Station SRO. Exelon investigated, and concluded that all three individuals were not trustworthy and reliable under 10 C.F.R. § 73.56, revoked their unescorted access to Exelon’s nuclear facilities, and terminated the employment of all three.” Exelon noted that “The EO’s termination is not the subject of any ongoing challenge by the Local.” Exelon further notes that “Aberrant behavior reflecting on the trustworthiness and reliability of personnel with unescorted access has long been the subject of required reporting—whether it occurs on-site or off, or relates to conduct on-site, or off. / Pursuant to NRC regulations, all commercial nuclear power plant licensees, including Exelon, must have an approved physical security plan that provides protection against radiological sabotage and unreasonable risk to the public health and safety.

US NRC states: “Some commenters were in favor of granting the petition. For example, one commenter wrote that the Atomic Energy Act of 1954, as amended, and the NRC’s security regulations are intended to protect the public health and safety which is dependent on a stringent approach to site security, including limiting the persons who have access to the nuclear facility to those who have been appropriately screened and whose behavior continues to justify site access. Other comments in favor of adopting the petition expressed similar opinions.
http://www.nrc.gov/docs/ML1606/ML16063A268.pdf

Excerpted from:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the Matter of: Docket Nos. 50-237-EA 50-249-EA EXELON GENERATION COMPANY, LLC (Dresden Nuclear Power Station, Units 2 and 3 January 24, 2014:
“….off-site criminal activity by a Senior Reactor Operator (“SRO”) and the failure of certain Dresden Nuclear Power Station (“Dresden Station”) personnel to report aberrant behavior.2 To be granted a hearing in this proceeding, Local 15 must demonstrate standing and submit at least one admissible contention.3 The Board must deny Local 15’s Petition because it meets neither of these requirements.4 Most significantly, the Local has not articulated an injury caused by the Confirmatory Order, because the Order does not expand the scope of its members’ longstanding reporting obligations established in the NRC’s access authorization rules.

Moreover, although the NRC’s requirements may affect the existence of a duty to bargain under the National Labor Relations Act (“NLRA”), the NRC is not the appropriate forum for the Local to raise its claim that Exelon failed to bargain with it over changes to Exelon’s procedures because such relief falls well beyond the scope of the statutory authority of the NRC or the agency’s particular expertise. Finally, the Board lacks authority to grant Local 15’s request for discretionary intervention, because no other petitioner has established standing and an admissible contention warranting a hearing in this matter—a precondition for discretionary intervention.

Thus, Local 15’s Petition must be denied in its entirety.

II. BACKGROUND

On May 9, 2012, an off-duty Dresden Station SRO hijacked a car at gunpoint, in an off-site Illinois parking lot.5 Illinois authorities charged the SRO with aggravated vehicular hijacking.6 After fleeing the country while on bail, he was convicted in absentia and sentenced to 40 years in prison.7

Shortly after the SRO’s arrest, Local 15 employees informed Exelon management that a Dresden Station Equipment Operator (“EO”), a member of Local 15, had been discussing his knowledge of the SRO’s plans to rob an armored vehicle—with the complicity of another Dresden Station SRO.8 Exelon investigated, and concluded that all three individuals were not trustworthy and reliable under 10 C.F.R. § 73.56, revoked their unescorted access to Exelon’s nuclear facilities, and terminated the employment of all three. The EO’s termination is not the subject of any ongoing challenge by the Local.

The NRC Office of Investigations (“OI”) also initiated an investigation to determine whether the accomplice SRO, the EO, or other Dresden Station personnel knew that the first SRO planned to commit a crime and failed to report that aberrant behavior to Exelon, contrary to NRC regulations.9 Based on the OI investigation, the NRC identified apparent violations of the NRC’s access authorization requirements contained in 10 C.F.R. § 73.56: specifically, the requirement that “individuals who are subject to an access authorization program . . . shall at a minimum, report any concerns arising from behavioral observation, including, but not limited to, concerns related to any questionable behavior patterns or activities of others . . . .”
…. Significantly, the NRC found that Exelon’s commitments, as set forth in the Confirmatory Order, “are acceptable and necessary and conclude[d] that with these
commitments the public health and safety are reasonably assured.”…
Fundamentally, the injuries Local 15 asserts are that under the Confirmatory Order: (1) its members are “subjected for the first time to observation and reporting obligations concerning observed off-duty and off-site conduct that are both intrusive and ill-defined”;31 and (2) that the alleged changes to the terms and conditions of its members’ employment, as endorsed or specified in the Confirmatory Order, were undertaken “without affording [its members] their statutorily-protected right to engage in bargaining…” Exelon remarks that “The injury-in-fact, therefore, must generally involve potential public health and safety concerns such as radiological or environmental harm. Contrary to this requirement, Local 15 has not articulated a distinct and palpable injury. Further, even if had articulated a legitimate injury to a statutory interest in negotiation, that interest is not within the NRC’s statutory zone of interests the actions endorsed in the Confirmatory Order do not represent any material change to NRC requirements for the scope of Exelon’s BOP. Aberrant behavior reflecting on the trustworthiness and reliability of personnel with unescorted access has long been the subject of required reporting—whether it occurs on-site or off, or relates to conduct on-site, or off. / Pursuant to NRC regulations, all commercial nuclear power plant licensees, including Exelon, must have an approved physical security plan that provides protection against radiological sabotage and unreasonable risk to the public health and safety

EXELON’S ANSWER OPPOSING THE PETITION TO INTERVENE AND HEARING REQUEST FILED BY LOCAL UNION NO. 15, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIOhttp://pbadupws.nrc.gov/docs/ML1402/ML14024A692.pdf

Excerpted from: “IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION EXELON GENERATION COMPANY, LLC, Plaintiff, vs. Case No. 15 C 309 LOCAL 15, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Local 15, International Brotherhood of Electrical Workers, AFL-CIO, filed grievances against Exelon Generation Company, LLC on behalf of six employees for imposing upon them a requirement of complete abstinence from alcohol. Exelon imposed this requirement upon each of the employees pursuant to the recommendations of its Substance Abuse Expert in her role within its Fitness For Duty program, which is mandated by Nuclear Regulatory Commision (NRC) regulations.

Exelon has filed suit against Local 15 seeking a declaratory judgment that the union cannot challenge fitness-for-duty determinations by filing grievances or seeking arbitration under the dispute resolution procedure established by the parties’ collective bargaining agreement (CBA). Local 15 responds that the CBA requires arbitration of the dispute and that any disagreement about the dispute’s arbitrability must itself be arbitrated. Both parties have moved for summary judgment. For the reasons stated below, the Court grants Local 15’s motion and denies Exelon’s motion.1

Background

Exelon is in the business of power generation and supply. It owns and operates nuclear power plants in Illinois, Pennsylvania, and New Jersey. It is licensed to conduct nuclear power generation by the NRC and is subject to the agency’s regulations. One such set of regulations requires all commercial nuclear power plant licensees to maintain an approved Fitness For Duty (FFD) program. This program must “provide reasonable assurance that individuals are trustworthy and reliable as demonstrated by the avoidance of substance abuse.” 10 C.F.R. § 26.23(a). It must also “provide reasonable assurance that individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties.” Id. § 26.23(b).

Like other nuclear power plant operators, Exelon requires employees working in its nuclear power generating facilities to acquire unescorted access authorization as a condition of their employment. NRC regulations require that when there are indications that an individual with unescorted access “may be in violation of the licensee’s or other entity’s FFD policy or is otherwise unable to safely and competently perform his or her duties,” that individual must undergo an evaluation called a “determination of fitness.” Id. § 26.189(a). This determination of fitness must be carried out by a qualified Substance Abuse Expert (SAE) when an employee’s violation of the FFD program involves substance abuse. Id. §§ 26.187, 26.189(a)(1). NRC regulations provide that a qualified SAE “shall evaluate individuals who have violated the substance abuse provisions of an FFD policy and make recommendations concerning education, treatment, return to duty, followup drug and alcohol testing, and aftercare.” Id. § 26.187(g). An SAE has the obligation “to protect public health and safety and the common defense and security by professionally evaluating the individual and recommending appropriate education/treatment, follow-up tests, and aftercare.” Id. In order to “ensure consistency and continuity in the treatment of an individual who may be undergoing treatment, aftercare, and followup testing,” 70 Fed. Reg. No. 165, 50442, 50575 (Aug. 25, 2005), NRC regulations strictly limit who may review or revise an SAE’s evaluation:

Neither the individual nor licensees and other entities may seek a second determination of fitness if a determination of fitness under this part has already been performed by a qualified professional employed by or under contract to the licensee or other entity. After the initial determination of fitness has been made, the professional may modify his or her evaluation and recommendations based on new or additional information from other sources including, but not limited to, the subject individual, another licensee or entity, or staff of an education or treatment program. Unless the professional who made the initial determination of fitness is no longer employed by or under contract to the licensee or other entity, only that professional is authorized to modify the evaluation and recommendations.10 C.F.R. § 26.189(d).

Exelon is required to submit to NRC audit at least once every twenty-four months. The NRC last audited Exelon’s FFD program in October 2014 and approved it as compliant with the agency’s regulations. Among other things, NRC inspectors verified that Exelon’s SAE was qualified and that the company’s FFD program met the requirements of 10 C.F.R. § 26. pp.1-3

Between May 2012 and August 2013, Local 15 filed grievances against Exelon on behalf of six separate employees who received complete abstinence letters. The grievances stated:2

May 1, 2012 Grievance: “The Company has placed a permanent abstinence alcohol requirement/expectation on [the grieving employee] in order to maintain his Nuclear access. ‘This requirement/expectation is not required by any standard and affects his ability to participate in legal off site activities.'” Id., Ex. D at 95.

July 3, 2012 Grievance: “The Company has placed a permanent alcohol requirement on [the grieving employee] in order to obtain and maintain his access to Exelon nuclear facilities. This requirement is not required by any standard and affects [the grieving employee’s] ability to participate in legal off-site activities.” Id. at 96.

September 25, 2012 Grievance: “[The grieving employee] received an unjust ‘Complete Abstinence Letter’ from Access Authorization Fitness for Duty Program Manager-Susan Techau and Exelon’s MRO in order to maintain unescorted access to Exelon Nuclear Generating Stations.” Id. at 97.

April 30, 2013 Grievance: “[The grieving employee] has received an abstinence letter concerning alcohol consumption that restricts his ability to conduct legal activities

2 Information identifying the employees has been redacted from the records presented to the Court.

while off of Company time.” Id. at 98.

May 28, 2013 Grievance: “On April 30, 2013, [the grieving employee] was informed through certified mail that he has to abstain from alcohol consumption and intoxicating substances during non work hours, work hours, holidays and weekends. This condition must be maintained to be employed with Exelon. Local 15 feels this is excessive and needs to be removed from his file.” Id. at 99.

August 6, 2013 Grievance: “[The grieving employee] has received an unjust ‘Complete Abstinence Letter’ from Access Authorization fitness for duty Manager Susan Techau and Exelon MRO in order to maintain unescorted access to Exelon Nuclear Generating Station’s [sic]. The Union Demands [sic] this requirement/letter be removed from [the grieving employee’s] record.” Id. at 100.

One of the grievances proceeded through to arbitration, which was set for early February 2015. Exelon objected to the filing of the grievances and refused to participate in the arbitration. It filed suit in this Court seeking a declaratory judgment, and the arbitrator stayed arbitration proceedings pending resolution of this lawsuit.

In its complaint, Exelon asserts that NRC regulations forbid anyone other than the SAE from rescinding the recommendations made in a determination of fitness and that Local 15’s grievances necessarily would require an arbitrator to do just that. Exelon seeks a declaration that (1) only a court may determine whether NRC regulations preclude arbitration of FFD disputes like the ones presented in the grievances; (2) only the SAE may make determinations of fitness pursuant to NRC regulations; and (3) determinations of fitness made by the SAE are not subject to the CBA’s grievance
procedure.
” pp.6-7
Exelon Generation Company LLC v. Local 15, International Brotherhood of Electrical Workers, AFL-CIO, Case No. 15 C 309, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION (Document may easily be found online at various sites with a search.)

Home > Public Involvement > Public Meetings > Schedule
Public Meeting Schedule: Meeting Details
Purpose
This meeting has two purposes: (1) provide information to the public about the NRC rulemaking activity on the role of third parties in licensee access authorization and fitness-for-duty determinations; and (2) offer an opportunity for the public to express views on this rulemaking activity.
Meeting Dates and Times
11/16/16
1:00PM – 4:00PM
Meeting Location
NRC One White Flint North
11555 Rockville Pike
Commission Hearing Room
Rockville MD
Webinar
Webinar Link:https://attendee.gotowebinar.com/register/5420377198122466820
Webinar Meeting Number:None
Webinar Password:None
Contact
Daniel Doyle
301-415-3748

Participation Level
Category 3
NRC Participants
NRC Staff
External Participants
Public
Docket Numbers – Facility Names

Related Documents
ML16291A028 – 11/16/2016 – NRC Presentation “Role of Third Parties in Access Authorization and Fitness-for-Duty Determinations.

ML16308A456 – 11/16/2016 Notice of Category 3 Public Meeting on Role of Third Parties in Access Authorization and Fitness-for-Duty Determinations Rulemaking

Teleconference
Bridge Number: 8885666307
Passcode: 6848401
Comments
Attendees are encouraged to review the presentation (available under Related Documents) prior to the meeting. Members of the public that will attend the meeting in person may pre-register for a visitor security badge. Those interested in pre-registering should e-mail the meeting contact at daniel.doyle@nrc.gov as soon as possible, but no later than November 14, 2016. Please provide name and company or organization for each attendee. Arrive 30 minutes early to allow time for security registration.
http://meetings.nrc.gov/pmns/mtg?do=details&Code=20161393

Photo credit: Green beer on St. Patrick’s Day
Date 17 March 2007, 18:23
Author SpaceAgeSage from USA
Creative Commons BY SpaceAgeSage, Flickr via Wikimedia, Cropped: