Directs the NYS energy research and development authority and public and private operators of each nuclear-powered electric generating facility to establish a nuclear whistleblower access and assistance program; makes related provisions as to elements of the program and provides that employees of such plants shall not be subject to retaliation; requires authority to investigate reported safety concerns; provides that whistleblowers shall have standing to litigate and may do so without exhaustion of administration remedies; authorizes the attorney general to bring actions to enforce the labor law provisions.
STATE OF NEW YORK
________________________________________________________________________
3267--A
2013-2014 Regular Sessions
IN SENATE
January 31, 2013
___________
Introduced by Sen. KRUEGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations -- recommitted to the Committee on Energy and Telecommuni-
cations in accordance with Senate Rule 6, sec. 8 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the public authorities law, the public service law, the
labor law, the civil service law and the executive law, in relation to
establishing a nuclear whistleblower access and assistance program
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The legislature finds that safe operation of the publicly
2 and privately owned nuclear-powered electric generating facilities with-
3 in the state is a matter of paramount public concern. The legislature
4 further finds that an essential component of any safety strategy is a
5 program which assures that employees who have first-hand knowledge of
6 potential safety problems can freely communicate their concerns without
7 fear of retaliation. Although laws and regulations exist at both the
8 state and federal level to protect whistleblowers, the legislature finds
9 that the purpose served by such laws will be furthered if an affirmative
10 program exists which encourages employees to come forward with safety-
11 related concerns. The legislature finds that the state, as the owner of
12 the power plants operated by the power authority of the state of New
13 York, has an interest and obligation to ensure that such facilities are
14 being managed in a way that provides the highest possible level of safe-
15 ty. The legislature also finds that the state has an interest in
16 protecting and an obligation to protect its citizens from the possible
17 hazards of privately owned nuclear-powered electric generating facili-
18 ties.
19 § 2. The public authorities law is amended by adding a new section
20 1873-a to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01554-02-4
S. 3267--A 2
1 § 1873-a. Nuclear whistleblower access and assistance program. 1.
2 "Employees at a nuclear-powered electric generating facility" means
3 those persons employed at publicly and privately owned nuclear-powered
4 electric generating facilities, including but not limited to: full-time
5 and part-time employees, contractors, those employees on probation, and
6 temporary employees.
7 2. The authority, after consultation with the United States nuclear
8 regulatory commission, the chair of the public service commission, and
9 the commissioner of the department of labor, shall establish a nuclear
10 whistleblower access and assistance program.
11 3. The nuclear whistleblower access and assistance program shall
12 include, at a minimum, the following provisions:
13 (a) the authority shall evaluate and comment on whistleblower programs
14 proposed by operators of nuclear-powered electric generating facilities
15 pursuant to section one thousand five of this chapter and section
16 sixty-five of the public service law;
17 (b) the authority shall establish toll-free telephone and facsimile
18 lines available to contractors, advocates shielding the identity of
19 inside whistleblowers, and all persons within the state of New York's
20 nuclear industry who have knowledge of issues that affect public health
21 and safety. The authority shall offer:
22 (i) advice regarding the employee's rights under applicable state and
23 federal laws and advice and options available to all persons;
24 (ii) an opportunity for contractors, advocates shielding the identity
25 of inside whistleblowers, and all persons within the state of New York's
26 nuclear industry to identify concerns regarding any safety issue at a
27 nuclear-powered electric generating facility, including but not limited
28 to any violations or potential violations of regulations of the nuclear
29 regulatory commission;
30 (iii) the option of contacting a neutral consultant for the purpose of
31 seeking unbiased, non-governmental information to help resolve safety
32 concerns;
33 (c) any communications between an employee and the authority pursuant
34 to this section shall be held strictly confidential by the authority,
35 unless the employee specifically waives in writing the right to confi-
36 dentiality (the person alleging a safety violation is not required to
37 identify himself/herself) to any entity, including the nuclear regulato-
38 ry commission;
39 (d) the authority shall perform a preliminary evaluation of any safety
40 concern identified by a caller within seventy-two hours and give the
41 caller evaluation rights if he or she so desires and conduct follow-up
42 reports every two weeks thereafter for an appropriate length of time to
43 be determined by the authority;
44 (e) regarding any concern for which the authority lacks sufficient
45 expertise to reach a conclusion or which, in the authority's judgment,
46 represents a significant public health or safety concern, the authority
47 shall contact the United States nuclear regulatory commission, shall
48 communicate such concern, and shall maintain communications with the
49 commission and the caller, whenever possible, regarding any investi-
50 gation of such concern; and
51 (f) the authority shall consult with the department of law regarding
52 any employee at a nuclear-powered electric generating facility who may
53 have recourse to an action pursuant to section seven hundred forty of
54 the labor law or section seventy-five-b of the civil service law.
55 4. Whether or not the authority proceeds, the whistleblower, if iden-
56 tified or the advocate who is shielding the identity of an inside whist-
S. 3267--A 3
1 leblower, shall have standing to litigate and shall be entitled to expe-
2 dited proceedings in the courts of this state without regard to having
3 exhausted administrative remedies.
4 § 3. Section 1005 of the public authorities law is amended by adding
5 a new subdivision 25 to read as follows:
6 25. At each nuclear-powered electric generating facility owned or
7 operated by the authority, the authority shall establish and implement a
8 whistleblower program. Within six months of the effective date of this
9 subdivision, the authority shall submit to the New York state energy
10 research and development authority a proposed plan for a program to
11 implement the purposes of this subdivision. Such program shall include,
12 at a minimum:
13 (a) opportunity for access to senior management for purposes of commu-
14 nicating safety concerns that affect public health and safety;
15 (b) education regarding employee rights and protections pursuant to
16 applicable state and federal laws and regulations, including, to the
17 extent permitted by the nuclear regulatory commission, display at promi-
18 nent locations within the facility of the toll-free telephone number
19 which provides access to the New York state energy research and develop-
20 ment authority's nuclear whistleblower access and assistance program
21 established pursuant to section eighteen hundred seventy-three-a of this
22 chapter.
23 § 4. Section 65 of the public service law is amended by adding a new
24 subdivision 16 to read as follows:
25 16. At each nuclear-powered electric generating facility owned or
26 operated by an electric corporation, the corporation shall establish and
27 implement a whistleblower program. Within six months of the effective
28 date of this subdivision, the corporation shall submit to the New York
29 state energy research and development authority a proposed plan for a
30 program to implement the purposes of this subdivision. Such program
31 shall include, at a minimum:
32 (a) opportunity for access to senior management for purposes of commu-
33 nicating safety concerns;
34 (b) education regarding employee rights and protections pursuant to
35 applicable state and federal laws and regulations, including, to the
36 extent permitted by the nuclear regulatory commission, display at promi-
37 nent locations within the facility of the toll-free telephone number
38 which provides access to the New York state energy research and develop-
39 ment authority's nuclear whistleblower access and assistance program.
40 § 5. Paragraph (a) of subdivision 2 of section 740 of the labor law,
41 as amended by chapter 442 of the laws of 2006, is amended to read as
42 follows:
43 (a) discloses, or threatens to disclose to a supervisor or to a public
44 body an activity, policy or practice of the employer that is in
45 violation of law, rule or regulation which violation creates and
46 presents a substantial and specific danger to the public health or safe-
47 ty, or which constitutes health care fraud, or, in the case of an
48 employee at a nuclear-powered electric generating facility, discloses or
49 threatens to disclose any public health or safety concern, regardless of
50 whether or not such concern relates to a violation of a law, rule, or
51 regulation;
52 § 6. Subdivision 3 of section 740 of the labor law is amended by
53 adding a new undesignated paragraph to read as follows:
54 This subdivision shall not apply to any disclosure made by an employee
55 at a nuclear-powered electric generating facility, as defined pursuant
56 to section eighteen hundred seventy-three-a of the public authorities
S. 3267--A 4
1 law, who believes in good-faith that a disclosure to a supervisor would
2 be inconsistent with the federal obstruction of justice laws codified at
3 18 U.S.C. 1512 or the atomic energy act/energy reorganization act.
4 § 7. Paragraph (c) of subdivision 1 of section 75-b of the civil
5 service law, as added by chapter 660 of the laws of 1984, is amended to
6 read as follows:
7 (c) "Governmental body" shall mean (i) an officer, employee, agency,
8 department, division, bureau, board, commission, council, authority or
9 other body of a public employer, (ii) employee, committee, member, or
10 commission of the legislative branch of government, (iii) a represen-
11 tative, member or employee of a legislative body of a county, town,
12 village or any other political subdivision or civil division of the
13 state, (iv) a law enforcement agency or any member or employee of a law
14 enforcement agency, [or] (v) the judiciary or any employee of the judi-
15 ciary, (vi) employees at a nuclear-powered electric generating facility,
16 or (vii) the United States nuclear regulatory commission.
17 § 8. Paragraph (a) of subdivision 2 of section 75-b of the civil
18 service law, as amended by chapter 899 of the laws of 1986, is amended
19 to read as follows:
20 (a) A public employer shall not dismiss or take other disciplinary or
21 other adverse personnel action against a public employee regarding the
22 employee's employment because the employee discloses to a governmental
23 body information: (i) regarding a violation of a law, rule or regulation
24 which violation creates and presents a substantial and specific danger
25 to the public health or safety; [or] (ii) which the employee reasonably
26 believes to be true and reasonably believes constitutes an improper
27 governmental action; or (iii) for an employee at a nuclear-powered elec-
28 tric generating facility, as defined pursuant to section eighteen
29 hundred seventy-three-a of the public authorities law, which relates to
30 a public health or safety concern, regardless of whether or not such
31 concern relates to a violation of law, rule, or regulation. "Improper
32 governmental action" shall mean any action by a public employer or
33 employee, or an agent of such employer or employee, which is undertaken
34 in the performance of such agent's official duties, whether or not such
35 action is within the scope of his employment, and which is in violation
36 of any federal, state or local law, rule or regulation.
37 § 9. Paragraph (b) of subdivision 2 of section 75-b of the civil
38 service law, as added by chapter 660 of the laws of 1984, is amended to
39 read as follows:
40 (b) Prior to disclosing information pursuant to paragraph (a) of this
41 subdivision, an employee shall have made a good faith effort to provide
42 the appointing authority or his or her designee the information to be
43 disclosed and shall provide the appointing authority or designee a
44 reasonable time to take appropriate action unless there is imminent and
45 serious danger to public health or safety. For the purposes of this
46 subdivision, an employee who acts pursuant to this paragraph shall be
47 deemed to have disclosed information to a governmental body under para-
48 graph (a) of this subdivision. This paragraph shall not apply to any
49 disclosure made by an employee at a nuclear-powered electric generating
50 facility, as defined pursuant to section eighteen hundred
51 seventy-three-a of the public authorities law.
52 § 10. Section 63 of the executive law is amended by adding a new
53 subdivision 16 to read as follows:
54 16. Bring, upon the recommendation of the New York state energy
55 research and development authority, actions pursuant to section seven
56 hundred forty of the labor law and section seventy-five-b of the civil
S. 3267--A 5
1 service law on behalf of employees at nuclear-powered electric generat-
2 ing facilities, as defined pursuant to section eighteen hundred seven-
3 ty-three-a of the public authorities law.
4 § 11. This act shall take effect immediately.
