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
________________________________________________________________________
3286--A
2019-2020 Regular Sessions
IN SENATE
February 5, 2019
___________
Introduced by Sens. KRUEGER, LIU, SERRANO -- read twice and ordered
printed, and when printed to be committed to the Committee on Energy
and Telecommunications -- 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:
21 § 1873-a. Nuclear whistleblower access and assistance program. 1.
22 "Employees at a nuclear-powered electric generating facility" means
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08595-03-9
S. 3286--A 2
1 those persons employed at publicly and privately owned nuclear-powered
2 electric generating facilities, including but not limited to: full-time
3 and part-time employees, contractors, those employees on probation, and
4 temporary employees.
5 2. The authority, after consultation with the United States nuclear
6 regulatory commission, the chair of the public service commission, and
7 the commissioner of the department of labor, shall establish a nuclear
8 whistleblower access and assistance program.
9 3. The nuclear whistleblower access and assistance program shall
10 include, at a minimum, the following provisions:
11 (a) the authority shall evaluate and comment on whistleblower programs
12 proposed by operators of nuclear-powered electric generating facilities
13 pursuant to section one thousand five of this chapter and section
14 sixty-five of the public service law;
15 (b) the authority shall establish toll-free telephone and facsimile
16 lines available to contractors, advocates shielding the identity of
17 inside whistleblowers, and all persons within the state of New York's
18 nuclear industry who have knowledge of issues that affect public health
19 and safety. The authority shall offer:
20 (i) advice regarding the employee's rights under applicable state and
21 federal laws and advice and options available to all persons;
22 (ii) an opportunity for contractors, advocates shielding the identity
23 of inside whistleblowers, and all persons within the state of New York's
24 nuclear industry to identify concerns regarding any safety issue at a
25 nuclear-powered electric generating facility, including but not limited
26 to any violations or potential violations of regulations of the nuclear
27 regulatory commission;
28 (iii) the option of contacting a neutral consultant for the purpose of
29 seeking unbiased, non-governmental information to help resolve safety
30 concerns;
31 (c) any communications between an employee and the authority pursuant
32 to this section shall be held strictly confidential by the authority,
33 unless the employee specifically waives in writing the right to confi-
34 dentiality (the person alleging a safety violation is not required to
35 identify himself/herself) to any entity, including the nuclear regulato-
36 ry commission;
37 (d) the authority shall perform a preliminary evaluation of any safety
38 concern identified by a caller within seventy-two hours and give the
39 caller evaluation rights if he or she so desires and conduct follow-up
40 reports every two weeks thereafter for an appropriate length of time to
41 be determined by the authority;
42 (e) regarding any concern for which the authority lacks sufficient
43 expertise to reach a conclusion or which, in the authority's judgment,
44 represents a significant public health or safety concern, the authority
45 shall contact the United States nuclear regulatory commission, shall
46 communicate such concern, and shall maintain communications with the
47 commission and the caller, whenever possible, regarding any investi-
48 gation of such concern; and
49 (f) the authority shall consult with the department of law regarding
50 any employee at a nuclear-powered electric generating facility who may
51 have recourse to an action pursuant to section seven hundred forty of
52 the labor law or section seventy-five-b of the civil service law.
53 4. Whether or not the authority proceeds, the whistleblower, if iden-
54 tified or the advocate who is shielding the identity of an inside whist-
55 leblower, shall have standing to litigate and shall be entitled to expe-
S. 3286--A 3
1 dited proceedings in the courts of this state without regard to having
2 exhausted administrative remedies.
3 § 3. Section 1005 of the public authorities law is amended by adding
4 a new subdivision 28 to read as follows:
5 28. At each nuclear-powered electric generating facility owned or
6 operated by the authority, the authority shall establish and implement a
7 whistleblower program. Within six months of the effective date of this
8 subdivision, the authority shall submit to the New York state energy
9 research and development authority a proposed plan for a program to
10 implement the purposes of this subdivision. Such program shall include,
11 at a minimum:
12 (a) opportunity for access to senior management for purposes of commu-
13 nicating safety concerns that affect public health and safety;
14 (b) education regarding employee rights and protections pursuant to
15 applicable state and federal laws and regulations, including, to the
16 extent permitted by the nuclear regulatory commission, display at promi-
17 nent locations within the facility of the toll-free telephone number
18 which provides access to the New York state energy research and develop-
19 ment authority's nuclear whistleblower access and assistance program
20 established pursuant to section eighteen hundred seventy-three-a of this
21 chapter.
22 § 4. Section 65 of the public service law is amended by adding a new
23 subdivision 16 to read as follows:
24 16. At each nuclear-powered electric generating facility owned or
25 operated by an electric corporation, the corporation shall establish and
26 implement a whistleblower program. Within six months of the effective
27 date of this subdivision, the corporation shall submit to the New York
28 state energy research and development authority a proposed plan for a
29 program to implement the purposes of this subdivision. Such program
30 shall include, at a minimum:
31 (a) opportunity for access to senior management for purposes of commu-
32 nicating safety concerns;
33 (b) education regarding employee rights and protections pursuant to
34 applicable state and federal laws and regulations, including, to the
35 extent permitted by the nuclear regulatory commission, display at promi-
36 nent locations within the facility of the toll-free telephone number
37 which provides access to the New York state energy research and develop-
38 ment authority's nuclear whistleblower access and assistance program.
39 § 5. Paragraph (a) of subdivision 2 of section 740 of the labor law,
40 as amended by chapter 442 of the laws of 2006, is amended to read as
41 follows:
42 (a) discloses, or threatens to disclose to a supervisor or to a public
43 body an activity, policy or practice of the employer that is in
44 violation of law, rule or regulation which violation creates and
45 presents a substantial and specific danger to the public health or safe-
46 ty, or which constitutes health care fraud, or, in the case of an
47 employee at a nuclear-powered electric generating facility, discloses or
48 threatens to disclose any public health or safety concern, regardless of
49 whether or not such concern relates to a violation of a law, rule, or
50 regulation;
51 § 6. Subdivision 3 of section 740 of the labor law is amended by
52 adding a new undesignated paragraph to read as follows:
53 This subdivision shall not apply to any disclosure made by an employee
54 at a nuclear-powered electric generating facility, as defined pursuant
55 to section eighteen hundred seventy-three-a of the public authorities
56 law, who believes in good-faith that a disclosure to a supervisor would
S. 3286--A 4
1 be inconsistent with the federal obstruction of justice laws codified at
2 18 U.S.C. 1512 or the atomic energy act/energy reorganization act.
3 § 7. Paragraph (c) of subdivision 1 of section 75-b of the civil
4 service law, as added by chapter 660 of the laws of 1984, is amended to
5 read as follows:
6 (c) "Governmental body" shall mean (i) an officer, employee, agency,
7 department, division, bureau, board, commission, council, authority or
8 other body of a public employer, (ii) employee, committee, member, or
9 commission of the legislative branch of government, (iii) a represen-
10 tative, member or employee of a legislative body of a county, town,
11 village or any other political subdivision or civil division of the
12 state, (iv) a law enforcement agency or any member or employee of a law
13 enforcement agency, [or] (v) the judiciary or any employee of the judi-
14 ciary, (vi) employees at a nuclear-powered electric generating facility,
15 or (vii) the United States nuclear regulatory commission.
16 § 8. Paragraph (a) of subdivision 2 of section 75-b of the civil
17 service law, as amended by chapter 899 of the laws of 1986, is amended
18 to read as follows:
19 [(a)] A public employer shall not dismiss or take other disciplinary
20 or other adverse personnel action against a public employee regarding
21 the employee's employment because the employee discloses to a govern-
22 mental body information: (i) regarding a violation of a law, rule or
23 regulation which violation creates and presents a substantial and
24 specific danger to the public health or safety; [or] (ii) which the
25 employee reasonably believes to be true and reasonably believes consti-
26 tutes an improper governmental action; or (iii) for an employee at a
27 nuclear-powered electric generating facility, as defined pursuant to
28 section eighteen hundred seventy-three-a of the public authorities law,
29 which relates to a public health or safety concern, regardless of wheth-
30 er or not such concern relates to a violation of law, rule, or regu-
31 lation. "Improper governmental action" shall mean any action by a public
32 employer or employee, or an agent of such employer or employee, which is
33 undertaken in the performance of such agent's official duties, whether
34 or not such action is within the scope of his employment, and which is
35 in violation of any federal, state or local law, rule or regulation.
36 § 9. Section 63 of the executive law is amended by adding a new subdi-
37 vision 17 to read as follows:
38 17. Bring, upon the recommendation of the New York state energy
39 research and development authority, actions pursuant to section seven
40 hundred forty of the labor law and section seventy-five-b of the civil
41 service law on behalf of employees at nuclear-powered electric generat-
42 ing facilities, as defined pursuant to section eighteen hundred seven-
43 ty-three-a of the public authorities law.
44 § 10. This act shall take effect immediately.
