senate Bill S3267

Amended

Establishes a nuclear whistleblower access and assistance program to promote public health and safety

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 31 / Jan / 2013
    • REFERRED TO ENERGY AND TELECOMMUNICATIONS
  • 08 / Jan / 2014
    • REFERRED TO ENERGY AND TELECOMMUNICATIONS
  • 24 / Jan / 2014
    • AMEND AND RECOMMIT TO ENERGY AND TELECOMMUNICATIONS
  • 24 / Jan / 2014
    • PRINT NUMBER 3267A

Summary

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.

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Bill Details

Versions:
S3267
S3267A
Legislative Cycle:
2013-2014
Current Committee:
Senate Energy And Telecommunications
Law Section:
Public Authorities Law
Laws Affected:
Add §1873-a, amd §1005, Pub Auth L; amd §65, Pub Serv L; amd §740, Lab L; amd §75-b, Civ Serv L; amd §63, Exec L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1593A
2009-2010: A5200A
2007-2008: A1378

Sponsor Memo

BILL NUMBER:S3267

TITLE OF BILL: 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

PURPOSE: To establish a program to encourage and protect employees of
nuclear power plants who communicate concerns regarding safety
problems

SUMMARY OF PROVISIONS: This bill would amend the energy law, the
public authorities law, the public service law, the labor law, the
civil service law, and the executive law to establish a nuclear power
plant whistle-blower access and assistance program. The program
contains a number of provisions including: (1) a requirement calling
for the evaluation of whistleblower programs proposed by nuclear power
plant operators, including private companies that are purchasing
reactors in New York State (2) the establishment of a toll-free
telephone line available to employees of nuclear power plants that
will offer advice regarding employee rights and protections pursuant
to state and federal laws and present opportunities for access to
senior management for purposes of communicating safety-related
concerns, and (3) a requirement that a preliminary evaluation of any
safety concern identified by an employee be performed.

JUSTIFICATION: Workers at nuclear plants are commonly referred to as
the "eyes and ears" for the U.S. Nuclear Regulatory Commission (NRC).
The NRC openly admits that it can only oversee a small portion of the
industry's safety issues and relies heavily on nuclear plant employees
to identify potential safety problems to management and, if necessary,
to the NRC. This bill acknowledges that a key element to the safe
operation of nuclear power plants is a work environment that
encourages employees to come forward with any concerns they may have
regarding reactor operational safety. Protection of safety-conscious
workers is of paramount concern, especially in light of electric
utility deregulation, the infusion of market competition into the
energy marketplace, and changes with the NRC's oversight program.

Employees working at nuclear power plants should not feel pressured or
intimidated by their supervisors in airing concerns. Sadly, we have
witnessed the harassment of employees at NY nuclear power plants much
too often. Given the recent troubles at the Indian Point reactors,
there has never been a greater need for such a program. The
controversy that has swarmed about the Indian point reactors has shed
light on the suppression of safety conscious employees and worker
health and safety issues. As stated in a report filed by a
safety-conscious employee at Con Edison's Indian point 2 (IP-2) plant,
there is a "chilling effect" which does not encourage workers to
report problems. According to a March 1, 2001 NEW YORK TIMES article,
an engineer working for a contractor at the IP-2 nuclear plant quit in
a dispute over a safety issue - in particular, the reliability of the
system that triggers automatic shutdowns during equipment. failure.
At the New York Power Authority's Indian point 3 (IP-3) plant, it was
revealed that worker health and safety had been compromised to meet a
refueling deadline - over 180 workers were radioactively contaminated.


According to a whistleblower at the plant, the deadline was set to
impress a potential buyer, Entergy Nuclear, Inc. which ultimately
purchased IP-3 and is now in the process of buying IP-1 and IP-2. This
situation may have been avoided if workers felt more comfortable about
raising concerns.

New York State needs to better protect workers at nuclear power plants
who raise safety concerns. According to Stephen Kohn - one of the
nation's foremost experts on whistleblower law - New York State has
one of the weakest provisions in the nation with respect to providing
adequate protection to whistleblowers. The inadequacies of New York's
"Whistleblower Statute," which was passed in 1984, have led
commentators to note that whistleblower protection in New York is all
but non-existent.

For the sake of public and employee health and safety it is crucial to
have a nuclear whistleblower access and assistance program established
immediately.

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE: Immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3267

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            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

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:

  Section  1.  The legislature finds that safe operation of the publicly
and privately owned nuclear-powered electric generating facilities with-
in the state is a matter of paramount public  concern.  The  legislature
further  finds  that  an essential component of any safety strategy is a
program which assures that employees who have  first-hand  knowledge  of
potential  safety problems can freely communicate their concerns without
fear of retaliation.  Although laws and regulations exist  at  both  the
state and federal level to protect whistleblowers, the legislature finds
that the purpose served by such laws will be furthered if an affirmative
program  exists  which encourages employees to come forward with safety-
related concerns. The legislature finds that the state, as the owner  of
the  power  plants  operated  by the power authority of the state of New
York, has an interest and obligation to ensure that such facilities  are
being managed in a way that provides the highest possible level of safe-
ty.    The  legislature  also  finds  that  the state has an interest in
protecting and an obligation to protect its citizens from  the  possible
hazards  of  privately owned nuclear-powered electric generating facili-
ties.
  S 2. The public authorities law is amended by  adding  a  new  section
1873-a to read as follows:
  S  1873-A.  NUCLEAR  WHISTLEBLOWER  ACCESS AND ASSISTANCE PROGRAM.  1.
"EMPLOYEES AT A  NUCLEAR-POWERED  ELECTRIC  GENERATING  FACILITY"  MEANS
THOSE  PERSONS  EMPLOYED AT PUBLICLY AND PRIVATELY OWNED NUCLEAR-POWERED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01554-01-3

S. 3267                             2

ELECTRIC GENERATING FACILITIES, INCLUDING BUT NOT LIMITED TO:  FULL-TIME
AND  PART-TIME EMPLOYEES, CONTRACTORS, THOSE EMPLOYEES ON PROBATION, AND
TEMPORARY EMPLOYEES.
  2.  THE  AUTHORITY,  AFTER CONSULTATION WITH THE UNITED STATES NUCLEAR
REGULATORY COMMISSION, THE CHAIR OF THE PUBLIC SERVICE  COMMISSION,  AND
THE  COMMISSIONER  OF THE DEPARTMENT OF LABOR, SHALL ESTABLISH A NUCLEAR
WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM.
  3. THE NUCLEAR  WHISTLEBLOWER  ACCESS  AND  ASSISTANCE  PROGRAM  SHALL
INCLUDE, AT A MINIMUM, THE FOLLOWING PROVISIONS:
  (A) THE AUTHORITY SHALL EVALUATE AND COMMENT ON WHISTLEBLOWER PROGRAMS
PROPOSED  BY OPERATORS OF NUCLEAR-POWERED ELECTRIC GENERATING FACILITIES
PURSUANT TO SECTION ONE  THOUSAND  FIVE  OF  THIS  CHAPTER  AND  SECTION
SIXTY-FIVE OF THE PUBLIC SERVICE LAW;
  (B)  THE  AUTHORITY  SHALL ESTABLISH TOLL-FREE TELEPHONE AND FACSIMILE
LINES AVAILABLE TO CONTRACTORS,  ADVOCATES  SHIELDING  THE  IDENTITY  OF
INSIDE  WHISTLEBLOWERS,  AND  ALL PERSONS WITHIN THE STATE OF NEW YORK'S
NUCLEAR INDUSTRY WHO HAVE KNOWLEDGE OF ISSUES THAT AFFECT PUBLIC  HEALTH
AND SAFETY. THE AUTHORITY SHALL OFFER:
  (I)  ADVICE REGARDING THE EMPLOYEE'S RIGHTS UNDER APPLICABLE STATE AND
FEDERAL LAWS AND ADVICE AND OPTIONS AVAILABLE TO ALL PERSONS;
  (II) AN OPPORTUNITY FOR CONTRACTORS, ADVOCATES SHIELDING THE  IDENTITY
OF INSIDE WHISTLEBLOWERS, AND ALL PERSONS WITHIN THE STATE OF NEW YORK'S
NUCLEAR  INDUSTRY  TO  IDENTIFY CONCERNS REGARDING ANY SAFETY ISSUE AT A
NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, INCLUDING BUT NOT  LIMITED
TO  ANY VIOLATIONS OR POTENTIAL VIOLATIONS OF REGULATIONS OF THE NUCLEAR
REGULATORY COMMISSION;
  (III) THE OPTION OF CONTACTING A NEUTRAL CONSULTANT FOR THE PURPOSE OF
SEEKING UNBIASED, NON-GOVERNMENTAL INFORMATION TO  HELP  RESOLVE  SAFETY
CONCERNS;
  (C)  ANY COMMUNICATIONS BETWEEN AN EMPLOYEE AND THE AUTHORITY PURSUANT
TO THIS SECTION SHALL BE HELD STRICTLY CONFIDENTIAL  BY  THE  AUTHORITY,
UNLESS  THE  EMPLOYEE SPECIFICALLY WAIVES IN WRITING THE RIGHT TO CONFI-
DENTIALITY (THE PERSON ALLEGING A SAFETY VIOLATION IS  NOT  REQUIRED  TO
IDENTIFY HIMSELF/HERSELF) TO ANY ENTITY, INCLUDING THE NUCLEAR REGULATO-
RY COMMISSION;
  (D) THE AUTHORITY SHALL PERFORM A PRELIMINARY EVALUATION OF ANY SAFETY
CONCERN  IDENTIFIED  BY  A  CALLER WITHIN SEVENTY-TWO HOURS AND GIVE THE
CALLER EVALUATION RIGHTS IF HE OR SHE SO DESIRES AND  CONDUCT  FOLLOW-UP
REPORTS  EVERY TWO WEEKS THEREAFTER FOR AN APPROPRIATE LENGTH OF TIME TO
BE DETERMINED BY THE AUTHORITY;
  (E) REGARDING ANY CONCERN FOR WHICH  THE  AUTHORITY  LACKS  SUFFICIENT
EXPERTISE  TO  REACH A CONCLUSION OR WHICH, IN THE AUTHORITY'S JUDGMENT,
REPRESENTS A SIGNIFICANT PUBLIC HEALTH OR SAFETY CONCERN, THE  AUTHORITY
SHALL  CONTACT  THE  UNITED  STATES NUCLEAR REGULATORY COMMISSION, SHALL
COMMUNICATE SUCH CONCERN, AND SHALL  MAINTAIN  COMMUNICATIONS  WITH  THE
COMMISSION  AND  THE  CALLER,  WHENEVER POSSIBLE, REGARDING ANY INVESTI-
GATION OF SUCH CONCERN; AND
  (F) THE AUTHORITY SHALL CONSULT WITH THE DEPARTMENT OF  LAW  REGARDING
ANY  EMPLOYEE  AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY WHO MAY
HAVE RECOURSE TO AN ACTION PURSUANT TO SECTION SEVEN  HUNDRED  FORTY  OF
THE LABOR LAW OR SECTION SEVENTY-FIVE-B OF THE CIVIL SERVICE LAW.
  4.  WHETHER OR NOT THE AUTHORITY PROCEEDS, THE WHISTLEBLOWER, IF IDEN-
TIFIED OR THE ADVOCATE WHO IS SHIELDING THE IDENTITY OF AN INSIDE WHIST-
LEBLOWER, SHALL HAVE STANDING TO LITIGATE AND SHALL BE ENTITLED TO EXPE-
DITED PROCEEDINGS IN THE COURTS OF THIS STATE WITHOUT REGARD  TO  HAVING
EXHAUSTED ADMINISTRATIVE REMEDIES.

S. 3267                             3

  S  3. Section 1005 of the public authorities  law is amended by adding
a new subdivision 24 to read as follows:
  24.  AT  EACH  NUCLEAR-POWERED  ELECTRIC  GENERATING FACILITY OWNED OR
OPERATED BY THE AUTHORITY, THE AUTHORITY SHALL ESTABLISH AND IMPLEMENT A
WHISTLEBLOWER PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE DATE  OF  THIS
SUBDIVISION,  THE  AUTHORITY  SHALL  SUBMIT TO THE NEW YORK STATE ENERGY
RESEARCH AND DEVELOPMENT AUTHORITY A PROPOSED  PLAN  FOR  A  PROGRAM  TO
IMPLEMENT THE PURPOSES OF THIS SUBDIVISION.  SUCH PROGRAM SHALL INCLUDE,
AT A MINIMUM:
  (A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU-
NICATING SAFETY CONCERNS THAT AFFECT PUBLIC HEALTH AND SAFETY;
  (B)  EDUCATION  REGARDING  EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO
APPLICABLE STATE AND FEDERAL LAWS AND  REGULATIONS,  INCLUDING,  TO  THE
EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI-
NENT  LOCATIONS  WITHIN  THE  FACILITY OF THE TOLL-FREE TELEPHONE NUMBER
WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP-
MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER  ACCESS  AND  ASSISTANCE  PROGRAM
ESTABLISHED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE-A OF THIS
CHAPTER.
  S  4.  Section 65 of the public service law is amended by adding a new
subdivision 14 to read as follows:
  14. AT EACH NUCLEAR-POWERED  ELECTRIC  GENERATING  FACILITY  OWNED  OR
OPERATED BY AN ELECTRIC CORPORATION, THE CORPORATION SHALL ESTABLISH AND
IMPLEMENT  A  WHISTLEBLOWER  PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE
DATE OF THIS SUBDIVISION, THE CORPORATION SHALL SUBMIT TO THE  NEW  YORK
STATE  ENERGY  RESEARCH  AND DEVELOPMENT AUTHORITY A PROPOSED PLAN FOR A
PROGRAM TO IMPLEMENT THE PURPOSES  OF  THIS  SUBDIVISION.  SUCH  PROGRAM
SHALL INCLUDE, AT A MINIMUM:
  (A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU-
NICATING SAFETY CONCERNS;
  (B)  EDUCATION  REGARDING  EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO
APPLICABLE STATE AND FEDERAL LAWS AND  REGULATIONS,  INCLUDING,  TO  THE
EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI-
NENT  LOCATIONS  WITHIN  THE  FACILITY OF THE TOLL-FREE TELEPHONE NUMBER
WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP-
MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM.
  S 5. Paragraph (a) of subdivision 2 of section 740 of the  labor  law,
as  amended  by  chapter  442 of the laws of 2006, is amended to read as
follows:
  (a) discloses, or threatens to disclose to a supervisor or to a public
body an activity,  policy  or  practice  of  the  employer  that  is  in
violation  of  law,  rule  or  regulation  which  violation  creates and
presents a substantial and specific danger to the public health or safe-
ty, or which constitutes health care  fraud,  OR,  IN  THE  CASE  OF  AN
EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, DISCLOSES OR
THREATENS TO DISCLOSE ANY PUBLIC HEALTH OR SAFETY CONCERN, REGARDLESS OF
WHETHER  OR  NOT  SUCH CONCERN RELATES TO A VIOLATION OF A LAW, RULE, OR
REGULATION;
  S 6. Subdivision 3 of section 740 of  the  labor  law  is  amended  by
adding a new undesignated paragraph to read as follows:
  THIS SUBDIVISION SHALL NOT APPLY TO ANY DISCLOSURE MADE BY AN EMPLOYEE
AT  A  NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, AS DEFINED PURSUANT
TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE-A OF  THE  PUBLIC  AUTHORITIES
LAW,  WHO BELIEVES IN GOOD-FAITH THAT A DISCLOSURE TO A SUPERVISOR WOULD
BE INCONSISTENT WITH THE FEDERAL OBSTRUCTION OF JUSTICE LAWS CODIFIED AT
18 U.S.C. 1512 OR THE ATOMIC ENERGY ACT/ENERGY REORGANIZATION ACT.

S. 3267                             4

  S 7. Paragraph (c) of subdivision 1  of  section  75-b  of  the  civil
service  law, as added by chapter 660 of the laws of 1984, is amended to
read as follows:
  (c)  "Governmental  body" shall mean (i) an officer, employee, agency,
department, division, bureau, board, commission, council,  authority  or
other  body  of  a public employer, (ii) employee, committee, member, or
commission of the legislative branch of government,  (iii)  a  represen-
tative,  member  or  employee  of  a legislative body of a county, town,
village or any other political subdivision  or  civil  division  of  the
state,  (iv) a law enforcement agency or any member or employee of a law
enforcement agency, [or] (v) the judiciary or any employee of the  judi-
ciary, (VI) EMPLOYEES AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY,
OR (VII) THE UNITED STATES NUCLEAR REGULATORY COMMISSION.
  S  8.  Paragraph  (a)  of  subdivision  2 of section 75-b of the civil
service law, as amended by chapter 899 of the laws of 1986,  is  amended
to read as follows:
  (a)  A public employer shall not dismiss or take other disciplinary or
other adverse personnel action against a public employee  regarding  the
employee's  employment  because the employee discloses to a governmental
body information: (i) regarding a violation of a law, rule or regulation
which violation creates and presents a substantial and  specific  danger
to  the public health or safety; [or] (ii) which the employee reasonably
believes to be true and  reasonably  believes  constitutes  an  improper
governmental action; OR (III) FOR AN EMPLOYEE AT A NUCLEAR-POWERED ELEC-
TRIC  GENERATING  FACILITY,  AS  DEFINED  PURSUANT  TO  SECTION EIGHTEEN
HUNDRED SEVENTY-THREE-A OF THE PUBLIC AUTHORITIES LAW, WHICH RELATES  TO
A  PUBLIC  HEALTH  OR  SAFETY CONCERN, REGARDLESS OF WHETHER OR NOT SUCH
CONCERN RELATES TO A VIOLATION OF LAW, RULE,  OR  REGULATION.  "Improper
governmental  action"  shall  mean  any  action  by a public employer or
employee, or an agent of such employer or employee, which is  undertaken
in  the performance of such agent's official duties, whether or not such
action is within the scope of his employment, and which is in  violation
of any federal, state or local law, rule or regulation.
  S  9.  Paragraph  (b)  of  subdivision  2 of section 75-b of the civil
service law, as added by chapter 660 of the laws of 1984, is amended  to
read as follows:
  (b)  Prior to disclosing information pursuant to paragraph (a) of this
subdivision, an employee shall have made a good faith effort to  provide
the  appointing  authority  or his or her designee the information to be
disclosed and shall provide  the  appointing  authority  or  designee  a
reasonable  time to take appropriate action unless there is imminent and
serious danger to public health or safety.  For  the  purposes  of  this
subdivision,  an  employee  who acts pursuant to this paragraph shall be
deemed to have disclosed information to a governmental body under  para-
graph  (a)  of  this  subdivision. THIS PARAGRAPH SHALL NOT APPLY TO ANY
DISCLOSURE MADE BY AN EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC  GENERATING
FACILITY,    AS   DEFINED   PURSUANT   TO   SECTION   EIGHTEEN   HUNDRED
SEVENTY-THREE-A OF THE PUBLIC AUTHORITIES LAW.
  S 10. Section 63 of the executive law  is  amended  by  adding  a  new
subdivision 16 to read as follows:
  16.  BRING,  UPON  THE  RECOMMENDATION  OF  THE  NEW YORK STATE ENERGY
RESEARCH AND DEVELOPMENT AUTHORITY, ACTIONS PURSUANT  TO  SECTION  SEVEN
HUNDRED  FORTY  OF THE LABOR LAW AND SECTION SEVENTY-FIVE-B OF THE CIVIL
SERVICE LAW ON BEHALF OF EMPLOYEES AT NUCLEAR-POWERED ELECTRIC  GENERAT-
ING  FACILITIES,  AS DEFINED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVEN-
TY-THREE-A OF THE PUBLIC AUTHORITIES LAW.

S. 3267                             5

  S 11. This act shall take effect immediately.

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