Senate Bill S1924

2009-2010 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Energy And Telecommunications Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to energy and telecommunications
Feb 09, 2009	referred to energy and telecommunications

co-Sponsors

2009-S1924 (ACTIVE) - Details

Current Committee:: Senate Energy And Telecommunications
Law Section:: Public Authorities Law
Laws Affected:: Add §1873, amd §1005, Pub Auth L; amd §65, Pub Serv L; amd §740, Lab L; amd §75-b, Civ Serv L; amd §63, Exec L

2009-S1924 (ACTIVE) - 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

2009-S1924 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1924

 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 public authorities law, the public service
law, the labor law, the civil service law, and the executive law to
establish a nuclear power plant whistleblower 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, Energy
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.

 LEGISLATIVE HISTORY :

2007-08  S.250  Referred to Energy & Telecommunications
2005-06  S.242
2003-04  S.1350
2001-02  S.521A/A.528A
1999-00  S.7354A/A.971A

 FISCAL IMPLICATIONS :
None to the state

 EFFECTIVE DATE :
Immediately.

2009-S1924 (ACTIVE) - Bill Text download pdf

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

                                  1924

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 9, 2009
                               ___________

Introduced by Sens. MORAHAN, DeFRANCISCO, DIAZ -- read twice and ordered
  printed,  and  when printed to be committed to the Committee on Energy
  and Telecommunications

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  the  safe  operation  of  the
publicly and privately owned nuclear-powered electric generating facili-
ties  within  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 safety.  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 gener-
ating facilities.
  S 2. The public authorities law is amended by  adding  a  new  section
1873 to read as follows:
  S  1873.  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.
                                                           LBD06962-01-9

S. 1924                             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. 1924                             3

  S  3. Section 1005 of the public authorities  law is amended by adding
a new subdivision 16 to read as follows:
  16.  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 OF THIS
CHAPTER.
  S 4. Section 65 of the public service law is amended by adding  a  new
subdivision 12 to read as follows:
  12.  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 added 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 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. 1924                             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 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
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 OF THE PUBLIC AUTHORITIES LAW.

S. 1924                             5

  S 11. This act shall take effect immediately.

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Senate Bill S1924

Sponsored By

Archive: Last Bill Status - In Senate Committee Energy And Telecommunications Committee

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co-Sponsors

2009-S1924 (ACTIVE) - Details

2009-S1924 (ACTIVE) - Summary

2009-S1924 (ACTIVE) - Sponsor Memo

2009-S1924 (ACTIVE) - Bill Text download pdf

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Sponsored By

Thomas P. Morahan

Archive: Last Bill Status - In Senate Committee Energy And Telecommunications Committee

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co-Sponsors

John A. DeFrancisco

Ruben Diaz

Liz Krueger

2009-S1924 (ACTIVE) - Details

2009-S1924 (ACTIVE) - Summary

2009-S1924 (ACTIVE) - Sponsor Memo

2009-S1924 (ACTIVE) - Bill Text download pdf

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