S T A T E O F N E W Y O R K ________________________________________________________________________ 1593 2011-2012 Regular Sessions I N S E N A T E January 10, 2011 ___________ 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: 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 S 2. The public authorities law is amended by adding a new section 20 1873 to read as follows: 21 S 1873. NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM. 1. 22 "EMPLOYEES AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY" MEANS 23 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. LBD02420-01-1 S. 1593 2 1 ELECTRIC GENERATING FACILITIES, INCLUDING BUT NOT LIMITED TO: FULL-TIME 2 AND PART-TIME EMPLOYEES, CONTRACTORS, THOSE EMPLOYEES ON PROBATION, AND 3 TEMPORARY EMPLOYEES. 4 2. THE AUTHORITY, AFTER CONSULTATION WITH THE UNITED STATES NUCLEAR 5 REGULATORY COMMISSION, THE CHAIR OF THE PUBLIC SERVICE COMMISSION, AND 6 THE COMMISSIONER OF THE DEPARTMENT OF LABOR, SHALL ESTABLISH A NUCLEAR 7 WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM. 8 3. THE NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM SHALL 9 INCLUDE, AT A MINIMUM, THE FOLLOWING PROVISIONS: 10 (A) THE AUTHORITY SHALL EVALUATE AND COMMENT ON WHISTLEBLOWER PROGRAMS 11 PROPOSED BY OPERATORS OF NUCLEAR-POWERED ELECTRIC GENERATING FACILITIES 12 PURSUANT TO SECTION ONE THOUSAND FIVE OF THIS CHAPTER AND SECTION 13 SIXTY-FIVE OF THE PUBLIC SERVICE LAW; 14 (B) THE AUTHORITY SHALL ESTABLISH TOLL-FREE TELEPHONE AND FACSIMILE 15 LINES AVAILABLE TO CONTRACTORS, ADVOCATES SHIELDING THE IDENTITY OF 16 INSIDE WHISTLEBLOWERS, AND ALL PERSONS WITHIN THE STATE OF NEW YORK'S 17 NUCLEAR INDUSTRY WHO HAVE KNOWLEDGE OF ISSUES THAT AFFECT PUBLIC HEALTH 18 AND SAFETY. THE AUTHORITY SHALL OFFER: 19 (I) ADVICE REGARDING THE EMPLOYEE'S RIGHTS UNDER APPLICABLE STATE AND 20 FEDERAL LAWS AND ADVICE AND OPTIONS AVAILABLE TO ALL PERSONS; 21 (II) AN OPPORTUNITY FOR CONTRACTORS, ADVOCATES SHIELDING THE IDENTITY 22 OF INSIDE WHISTLEBLOWERS, AND ALL PERSONS WITHIN THE STATE OF NEW YORK'S 23 NUCLEAR INDUSTRY TO IDENTIFY CONCERNS REGARDING ANY SAFETY ISSUE AT A 24 NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, INCLUDING BUT NOT LIMITED 25 TO ANY VIOLATIONS OR POTENTIAL VIOLATIONS OF REGULATIONS OF THE NUCLEAR 26 REGULATORY COMMISSION; 27 (III) THE OPTION OF CONTACTING A NEUTRAL CONSULTANT FOR THE PURPOSE OF 28 SEEKING UNBIASED, NON-GOVERNMENTAL INFORMATION TO HELP RESOLVE SAFETY 29 CONCERNS; 30 (C) ANY COMMUNICATIONS BETWEEN AN EMPLOYEE AND THE AUTHORITY PURSUANT 31 TO THIS SECTION SHALL BE HELD STRICTLY CONFIDENTIAL BY THE AUTHORITY, 32 UNLESS THE EMPLOYEE SPECIFICALLY WAIVES IN WRITING THE RIGHT TO CONFI- 33 DENTIALITY (THE PERSON ALLEGING A SAFETY VIOLATION IS NOT REQUIRED TO 34 IDENTIFY HIMSELF/HERSELF) TO ANY ENTITY, INCLUDING THE NUCLEAR REGULATO- 35 RY COMMISSION; 36 (D) THE AUTHORITY SHALL PERFORM A PRELIMINARY EVALUATION OF ANY SAFETY 37 CONCERN IDENTIFIED BY A CALLER WITHIN SEVENTY-TWO HOURS AND GIVE THE 38 CALLER EVALUATION RIGHTS IF HE OR SHE SO DESIRES AND CONDUCT FOLLOW-UP 39 REPORTS EVERY TWO WEEKS THEREAFTER FOR AN APPROPRIATE LENGTH OF TIME TO 40 BE DETERMINED BY THE AUTHORITY; 41 (E) REGARDING ANY CONCERN FOR WHICH THE AUTHORITY LACKS SUFFICIENT 42 EXPERTISE TO REACH A CONCLUSION OR WHICH, IN THE AUTHORITY'S JUDGMENT, 43 REPRESENTS A SIGNIFICANT PUBLIC HEALTH OR SAFETY CONCERN, THE AUTHORITY 44 SHALL CONTACT THE UNITED STATES NUCLEAR REGULATORY COMMISSION, SHALL 45 COMMUNICATE SUCH CONCERN, AND SHALL MAINTAIN COMMUNICATIONS WITH THE 46 COMMISSION AND THE CALLER, WHENEVER POSSIBLE, REGARDING ANY INVESTI- 47 GATION OF SUCH CONCERN; AND 48 (F) THE AUTHORITY SHALL CONSULT WITH THE DEPARTMENT OF LAW REGARDING 49 ANY EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY WHO MAY 50 HAVE RECOURSE TO AN ACTION PURSUANT TO SECTION SEVEN HUNDRED FORTY OF 51 THE LABOR LAW OR SECTION SEVENTY-FIVE-B OF THE CIVIL SERVICE LAW. 52 4. WHETHER OR NOT THE AUTHORITY PROCEEDS, THE WHISTLEBLOWER, IF IDEN- 53 TIFIED OR THE ADVOCATE WHO IS SHIELDING THE IDENTITY OF AN INSIDE WHIST- 54 LEBLOWER, SHALL HAVE STANDING TO LITIGATE AND SHALL BE ENTITLED TO EXPE- 55 DITED PROCEEDINGS IN THE COURTS OF THIS STATE WITHOUT REGARD TO HAVING 56 EXHAUSTED ADMINISTRATIVE REMEDIES. S. 1593 3 1 S 3. Section 1005 of the public authorities law is amended by adding 2 a new subdivision 17 to read as follows: 3 17. AT EACH NUCLEAR-POWERED ELECTRIC GENERATING FACILITY OWNED OR 4 OPERATED BY THE AUTHORITY, THE AUTHORITY SHALL ESTABLISH AND IMPLEMENT A 5 WHISTLEBLOWER PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS 6 SUBDIVISION, THE AUTHORITY SHALL SUBMIT TO THE NEW YORK STATE ENERGY 7 RESEARCH AND DEVELOPMENT AUTHORITY A PROPOSED PLAN FOR A PROGRAM TO 8 IMPLEMENT THE PURPOSES OF THIS SUBDIVISION. SUCH PROGRAM SHALL INCLUDE, 9 AT A MINIMUM: 10 (A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU- 11 NICATING SAFETY CONCERNS THAT AFFECT PUBLIC HEALTH AND SAFETY; 12 (B) EDUCATION REGARDING EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO 13 APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS, INCLUDING, TO THE 14 EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI- 15 NENT LOCATIONS WITHIN THE FACILITY OF THE TOLL-FREE TELEPHONE NUMBER 16 WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP- 17 MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM 18 ESTABLISHED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE OF THIS 19 CHAPTER. 20 S 4. Section 65 of the public service law is amended by adding a new 21 subdivision 14 to read as follows: 22 14. AT EACH NUCLEAR-POWERED ELECTRIC GENERATING FACILITY OWNED OR 23 OPERATED BY AN ELECTRIC CORPORATION, THE CORPORATION SHALL ESTABLISH AND 24 IMPLEMENT A WHISTLEBLOWER PROGRAM. WITHIN SIX MONTHS OF THE EFFECTIVE 25 DATE OF THIS SUBDIVISION, THE CORPORATION SHALL SUBMIT TO THE NEW YORK 26 STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY A PROPOSED PLAN FOR A 27 PROGRAM TO IMPLEMENT THE PURPOSES OF THIS SUBDIVISION. SUCH PROGRAM 28 SHALL INCLUDE, AT A MINIMUM: 29 (A) OPPORTUNITY FOR ACCESS TO SENIOR MANAGEMENT FOR PURPOSES OF COMMU- 30 NICATING SAFETY CONCERNS; 31 (B) EDUCATION REGARDING EMPLOYEE RIGHTS AND PROTECTIONS PURSUANT TO 32 APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS, INCLUDING, TO THE 33 EXTENT PERMITTED BY THE NUCLEAR REGULATORY COMMISSION, DISPLAY AT PROMI- 34 NENT LOCATIONS WITHIN THE FACILITY OF THE TOLL-FREE TELEPHONE NUMBER 35 WHICH PROVIDES ACCESS TO THE NEW YORK STATE ENERGY RESEARCH AND DEVELOP- 36 MENT AUTHORITY'S NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE PROGRAM. 37 S 5. Paragraph (a) of subdivision 2 of section 740 of the labor law, 38 as amended by chapter 442 of the laws of 2006, is amended to read as 39 follows: 40 (a) discloses, or threatens to disclose to a supervisor or to a public 41 body an activity, policy or practice of the employer that is in 42 violation of law, rule or regulation which violation creates and 43 presents a substantial and specific danger to the public health or safe- 44 ty, or which constitutes health care fraud, OR, IN THE CASE OF AN 45 EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, DISCLOSES OR 46 THREATENS TO DISCLOSE ANY PUBLIC HEALTH OR SAFETY CONCERN, REGARDLESS OF 47 WHETHER OR NOT SUCH CONCERN RELATES TO A VIOLATION OF A LAW, RULE, OR 48 REGULATION; 49 S 6. Subdivision 3 of section 740 of the labor law is amended by 50 adding a new undesignated paragraph to read as follows: 51 THIS SUBDIVISION SHALL NOT APPLY TO ANY DISCLOSURE MADE BY AN EMPLOYEE 52 AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, AS DEFINED PURSUANT 53 TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE OF THE PUBLIC AUTHORITIES LAW, 54 WHO BELIEVES IN GOOD-FAITH THAT A DISCLOSURE TO A SUPERVISOR WOULD BE 55 INCONSISTENT WITH THE FEDERAL OBSTRUCTION OF JUSTICE LAWS CODIFIED AT 18 56 U.S.C. 1512 OR THE ATOMIC ENERGY ACT/ENERGY REORGANIZATION ACT. S. 1593 4 1 S 7. Paragraph (c) of subdivision 1 of section 75-b of the civil 2 service law, as added by chapter 660 of the laws of 1984, is amended to 3 read as follows: 4 (c) "Governmental body" shall mean (i) an officer, employee, agency, 5 department, division, bureau, board, commission, council, authority or 6 other body of a public employer, (ii) employee, committee, member, or 7 commission of the legislative branch of government, (iii) a represen- 8 tative, member or employee of a legislative body of a county, town, 9 village or any other political subdivision or civil division of the 10 state, (iv) a law enforcement agency or any member or employee of a law 11 enforcement agency, [or] (v) the judiciary or any employee of the judi- 12 ciary, (VI) EMPLOYEES AT A NUCLEAR-POWERED ELECTRIC GENERATING FACILITY, 13 OR (VII) THE UNITED STATES NUCLEAR REGULATORY COMMISSION. 14 S 8. Paragraph (a) of subdivision 2 of section 75-b of the civil 15 service law, as amended by chapter 899 of the laws of 1986, is amended 16 to read as follows: 17 (a) A public employer shall not dismiss or take other disciplinary or 18 other adverse personnel action against a public employee regarding the 19 employee's employment because the employee discloses to a governmental 20 body information: (i) regarding a violation of a law, rule or regulation 21 which violation creates and presents a substantial and specific danger 22 to the public health or safety; [or] (ii) which the employee reasonably 23 believes to be true and reasonably believes constitutes an improper 24 governmental action; OR (III) FOR AN EMPLOYEE AT A NUCLEAR-POWERED ELEC- 25 TRIC GENERATING FACILITY, AS DEFINED PURSUANT TO SECTION EIGHTEEN 26 HUNDRED SEVENTY-THREE OF THE PUBLIC AUTHORITIES LAW, WHICH RELATES TO A 27 PUBLIC HEALTH OR SAFETY CONCERN, REGARDLESS OF WHETHER OR NOT SUCH 28 CONCERN RELATES TO A VIOLATION OF LAW, RULE, OR REGULATION. "Improper 29 governmental action" shall mean any action by a public employer or 30 employee, or an agent of such employer or employee, which is undertaken 31 in the performance of such agent's official duties, whether or not such 32 action is within the scope of his employment, and which is in violation 33 of any federal, state or local law, rule or regulation. 34 S 9. Paragraph (b) of subdivision 2 of section 75-b of the civil 35 service law, as added by chapter 660 of the laws of 1984, is amended to 36 read as follows: 37 (b) Prior to disclosing information pursuant to paragraph (a) of this 38 subdivision, an employee shall have made a good faith effort to provide 39 the appointing authority or his or her designee the information to be 40 disclosed and shall provide the appointing authority or designee a 41 reasonable time to take appropriate action unless there is imminent and 42 serious danger to public health or safety. For the purposes of this 43 subdivision, an employee who acts pursuant to this paragraph shall be 44 deemed to have disclosed information to a governmental body under para- 45 graph (a) of this subdivision. THIS PARAGRAPH SHALL NOT APPLY TO ANY 46 DISCLOSURE MADE BY AN EMPLOYEE AT A NUCLEAR-POWERED ELECTRIC GENERATING 47 FACILITY, AS DEFINED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVENTY-THREE 48 OF THE PUBLIC AUTHORITIES LAW. 49 S 10. Section 63 of the executive law is amended by adding a new 50 subdivision 16 to read as follows: 51 16. BRING, UPON THE RECOMMENDATION OF THE NEW YORK STATE ENERGY 52 RESEARCH AND DEVELOPMENT AUTHORITY, ACTIONS PURSUANT TO SECTION SEVEN 53 HUNDRED FORTY OF THE LABOR LAW AND SECTION SEVENTY-FIVE-B OF THE CIVIL 54 SERVICE LAW ON BEHALF OF EMPLOYEES AT NUCLEAR-POWERED ELECTRIC GENERAT- 55 ING FACILITIES, AS DEFINED PURSUANT TO SECTION EIGHTEEN HUNDRED SEVEN- 56 TY-THREE OF THE PUBLIC AUTHORITIES LAW. S. 1593 5 1 S 11. This act shall take effect immediately.