THE NEED FOR NUCLEAR WHISTLEBLOWER PROTECTION AT NY'S 6 COMMERICAL REACTORS 

New York State must take steps to better protect safety-conscious workers at nuclear power plants. According to 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 safety-conscious nuclear power plant workers. The inadequacies of New York's 1984 "Whistleblower Statute" make true protection in New York all but non-existent. The weaknesses in the 1984 statute have led some experts to note that whistleblower protection in New York is all but non-existent. Unlike almost all other whistleblower laws, the New York statute requires not only a "good faith" and reasonable belief that a "law, rule or regulation" has in fact been violated, but the employee must also demonstrate an actual violation. This requirement inhibits the disclosure of potentially improper conduct and creates a very difficult element of proof - one that could require an employee to hire expensive experts and conduct a technical trial-within-a-trial in order to demonstrate illegality. 

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. 

In light of electric utility deregulation, there has never been a greater need for a program that protects safety-conscious workers ("whistleblowers"). Deregulation exposes nuclear power plant operators and its workforce to the competitive pressures of the new energy marketplace. Recent concerns raised by employees at the Indian Point 2 and 3 nuclear power plants clearly indicate the negative impact that deregulation is having on worker health and safety. The assertion that deregulation is negatively impacting workers is further supported by a report released in January 2001 by the Nuclear Regulatory Commission's Office of Investigations which shows that the number of worker discrimination allegations at the national level is rising (80 in 1998, 86 in 1999, and 98 in 2000). 

Employees working at nuclear power plants should not feel pressured or intimidated by their supervisors in airing concerns. The controversy that has swarmed about the Indian Point nuclear reactors has shed light on the suppression of safety conscious employees and worker health and safety issues. Recent concerns raised by employees at the Indian Point 2 and 3 nuclear power plants clearly indicate the need for stronger nuclear whistleblower protection. A report filed in late 2000 by an employee at Con Edison's Indian Point 2 (IP-2) plant, indicates that supervisory disdain for employee concerns has created a "chilling effect" which discourages safety-conscious workers from reporting problems. In February of this year - 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, specifically, 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, worker health and safety were compromised to meet a refueling deadline and over 180 workers were radioactively contaminated. In fact, in an interview with New York City TV station WABC, a plant whistleblower explained that a great deal of pressure was placed on employees to finish the refueling quickly to impress a potential buyer, Entergy Nuclear, Inc. (Entergy Nuclear ultimately purchased IP-3 and is now in the process of buying IP-1 and IP-2.) This situation might have been avoided if workers felt more comfortable about raising concerns. A separate incident at IP-3 involved the harassment of an employee that had raised concerns about the plants corrective action process and its effectiveness in identifying problems and ensuring their timely resolution. The employee, after raising safety concerns, was treated with such sustained abuse that she ultimately had to transfer out of her work group. 

WHAT WOULD THIS BILL DO? 

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 whistleblower access and assistance program. The nuclear whistleblower access and assistance program provides safety-conscious employees with such protections as: 
* A provision that would amend the labor law so that an employee can still have a claim for employer retaliation, regardless of whether their safety concern relates to an actual violation of a law or regulation. 
* A requirement that New York State establish a toll-free telephone and facsimile line that is available to all persons within the state's nuclear industry that offers: advice regarding the employee's rights under applicable state and federal laws and advice and options available to all persons, an opportunity to identify concerns regarding any safety issue at a nuclear reactor, and the option of contacting a neutral consultant for the purpose of seeking unbiased, non-governmental information to help resolve safety concerns. 
* A requirement that a preliminary evaluation of any safety concern identified by a caller be conducted within 72 hours. The caller would have an opportunity to comment upon the preliminary evaluation. In addition, follow-up reports would be conducted every two weeks after the preliminary evaluation. 
* Provisions that strengthens previous confidentiality provisions designed to shield the identity of inside whistleblowers and all persons within the state's nuclear industry who have knowledge of issues that affect public health and safety. 
* Provisions that would protect independent contractors. (Under the 1984 statute, independent contractors are not protected.) Bill Status: The bill is sponsored by Assemblyman Richard Brodsky (A. 528) and Senator Thomas Morahan (S. 521). Bill History: In 2000, this bill unanimously passed the state Assembly, but stalled in the Senate. In the Assembly, Richard Brodsky is the sponsor of this bill. He has sponsored this legislation over the past several years. As a State Senator in the early 1990's, George Pataki sponsored this legislation . 

TALKING POINTS 

* 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; but, with this bill, New York has a unique opportunity to improve protections for safety-conscious employees at the six nuclear power plants in New York State. 
* In this era of electric utility deregulation - which nuclear safety watchdogs believe will force plant operators to cut costs in a manner that jeopardizes worker health and public safety - protection of responsible workers is of paramount concern. 
* S. 521 - A. 528 not only protects those working on the frontlines, it safeguards the public health and safety of millions of people who live within a short distance of New York's six commercial reactors - i.e. about eight percent of the nation's population live within 50 miles of the two Indian Point nuclear plants. 
* Existing federal protections for whistleblowers are not enough; state protections are needed too. Although federal protections exist, the Supreme Court and Congress have recognized that states, like New York, are free to provide additional protections. 
* In the last few years, numerous incidents involving the harassment of safety-conscious employees at NY nuclear power plants have occurred. Given the recent troubles at the Indian Point reactors, there has never been a greater need for a whistleblower access and assistance program, as described in S. 521. 
* The Nuclear Regulatory Commission admits that it can only oversee a small portion of the nuclear industry and relies on plant employees to identify potential safety problems. By passing this legislation, the New York State legislature will help protect nuclear power plant workers who play a vital role in protecting the health and safety of the general public. 
* While nuclear whistleblowers are explicitly protected under Section 211 of the Energy Reorganization Act, it is necessary to have protections at the state level as well. The U.S. Supreme Court and Congress have held that Section 211 does not preempt states from also protecting nuclear whistleblowers. Between 1988 and 1994, the Supreme Court issued three major decisions addressing federal preemption of state law whistleblower remedies. In each case no preemption was found, and the whistleblowers were free to bypass federal statutory remedies and use state law as a source for their protection. 

PRESSURE POINTS 
Calls are needed to members of the New York State Senate requesting the passage of the NUCLEAR WHISTLEBLOWER ACCESS AND ASSISTANCE BILL (S. 521). 

Senator Bruno (Senate Majority Leader) -- 518-455-3191 
Senator Wright (Chair of the Senate Energy & Telecommunications Committee) -- 518-455-2346 
Senator Morahan (Bill's Primary Sponsor) -- Albany Office: 518-455-3261 District Office: 845-425-1818 

To be connected to your respective representative, call the Senate switchboard at 518-455-2800. 

Kyle Rabin 
Nuclear Energy Policy Project Director 
Air & Energy Program Associate 
Environmental Advocates 
353 Hamilton Street 
Albany, NY 12210 
Phone: 518-462-5526 ext. 240 F 
ax: 518-427-0381 
E-Mail: krabin@envadvocates.org
Website: www.envadvocates.org