[Federal Register Volume 74, Number 199 (Friday, October 16, 2009)]
[Proposed Rules]
[Pages 53190-53193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24929]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 74, No. 199 / Friday, October 16, 2009 /
Proposed Rules
[[Page 53190]]
DEPARTMENT OF ENERGY
10 CFR Part 851
Worker Safety and Health Program: Safety-Conscious Work
Environment
AGENCY: Office of the General Counsel, Department of Energy (DOE).
ACTION: Petition for rulemaking; request for comment.
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SUMMARY: The Department of Energy received a petition from the Hanford
Challenge on August 18, 2009, requesting the initiation of a rulemaking
regarding safety policies at DOE's nuclear facilities. The petition
calls for DOE to establish by regulation a safety program using the
Nuclear Regulatory Commission's ``Safety-Conscious Work Environment''
guidelines as a model. Public comment is requested on whether DOE
should grant the petition and proceed with a rulemaking procedure on
this matter.
DATES: Comments must be postmarked no later than December 15, 2009.
ADDRESSES: Any comments submitted must reference the petition for
rulemaking. Comments may be submitted using any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include ``Petition for
Rulemaking'' in the subject line of the message.
Postal Mail: Steven L. Krahn, Acting Deputy Assistant
Secretary, Safety Management and Operations, Environmental Management
Office, U.S Department of Energy, 1000 Independence Avenue, SW.,
Washington, DC 20585-0121. Please submit one signed original paper
copy.
Hand Delivery/Courier: Steven L. Krahn, Acting Deputy
Assistant Secretary, Safety Management and Operations, Environmental
Management Office, U.S. Department of Energy, 1000 Independence Avenue,
SW., Washington, DC 20585-0121. Please submit one signed original paper
copy.
FOR FURTHER INFORMATION CONTACT: Steven L. Krahn, Acting Deputy
Assistant Secretary, Safety Management and Operations, Environmental
Management Office, U.S. Department of Energy, 1000 Independence Avenue,
SW., Washington, DC 20585-0121, (202) 586-2281, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5
U.S.C. 551 et seq., provides among other things, that ``[e]ach agency
shall give an interested person the right to petition for the issuance,
amendment, or repeal of a rule.'' (5 U.S.C. 553(e)) Pursuant to this
provision of the APA, the Hanford Challenge petitioned DOE for the
issuance of a new rule, as set forth below. In promulgating this
petition for public comment, the Department of Energy is seeking views
on whether it should grant the petition and undertake a rulemaking to
consider the proposal contained in the petition. By seeking comment on
whether to grant this petition, the Department of Energy takes no
position at this time regarding the merits of the suggested rulemaking.
The proposed rulemaking sought by the Hanford Challenge would
institute a ``Safety-Conscious Work Environment'' in DOE's nuclear
facilities, similar to that used by the Nuclear Regulatory Commission
(NRC). The NRC's ``Safety-Conscious Work Environment'' program
encourages employees to report their concerns by guaranteeing that
there will not be any adverse professional repercussions resulting from
such reporting. The Department of Energy seeks public comment on
whether DOE should grant the petition and proceed with a rulemaking
procedure on this issue.
Issued in Washington, DC, on October 8, 2009.
Scott Blake Harris,
General Counsel.
Set forth below is the full text of the Hanford Challenge petition:
Before the U.S. Department of Energy
August 18, 2009
Petition for Rulemaking
Pursuant to the provisions of the Administrative Procedure Act
(APA), 5 U.S.C. 553(e), Hanford Challenge hereby submits a Petition for
Rulemaking to institute procedures and policies to further the
Department's mission of protecting the health and safety of the public
and the workforce by ensuring that employees of the Department of
Energy (DOE) and its contractors and subcontractors are free to raise
concerns without fear of retaliation and reprisal against them.
Specifically, this Petition calls for DOE to take positive steps to
implement a ``Safety Conscious Work Environment'' in its facilities,
using guidelines issued by the Nuclear Regulatory Commission (NRC) for
evaluating and achieving the presence of a ``Safety-Conscious Work
Environment.'' See, NRC Regulatory Issue Summary 2005-18, ``Guidance
for Establishing and Maintaining a Safety Conscious Work Environment'',
Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation,
Office of Nuclear Material Safety and Safeguards, August 25, 2005, and
10 CFR 50.7.
A Safety Conscious Work Environment (SCWE) is defined as a work
environment in which employees are encouraged to raise concerns and
where such concerns are promptly reviewed, given the proper priority
based on their potential safety significance, and appropriately
resolved with timely feedback to employees. Attributes of a Safety
Conscious Work Environment include (1) a management attitude that
promotes employee involvement and confidence in raising and resolving
concerns; (2) a clearly communicated management policy where safety has
the utmost priority, overriding, if necessary, the demands of
production and project schedules; (3) a strong, independent quality
assurance organization and program; (4) a training program that
encourages a positive attitude toward safety; and (5) a safety ethic at
all levels that is characterized by an inherently questioning attitude,
attention to detail, prevention of complacency, a commitment to
excellence, and personal accountability in safety matters.
Hanford Challenge requests that the Department--
Establish Departmental policy that calls for the positive
presence of a Safety Conscious Work Environment in its nuclear
facilities;
Institute rules, procedures and regulations requiring and
incentivizing DOE managers, supervisory personnel as well as contractor
and subcontractor
[[Page 53191]]
employers to achieve and maintain Safety Conscious Work Environment
programs at nuclear sites within at DOE nuclear sites within two years;
Require the Department of Energy to ascertain, through its
normal inspection duties or upon good cause, whether a demonstrative
``Safety-Conscious Work Environment'' program exists at a specific
facility or within any DOE division, and to order corrective actions to
remedy departures from such an environment;
Provide appropriate incentives within existing and new
contracts that reward contractors and managers who take early and
effective action to implement such a program.
DOE's enabling statute, 42 U.S.C. 2201(p), authorizes the
Department to ``make, promulgate, issue, rescind and amend such rules
and regulations as may be necessary to carry out purposes of this
chapter.'' 42 U.S.C. 7254 authorizes the Secretary to prescribe ``such
procedural and administrative rules and regulations as he may deem
necessary or appropriate to administer and manage the functions now or
hereafter vested in him.'' Additionally, the policy and purpose of the
Department of Energy includes advancing ``the goals of restoring,
protecting, and enhancing environmental quality, and to assure public
health and safety.'' 42 U.S.C. 5801(a). Also see, 42 U.S.C. 7101
(Department of Energy Organization Act) and 42 U.S.C. 2011, (the Atomic
Energy Act of 1954, as amended.)
Introduction
Hanford Challenge seeks a future that secures human health and
safety, advances accountability of the government and corporate actors
at the site, and promotes a sustainable environmental and economic
legacy for Hanford and all affected communities. Hanford Challenge
provides legal counseling and support for concerned employees (i.e.,
whistleblowers), particularly those who allege reprisal for voicing
concerns about environment, safety, and health (ES&H) deficiencies in
their places of employment. We work to ensure that worker's ES&H
concerns are addressed internally through existing processes, such as
the Hanford Concerns Council, or through public exposure in the media,
Congress, and the courts.
Hanford Challenge's Work With DOE Employees and Contractor Employees
It has been repeatedly demonstrated that workers are the key
ingredient to protecting the health and safety of the public and
workers. Agency and contractor officials alike rely upon employees to
exercise sound judgment in their work, and also as an early warning
system for problems that have the potential to escalate and cause
injuries and fatalities, threats to the environment, and waste of
resources. Occasionally, employees who have raised environmental,
safety and health concerns (whistleblowers) have subsequently
experienced significant workplace reprisal that has impacted their
careers, financial stability, and personal and familial relationships.
Frequently, they are courageous people of integrity who have observed
and documented health-threatening safety and environmental hazards, and
refused to remain silent despite adverse consequences. Too often,
concerned employees are turned into whistleblowers, who take their
concerns up the chain of command and often to government agencies, the
news media, Congress and the public in an effort to bring attention and
reform to an issue that involves safety, health, protection of the
environment, management of fiscal resources, security and other vital
public policy concerns. Too often, such employees have fallen victim to
harassment, intimidation, retaliation, and discrimination. Many have
been terminated from their jobs, and their careers effectively ruined.
The last 25 years has seen hundreds of cases from DOE sites brought by
such workers who have resorted to litigation in courts and before
administrative agencies. These cases have cost contractors, the
government, and the employees literally millions of dollars in attorney
fees and judgments, fines and penalties.\1\ More to the point,
operations at DOE facilities have been adversely affected in a
multitude of ways because of these cases. A systemic approach is needed
to institute and encourage a culture at DOE nuclear facilities that
assures the prompt and safe reporting of concerns in a manner that
protects the disclosure and the person making the disclosure, and
results in a timely and effective review of the allegations.
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\1\ For example, in October 2007, the Washington Supreme Court
affirmed a jury verdict in the case of 11 pipefitters,
whistleblowers at Hanford, and an award of $7.3 million. Internal
agency records indicate that the contractor charged the Department
millions of dollars in attorney fees and costs in addition to the
award--effectively putting the Department in the position of
subsidizing illegal retaliation.
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It is fundamental to the missions of the Department of Energy that
it protect the public safety and health in the regulation and control
of its nuclear weapons production facilities. It is also crucial that
DOE and DOE contractor employees be encouraged to voice ES&H concerns
without experiencing reprisal.
More importantly, a ``chilling effect'' message is sent to the
workforce at large when an employee is terminated for raising a
concern. Such actions suppress the reporting of concerns because
employees understandably become fearful of suffering reprisal were they
to report a concern. As a result, the work environment destabilizes,
morale among the employees dampens, and the atmosphere becomes charged.
The NRC Model
The commercial nuclear industry has a long history of dealing with
the issue of employee concerns, and during the past 20 years has
evolved principles and procedures that establish work environments
encouraging safety reports and prohibiting retaliatory conduct that
could chill such reports. The Nuclear Regulatory Commission (NRC)
defines its mission as the protection of the public safety and health
in its regulation of commercial nuclear facilities.
One example of the NRC's approach to its regulation of licensees in
the area of employee concerns involves a Connecticut nuclear station
called Millstone, which has three reactors. In the late 1980s,
Millstone Nuclear Power Station was the source of a high volume of
employee concerns and allegations related to safety of plant operations
and harassment and intimidation of employees. Following a TIME magazine
cover story in March 1995 about the situation, in which the NRC
Inspector General faulted the NRC for not recognizing that the reactors
had been operating outside their license requirement for many years,
the Nuclear Regulatory Commission (NRC) concluded that the large number
of deficiencies identified at all three Millstone sites implied that
some employees were reluctant to identify safety issues.
In an Order issued on August 14, 1996, the NRC mandated
independent, third party oversight to address licensee noncompliance
with regulatory requirements concerning, among other things, employee
safety concerns. In this Order, the NRC directed that, prior to
resumption of power operations, the Licensee should develop, submit to
the NRC, and implement a comprehensive plan for reviewing and
dispositioning safety issues raised by plant employees and ensuring
that employees who raise safety concerns are not subject to
discrimination. Additionally, the Licensee was ordered to retain the
independent third party, subject to the approval of the NRC, to oversee
its implementation of a comprehensive
[[Page 53192]]
plan. The plan for independent third party oversight was required until
the Licensee demonstrated by its performance that the conditions which
led to the requirement of that oversight had been corrected to the
satisfaction of the NRC.
The NRC has made a clear and cogent determination that the ability
of employees to raise concerns is integral to the protection of public
health and safety. The hazards at DOE nuclear facilities are no less
dangerous, and yet throughout the DOE complex, reprisals against
employees continue unabated, and hostile working environments are
instituted without challenge from the DOE. This Petition urges the
prompt incorporation of the NRC methodology for protecting employee
concerns at its facilities. This Proposed Rulemaking seeks to assist
the DOE in improving its operations consistent with its mission and in
accomplishing a work environment that has a ``zero tolerance for
reprisal'' in fact and not just in rhetoric.
In 2005, the NRC issued a Regulatory Issue Summary, (RIS 2005-18,
``Guidance for Establishing and Maintaining a Safety Conscious Work
Environment'') which identified effective practices for licensees and
contractors ``for ensuring problem identification and resolution
essential to ensuring the safe use of nuclear materials and operations
of facilities.'' (RIS 2005-18 at 3.) These included:
Establishing a Policy Statement published to all employees
and asserts that it is ``everyone's responsibility to promptly raise
concerns'' and ``makes clear that retaliation for doing so will not be
tolerated.'' (Id. At 4) This includes allowing and encouraging workers
to use work hours to report concerns, sanctions for retaliation,
setting expectations for management behaviors that fosters employee
confidence in raising concerns, providing information on the various
avenues for raising concerns, making clear that employees have the
right to raise concerns externally and a commitment to training.
The training program helps reinforce the principles and
practices of SCWE and should include clear explanations of the legal
definition for protected activity, adverse action and retaliation, as
well as consequences for deviation from applicable laws and
regulations. Training can also include defining gateways to identify
concerns, appeal processes, and alternative processes for raising
concerns. Training can also emphasize appropriate management behaviors,
including the importance of protecting confidentiality, fostering good
listening skills and identifying countervailing pressures (goals and
deadlines) that may interfere with appropriate listening and responses.
Important aspects of an effective SCWE include conducting
the necessary open inquiry to identify the full scope of the concern(s)
being brought forward, and assuring that concerns are promptly
prioritized, reviewed, and resolved. Employees who bring forth concerns
should be provided feedback, and appeal avenues made available for
employees who continue to hold a concern.
Management should establish an alternative process to
raising concerns with line management.
The program requires assessment, including lessons learned
evaluations, benchmarking, the establishment of performance indicators,
survey and interview tools, direct observations, exit interviews and
360-degree appraisals.
Contractors should be required to flow down expectations
and requirement of the SCWE program to sub-contractors.
Senior management should be involved in reviewing
employment actions when there is any indication that it involves an
employee who raised a concern.
Proposed Rulemaking
1. Establish Departmental policy in the Code of Federal Regulations
that mandates the establishment of a ``Safety-Conscious Work
Environment'' program which actively encourages employees to report
health, safety or environmental and other employee concerns at DOE-
owned sites;
This procedural step is necessary to clarify and formalize DOE's
policy on prohibition of reprisals against employees who raise
concerns. The Nuclear Regulatory Commission codifies its policy in 10
CFR Part 50.7. The NRC's statement of policy could easily be modified
to suit the purposes of the Department of Energy. A DOE version of this
policy could read like this: \2\
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\2\ The language that is in bold typeface is different than that
already appearing in the NRC's Statement of Policy at 10 CFR Part
50.7.
Employee protection.
(a) Discrimination by an agency official, or a contractor or
subcontractor of the Department against an employee for engaging in
certain protected activities is prohibited. Discrimination includes
discharge and other actions that relate to compensation, terms,
conditions, or privileges of employment. The protected activities
are established in section 211 of the Energy Reorganization Act of
1974, as amended, and in Departmental regulations codified at 10 CFR
Part 708 and in general are related to the administration or
enforcement of a requirement imposed under the Atomic Energy Act or
the Energy Reorganization Act.
(1) The protected activities include but are not limited to:
(i) Providing the Department or his or her employer information
about alleged violations of either of the statutes named in
paragraph (a) introductory text of this section or possible
violations of requirements imposed under either of those statutes;
(ii) Refusing to engage in any practice made unlawful under
either of the statutes named in paragraph (a) introductory text or
under these requirements if the employee has identified the alleged
illegality to the employer;
(iii) Requesting the Department to institute action against his
or her employer for the administration or enforcement of these
requirements;
(iv) Testifying in any Department proceeding, or before
Congress, or at any Federal or State proceeding regarding any
provision (or proposed provision) of either of the statutes named in
paragraph (a) introductory text.
(v) Assisting or participating in, or is about to assist or
participate in, these activities.
(2) These activities are protected even if no formal proceeding
is actually initiated as a result of the employee assistance or
participation.
(3) This section has no application to any employee alleging
discrimination prohibited by this section who, acting without
direction from his or her employer (or the employer's agent),
deliberately causes a violation of any requirement of the Energy
Reorganization Act of 1974, as amended, or the Atomic Energy Act of
1954, as amended.
(b) Any employee who believes that he or she has been discharged
or otherwise discriminated against by any person for engaging in
protected activities specified in paragraph (a)(1) of this section
may seek a remedy for the discharge or discrimination through an
administrative proceeding as provided in Departmental regulations
codified at 10 CFR 708 or in the Department of Labor. The
administrative proceeding must be initiated within 60 days after an
alleged violation occurs with the DOE, and within 180 days with the
Labor Department. The employee may do this by filing a complaint
alleging the violation with the Department of Labor, Occupational
Safety and Health Administration. In either proceeding, the agency
may order reinstatement, back pay, and compensatory damages.
(c) A violation of paragraph (a), (e), or (f) of this section by a
contractor or subcontractor of the Department may be grounds for--
(4) Denial, revocation, or suspension of the contract.
(2) Imposition of a civil penalty on the contractor or
subcontractor.
(3) Other enforcement action.
(d) Actions taken by an employer, or others, which adversely affect
an employee may be predicated upon
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nondiscriminatory grounds. The prohibition applies when the adverse
action occurs because the employee has engaged in protected activities.
An employee's engagement in protected activities does not automatically
render him or her immune from discharge or discipline for legitimate
reasons or from adverse action dictated by non-prohibited
considerations.
(e)(1) Each contractor or subcontractor shall prominently post the
provisions of this policy at DOE-owned facilities. This form must be
posted at locations sufficient to permit employees protected by this
section to observe a copy on the way to or from their place of work.
(f) No agreement affecting the compensation, terms, conditions, or
privileges of employment, including an agreement to settle a complaint
filed by an employee with either the Department of Labor pursuant to
section 211 of the Energy Reorganization Act of 1974, as amended, or
pursuant to a proceeding initiated under the provisions of 10 CFR Part
708 may contain any provision which would prohibit, restrict, or
otherwise discourage an employee from participating in protected
activity as defined in paragraph (a)(1) of this section including, but
not limited to, providing information to the DOE or to his or her
employer on potential violations or other matters within DOE's
regulatory responsibilities.
2. Hanford Challenge calls upon DOE to reestablish the position of
Assistant Secretary for Environment, Safety and Health (EH) within the
DOE, and give EH the authority and the resources to set DOE policy on
the issue of all agency and contractor employee concerns. Specifically,
the EH Assistant Secretary--
Should report directly to the Secretary of Energy, and
should seek to standardize DOE policy across the complex.
Should be given adequate funding and staffing and the
authority to implement policy, conduct investigations, levy sanctions,
and order corrective actions to abate violations.
Should institute rules, procedures and regulations
incentivizing DOE managers and supervisory personnel as well as
contractor and subcontractor employers to maintain a safety conscious
work environment where employees are free to raise employee concerns
without fear of reprisal.
Should incentivize facilities to conduct independent and
reliable employee surveys to measure whether employees feel free to
raise concerns free of reprisal on a company-by-company basis
(including at DOE) to use as a basis for determining whether corrective
actions should be undertaken.
EH should be responsible primarily for setting and enforcing
Departmental policy. Other duties should include--
Developing language to insert into the Department of
Energy Acquisition Regulations incentivizing contractors to maintain a
safety conscious work environment;
Developing posters and employee communication vehicles to
distribute for posting around the complex;
Inspecting and evaluating each facility in the complex to
ascertain that the standards set by the DOE in the area of employee
concerns are being reached;
Investigating and correcting extraordinary cases of
hostile and chilled work environments, high-profile cases, or
facilities experiencing a large number of discrimination complaints
alleging reprisals for raising concerns.
A revitalized and effective EH is of paramount importance for
achieving employee protection and safer work environments.
3. Amend existing contract(s) at its nuclear weapons production and
former nuclear materials production sites to incentivize the
establishment and maintenance of a safety-conscious work environment,
and to put contractors on notice that the contract can be conditioned,
suspended and/or revoked upon a finding by the DOE that a company has
engaged in a pattern and practice of whistleblower reprisals or has
failed to maintain a safety-conscious work environment;
This proposal follows the lead of the NRC, which has put licensees
on notice that the license to operate the facility hinges upon
maintaining a retaliation-free work environment. As the Department
moves away from the Management and Operating (M&O) contracting model,
and towards the performance-based contracts, there is a greater need to
spell out DOE's policies in relation to prohibition against reprisals
in contract language to tie specific awards to this performance.
Contractual financial incentives and penalties are necessary to
encourage a climate free of reprisals. A substantial portion of every
DOE contract in the nuclear complex should depend upon employee freedom
to report and resolve employee concerns.
4. Address ``hot spots'' where the chilling effect now exists,
based upon the investigative reports of the Labor Department, Office of
Special Counsel, MSPB, OCEP, or OHA and where there may be a strong
perception among employees that there will be reprisal. Corrective
actions could include:
[cir] Training of supervisory employees and workers by employee
concerns experts;
[cir] Developing guidelines for use of the ``holding period''
concept recommended by the Nuclear Regulatory Commission for contested
proposed job actions;
[cir] Instituting a ``personal accountability'' rule to hold
individual managers accountable for reprisals.
Conclusion
The current Rulemaking proposal seeks to bring the agency's actions
and policies in line with its statutory mandate to protect the public
health and safety by requiring the establishment of policies, rules and
practices that encourage employees of the Department and its
contractors to raise and resolve employee concerns, especially when
such concerns impact health and safety, security, or the environment.
Our proposal draws heavily from the practices of the Nuclear Regulatory
Commission, and seeks to adopt such policies for use at the Department.
We urge swift consideration and thorough deliberation of our
proposal, and look forward to a response from your office.
[FR Doc. E9-24929 Filed 10-15-09; 8:45 am]
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