KEY TRENDS IN LAW AND POLICY REGARDING
NUCLEAR ENERGY AND MATERIALS
The NRC recently issued its Allegation Program Annual Trends Report analyzing regional, national, and site-specific allegation trends for calendar year 2019. The report shows a decrease of almost 50% in total allegations between 2015 and 2019.
The US Court of Appeals for the Sixth Circuit’s recent favorable decision in Lemon v. Norfolk Southern Railway Corporation, announced its rejection of the chain-of-events theory of causation in whistleblower cases. In doing so, the Sixth Circuit joins the DOL’s Administrative Review Board (ARB) in rejecting this theory of causation. These decisions, while announced in cases brought under the Federal Rail Safety Act (FRSA), will also apply to cases under Section 211 of the Energy Reorganization Act of 1974 (ERA) because it contains the same “contributing factor” causation standard as the FRSA.
One threshold issue in whistleblower cases involving alleged retaliation is whether a complainant who is not a direct employee is nonetheless a “covered employee.” Under the employee protection provisions found in the several environmental statutes administered by the US Department of Labor (DOL), including, but not limited to, the Clean Air Act, Safe Drinking Water Act, Solid Waste Disposal Act, and Toxic Substances Control Act (collectively, the Environmental Statutes), the DOL’s Administrative Review Board (ARB) has applied two tests to answer this question.
The US Department of Labor’s chief administrative law judge (ALJ) issued a supplemental administrative order on April 10, extending the suspension of in-person hearings before the Office of Administrative Law Judges (OALJ).
The US Department of Labor’s Occupational Health and Safety Administration (OSHA) released a statement on April 8 reminding employers that they cannot retaliate against workers who report unsafe or unhealthy working conditions during the coronavirus (COVID-19) pandemic.
The US Department of Labor (DOL) Administrative Review Board (ARB) recently issued a decision in the case of Evans v. US Environmental Protection Agency, ARB Case No. 2017-0008, ALJ Case No. 2008-CAA-00003 (ARB Mar. 17, 2020), dismissing a whistleblower complaint filed under various employee protection provisions and finding that the employer's actions against the complainant were reasonable and taken to ensure employee safety after the complainant threatened to bring a gun to work.
In response to the coronavirus (COVID-19), the US Department of Labor’s (DOL’s) chief administrative law judge (ALJ) issued an administrative order on March 19 clarifying the status of matters pending before the DOL’s Office of Administrative Law Judges (OALJ).
The US Department of Energy (DOE) published a final rule in the August 2 Federal Register that revises DOE’s Contractor Employee Protection Program. The program appears in 10 CFR Part 708 (Part 708) and extends employee protections to employees of DOE contractors and subcontractors modeled after the protections for federal employees that appear in the Whistleblower Protection Act, 5 USC §§ 1201 et seq. DOE’s Office of Administrative Appeals (OHA) administers the Part 708 program.
The US Department of Energy (DOE) recently published proposed changes to its Contractor Employee Protection Program in the Federal Register.
The NRC issued a Notice of Violation (NOV) on December 17, 2018, to the Wolf Creek Nuclear Operating Company (Wolf Creek) finding that the company violated 10 CFR 50.7, the NRC regulation protecting reactor licensee employees and contractors from retaliation for raising nuclear safety concerns.