[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]

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.


Federal Register / Vol. 74, No. 199 / Friday, October 16, 2009 / 
Proposed Rules

[[Page 53190]]


10 CFR Part 851

Worker Safety and Health Program: Safety-Conscious Work 

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Petition for rulemaking; request for comment.


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 
     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 
     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 

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 
     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.)


    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.

    \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.

    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\

    \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 

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 
    (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 
    (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 
    (3) Other enforcement action.
    (d) Actions taken by an employer, or others, which adversely affect 
an employee may be predicated upon

[[Page 53193]]

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 
    (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.


    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]