Department of Energy contractors and subcontractors may be subject to additional civil penalties.

The US Department of Energy (DOE) recently published proposed revisions to its procedural rules for nuclear activities in 10 CFR Part 820 (Part 820).[1] The proposed revisions clarify that DOE may assess civil penalties against certain contractors and subcontractors[2] that violate 10 CFR Part 708 (Part 708), which prohibits retaliation against employees who report nuclear safety concerns.[3] Going forward, contractors and subcontractors who retaliate against employees for raising nuclear safety concerns may be subject to additional civil penalties. The proposed revision comes at the heels of a July 2016 US Government Accountability Office (GAO) report that strongly criticized DOE’s culture for allowing contractor employees to raise concerns without fear of reprisal.[4]

The GAO report—frankly titled Department of Energy Whistleblower Protections Need Strengthening—describes the environment for raising concerns at DOE sites and among its contractors and subcontractors and the extent to which DOE holds contractors and subcontractors accountable for retaliation and chilling the work environment.[5] The GAO based its findings on a review of DOE’s past safety culture assessments and 87 DOE whistleblower case files, as well as interviews of DOE officials at 10 of DOE’s largest sites. The report culminates in six recommendations to DOE.[6] The proposed revision to Part 820 relates to GAO’s fourth recommendation that DOE expedite the codification of its policy that retaliation for nuclear safety-related disclosures is a nuclear safety violation, actionable under Part 820.

Part 820 establishes the procedures for investigating violations of DOE’s Nuclear Safety Requirements, imposing an appropriate remedy, and assessing a civil penalty. Under the current version of Part 820, DOE may impose civil penalties against any person “on the basis of a violation of any DOE Nuclear Safety Requirement set forth in the Code of Federal Regulations . . .”[7] Yet there is no definitive list of regulations included in the definition of “Nuclear Safety Requirement[s].” This has led to uncertainty about the scope of DOE’s authority to issue civil penalties for violations of these requirements, particularly with respect to the prohibition against whistleblower retaliation in Part 708.

To address this, DOE’s proposed revision to Part 820 clarifies that the following provisions are DOE Nuclear Safety Requirements:

  • Part 830[8]
  • Part 835[9]
  • § 820.11[10]
  • Compliance Orders issued pursuant to Subpart C to Part 820[11]
  • § 708.43[12] as it relates to nuclear safety

This change puts contractors and subcontractors on notice that DOE now may assess civil penalties for violations of these rules. The proposed revisions to Part 820 also would codify DOE’s currently nonbinding Whistleblower Enforcement Policy at Section XIII of Appendix A to Part 820. This would permit DOE to collect and rely on information from separate DOE administrative proceedings during its enforcement proceedings. It also would permit DOE to investigate violations of DOE Nuclear Safety Requirements (except Part 708 violations) prior to the conclusion of related administrative proceedings.[13]

The proposed revisions to Part 820 do not appear to expand DOE’s enforcement authority but rather formalize its existing position with respect to its enforcement authority and the prohibition against retaliation as a requirement that implicates nuclear safety. Nevertheless, up to this point, DOE rarely has exercised its authority to penalize contractors and subcontractors for retaliating against employees who raise nuclear safety concerns. Notably, in the last 20 years, DOE has issued only two notices of violation for unlawful retaliation. [14] In light of DOE’s infrequent and inconsistent enforcement in this area, the proposed revisions to Part 820 may signal that more enforcement actions are on the horizon. Enforcement actions such as these may be costly. Civil penalties can reach up to $160,000 per violation, and each day of a continuing violation is considered a separate violation[15]

In situations involving alleged retaliation, DOE will not take any action under Part 820 for an alleged unlawful retaliation unless and until a request for relief filed in connection with the alleged retaliation has been fully adjudicated.[16] Even then, DOE will generally only take action that is consistent with the findings of an agency’s or court’s final decision. If a final decision finds that retaliation occurred, then DOE will consider whether the retaliation constitutes a violation of § 708.43 (if the retaliation claim was not filed under Part 708); and if so, whether to take action under Part 820. If a final decision finds that no retaliation occurred, DOE generally will not take any action under Part 820 for the alleged retaliation, absent significant new information.

The deadline to comment on DOE’s notice of proposed rulemaking is September 12, 2016.