Apparently responding to a report by the Government Accountability Office in July 2016 suggesting that it must strengthen whistleblower protections, the Department of Energy (DOE) on August 12 issued a proposed rule indicating its authority to issue civil penalties to contractors and subcontractors engaged in nuclear safety activities who retaliate against employees who report violations, unsafe conditions, or engage in other protected activities concerning nuclear safety. The rule, if finalized, would put DOE more firmly in the business of investigating and taking enforcement action for alleged violations of the whistleblower regulations—similar to the longstanding program of the Nuclear Regulatory Commission (NRC) for the commercial nuclear power industry.

DOE has previously issued regulations in 10 CFR Part 708 that prohibit a contractor or subcontractor from retaliating against individuals who raise nuclear safety issues, or who refuse to participate in an activity that they think would cause a violation or an injury. The regulations also established a process for individuals to raise claims and seek personal remedies for adverse employment actions alleged to be retaliatory. Under the proposed rule DOE would expand the regulatory apparatus governing these claims. DOE would clarify that it would use its existing civil penalty authority under the Atomic Energy Act to issue fines for violations in addition to the personal remedies.

The proposed rule includes a “Whistleblower Enforcement Policy” broadly defining some of the parameters for an enforcement process. For example, DOE (appropriately) would not take any action until an individual request for relief has been fully adjudicated by an agency or court. And the policy includes some broad language about encouraging cooperation by a contractor and the significance of a violation based on the level of management involved in the retaliation in determining a final enforcement action. But, given the subtleties of alleged retaliation issues, and that vast amount of experience available in Department of Labor and NRC precedent on similar issues, the policy seems vague and incomplete. This would appear to be an issue that would benefit from further stakeholder input and engagement.