The United States Department of Energy predicts that U.S. electricity consumption will grow 40% by 2030. To accommodate the country’s growing needs, existing power generating plants are expanding their capacities, and many new plants, including nuclear power plants, are in the planning stage. As of July 2007, 17 entities are pursuing licenses to build as many as 30 new nuclear power plants.

The energy industry is no stranger to regulatory oversight of its construction activities. Entities planning nuclear power plants have already begun the Nuclear Regulatory Commission’s (NRC) early site approval permitting process for their facilities. The Federal Energy Regulatory Commission (FERC) licenses construction of new hydroelectric power plants. Construction of nonhydroelectric power plants is governed by the individual states. But what all power plants have in common is that worker safety during the plant construction phase is governed by the Occupational Safety and Health Administration (OSHA), under the Occupational Health and Safety Act (OSH Act), and subject to OSHA safety standards.

Employers’ OSH Act Obligations

The OSH Act places several duties on employers. First, the “general duty clause” requires all employers to “furnish to each of [their] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). Second, all employers must “comply with occupational safety and health standards promulgated [by OSHA].” 29 U.S.C. §654(a)(2). Third, the OSH Act requires employers to maintain and preserve records regarding its safety activities and workplace injuries, to conduct periodic safety inspections, and to post notices to apprise employees of their rights under the Act. Lastly, the Act also prohibits employers from retaliating against employees who file safety-related complaints or who otherwise exercise their rights under the Act.

Pursuant to its regulatory authority, OSHA has promulgated both general and specific safety standards. Almost all employers are subject to OSHA General Industry Standards, and employers in specific industries, such as construction, mining or longshoring are subject to specific industry standards as well

General Industry Standards include standards relating to walking and working surfaces, exit routes, evacuation plans, working platforms, ventilation, noise, radiation, toxic substances, safety and sanitation controls, first aid, fire protection, and the handling of different types of industrial equipment. The construction standards include duties relating to safety training and education, first aid provisions, fall protection, fire protection and prevention, housekeeping, worksite lighting, sanitation, personal protective equipment, certification of pressure vessels and boilers, exits, and emergency action plans.

An employer’s OSHA compliance obligations adhere in declining order of specificity. For example, a construction employer is subject to OSHA Construction Standards, even if a contrary, and stricter, General Industry Standard exists. If no Construction Standard exists, OSHA applies the General Industry Standards. If no General Industry Standard exists, an OSHA inspector still can cite to the OSH Act’s general duty clause if there is evidence that the employer’s industry recognizes the hazard such as via ANSI or NFPA standards. For additional information regarding OSHA inspections see, "Guide to Surviving an OSHA Inspection." Labor & Employment Seminar: Important Legal and Litigation Issues Facing Employers, Hogan & Hartson LLP, 11.16.2006.

Multi-Employer Worksites

Construction sites are almost always multi-employer worksites. This creates special problems for determining who is liable for OSHA violations at the site. Under OSHA rules, a “controlling” employer, such as a general contractor, can be responsible even for hazards that it did not create and to which its employees were not exposed. The controlling employer must exercise reasonable care to prevent and detect violations at the work site. A non-controlling employer, such as a subcontractor, still is liable for a violative condition that it creates, even if its own employees were not exposed to the condition. In some cases, a subcontractor also can be liable for a condition to which its employees were exposed, even if it did not create the condition.

In addition, OSHA duties are non-delegable. Thus, an employer cannot avoid liability by contractually delegating its safety responsibilities to a third party. In practice this means that if a utility’s employees are involved in the construction of a power plant, the utility can be liable for conditions its employees create, or to which its employees are exposed, even if the utility has hired a general contractor to oversee the project.

Whistleblowing and Anti-Retaliation

The OSH Act’s whistleblower provision makes it unlawful for an employer to “discharge or in any way discriminate” against an employee because the employee has filed a complaint or participated in any OSHA proceeding. Such discrimination can include sanctioning the employee by altering compensation, terms, conditions, or privileges of employment. Employees who believe they have been discriminated against for reporting their OSHA concerns may file a complaint with the Secretary of Labor. OSHA is the agency tasked with investigating these employee retaliation complaints. In addition, because of OSHA’s expertise in handling retaliation investigations, it has been delegated investigative and administrative responsibilities under the anti-retaliation components of fourteen other federal statutes

New Whistleblowing Rules under the ERA

One such statute whose anti-retaliation provisions are administered by OSHA is the Energy Reorganization Act (ERA). NRC licensees and applicants are “employers” within the scope of the ERA’s anti-retaliation section. On August 10, 2007, OSHA released an interim final rule on procedures for handling ERA-based retaliation.

This new interim final rule implements changes to the ERA made by the Energy Policy Act of 2005, and makes complaint handling procedures under the ERA and certain environmental statutes “as consistent as possible” with other OSHA-administered anti-retaliation provisions, such as the Sarbanes-Oxley Act of 2002. The rule also highlights a fact of some importance to ERA covered employers –the ERA places a particularly stringent burden of proof on employers attempting to rebut retaliation claims, far greater than the normal Title VII burden. In a Title VII case, the complaining employee first must present a prima facie case that her having engaged in protected whistle-blowing activity was a “motivating factor” in the employer’s adverse employment action against her. This creates a presumption of retaliation. The employer then must produce a legitimate, non-retaliatory, reason for the adverse action to rebut the presumption. It is then up to the employee to prove by a preponderance of the evidence that the employer’s explanation was a pretext. If the employee is successful in proving pretext, the trier of fact has discretion to find retaliation. If the trier of fact finds that the employer had mixed motives, that is, more than one reason, for taking the adverse employment action against the whistle-blowing employee, the employer can avoid liability by proving by a preponderance of the evidence that it would have taken the adverse employment action even in the absence of the protected whistle-blowing activity.

The ERA burden-shifting scheme is very different. Under the ERA, the employee’s initial burden simply is to show by a preponderance of the evidence that her protected activity was a “contributing factor” in the employer’s adverse employment decision. If the complainant cannot make this initial showing, OSHA’s investigation ends. If the employee does make the initial showing, then the employer can get the complaint dismissed only if it shows by clear and convincing evidence that it would have taken the same unfavorable personnel action even absent the employee’s engaging in protected activity.

Employees Covered by Both the OSH Act and the ERA

Whether OSH Act or ERA whistle-blowing rules, or both, will apply to an NRC licensee’s employee involved in nuclear power plant construction will vary with the nature of the employee’s protected activity. The OSH Act anti-retaliation provisions are broadly interpreted to apply to any health or safety related complaints, but the ERA anti-retaliation statute is limited to employee reporting regarding violations of the ERA or the Atomic Energy Act of 1954. Theoretically, an employee can report an ERA violation to the NRC that also impacts employee safety. That employee would be protected from retaliation by both the OSH Act and the ERA. In practice, however, an ably represented employee would file his retaliation complaint under the ERA’s more robust antiretaliation statute. Employees who initially report unsafe workplace conditions to OSHA, rather than the NRC, presumably will be entitled only to the OSH Act anti-retaliation provisions with its heightened burden of proof

Conclusion

Employers involved in power plant construction would be well served to make themselves aware of the specific OSHA obligations attendant to their specific undertakings. Special issues facing such employers include compliance with construction industry standards and the potential for multiemployer liability. Obviously, no employer should engage in retaliatory conduct toward employees who raise workplace safety concerns. Employers who also are NRC applicants or licensees must be especially wary of taking any adverse employment action against employees who have made ERA-based complaints to the NRC because such employers must surmount a particularly onerous burden of proof to rebut retaliation claims.