Up & Atom

Morgan Lewis routinely assists licensees in connection with NRC allegations, investigations, and enforcement. The following are summaries of trends and findings in the NRC’s 2023 Allegation Program Annual Trends Report and Enforcement Program Annual Report.

The NRC recently issued its Allegation Program Annual Trends Report, analyzing regional, national, and site-specific allegation trends for calendar year 2021. The report’s top-line numbers show that allegations increased approximately 40% from 2020. The broad-based increase spanned reactor and materials licensees, as well as their vendors.

In a recent Memorandum and Order (Order), an NRC Atomic Safety and Licensing Board (Board) unanimously granted summary disposition to the Tennessee Valley Authority (TVA), dismissing three alleged violations and partially dismissing a fourth issued by the NRC. The violations arose from an investigation conducted by the NRC’s Office of Investigations (OI) into allegations of retaliation against a former TVA employee and former contractor. In its Order, the Board clarified the scope of Section 211 of the Energy Reorganization Act (ERA) (42 USC 5851) and the NRC’s implementing regulation in 10 CFR 50.7 (Section 50.7). The Order is favorable to employers covered by Sections 211 and 50.7. 

The US Department of Labor’s Occupational Safety and Health Administration (OSHA) held a public stakeholder meeting on May 19 to discuss its Whistleblower Protection Program and solicit feedback from interested individuals on how to improve its administration of the program. This call followed a similar call OSHA hosted in October, on which we also reported.

The NRC recently issued its Allegation Program Annual Trends Report. The report analyzes regional, national, and site-specific allegation trends for calendar year 2020. The report’s top-line numbers show that the number of allegations fell approximately 10% from 2019. This reduction continues the decline in allegations seen since 2016; and the number of allegations has fallen by more than 50% over the past five years. But while the overall number of allegations continued to decline in 2020, the rate of decline slowed.

The US Department of Labor (DOL) announced on February 19 that the Occupational Safety and Health Administration (OSHA) will begin investigating whistleblower complaints of retaliation under the Criminal Antitrust Anti-Retaliation Act and the Anti-Money Laundering Act. Morgan Lewis previously reported on the Criminal Antitrust Anti-Retaliation Act in its December 16 and December 28 LawFlashes, and on the Anti-Money Laundering Act in its January webinar discussing key whistleblower developments in the past year.

The Department of Labor’s (DOL’s) Administrative Review Board (ARB) recently announced it is updating its electronic filing system (EFS) at 8:30 am EST on December 7, 2020. Beginning December 7, all parties who wish to file electronically must use EFS to file documents electronically with the ARB. The current electronic filing system (EFSR) will shut down permanently at 5:00 PM EST on December 3, 2020. This means that parties will not be able to file documents electronically with the ARB after 5:00 pm EST on December 3 until 8:30 am EST on December 7.

The Occupational Safety and Health Administration (OSHA) recently held a public stakeholder meeting to discuss its Whistleblower Protection Program and how it can improve its administration of the 20-plus whistleblower protection provisions it is responsible for enforcing, including Section 211 of the Energy Reorganization Act of 1974 (ERA).

The US Department of Labor’s chief administrative law judge (ALJ) issued an administrative order and notice on June 1, indefinitely suspending all in-person hearings before the Office of Administrative Law Judges (OALJ).

The US Department of Labor (DOL) recently published a new rule to give the Secretary of Labor discretion to review Administrative Review Board (ARB) decisions. In 1996, the Secretary of Labor established the ARB while simultaneously granting it the authority and assigning it the responsibility to issue final agency decisions—after review or on appeal—of matters arising under various worker protection laws, including the many whistleblower protection laws administered by the DOL.