Civil monetary penalties for violation of Department of Energy safety and whistleblower regulations

42 U.S.C. § 2282a

• Title: 42 — The Public Health and Welfare
• Chapter: SUBCHAPTER XVII—ENFORCEMENT OF CHAPTER

Text

(a) Persons subject to penalty
Any person who has entered into an agreement of indemnification under section 2210(d) of this title (or any subcontractor or supplier thereto) who violates (or whose employee violates) any applicable rule, regulation or order related to nuclear safety prescribed or issued by the Secretary of Energy pursuant to this chapter (or expressly incorporated by reference by the Secretary for purposes of nuclear safety, except any rule, regulation, or order issued by the Secretary of Transportation), or who violates any applicable law, rule, regulation, or order related to nuclear safety whistleblower protections, shall be subject to a civil penalty of not to exceed $100,000 for each such violation. If any violation under this subsection is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Secretary of Energy may carry out this section with respect to the National Nuclear Security Administration by acting through the Administrator for Nuclear Security.
(b) Determination of amount
(1) The Secretary shall have the power to compromise, modify or remit, with or without conditions, such civil penalties and to prescribe regulations as he may deem necessary to implement this section.
(2) In determining the amount of any civil penalty under this subsection, the Secretary shall take into account the nature, circumstances, extent, and gravity of the violation or violations and, with respect to the violator, ability to pay, effect on ability to continue to do business, any history of prior such violations, the degree of culpability, and such other matters as justice may require.
(c) Assessment and payment
(1) Before issuing an order assessing a civil penalty against any person under this section, the Secretary shall provide to such person notice of the proposed penalty. Such notice shall inform such person of his opportunity to elect in writing within thirty days after the date of receipt of such notice to have the procedures of paragraph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment.
(2)(A) Unless an election is made within thirty calendar days after receipt of notice under paragraph (1) to have paragraph (3) apply with respect to such penalty, the Secretary shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of title 5 before an administrative law judge appointed under section 3105 of such title 5. Such assessment order shall include the administrative law judge's findings and the basis for such assessment.
(B) Any person against whom a penalty is assessed under this paragraph may, within sixty calendar days after the date of the order of the Secretary assessing such penalty, institute an action in the United States court of appeals for the appropriate judicial circuit for judicial review of such order in accordance with chapter 7 of title 5. The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secretary for such further action as the court may direct.
(3)(A) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Secretary shall promptly assess such penalty, by order, after the date of the election under paragraph (1).
(B) If the civil penalty has not been paid within sixty calendar days after the assessment order has been made under subparagraph (A), the Secretary shall institute an action in the appropriate district court of the United States for an order affirming the assessment of the civil penalty. The court shall have authority to review de novo the law and facts involved, and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.
(C) Any election to have this paragraph apply may not be revoked except with consent of the Secretary.
(4) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (2), or after the appropriate district court has entered final judgment in favor of the Secretary under paragraph (3), the Secretary shall institute an action to recover the amount of such penalty in any appropriate district court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review.
(d) Limitation for not-for-profit institutions
(1) Notwithstanding subsection (a), in the case of any not-for-profit contractor, subcontractor, or supplier, the total amount of civil penalties paid under subsection (a) may not exceed the total amount of fees paid within any 1-year period (as determined by the Secretary) under the contract under which the violation occurs.
(2) For purposes of this section, the term "not-for-profit" means that no part of the net earnings of the contractor, subcontractor, or supplier inures to the benefit of any natural person or for-profit artificial person.
e 1 Nuclear safety whistleblower protections
In this section, the term "nuclear safety whistleblower protections" means the protections for employees of contractors or subcontractors from reprisals pursuant to section 4712 of title 41, section 5851 of this title, or other provisions of Federal law (including rules, regulations, or orders) affording such protections, with respect to disclosures or other activities covered by such protections that relate to nuclear safety.

History

(Aug. 1, 1946, ch. 724, title I, §234A, as added Pub. L. 100–408, §17, Aug. 20, 1988, 102 Stat. 1081; renumbered title I, Pub. L. 102–486, title IX, §902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 106–65, div. C, title XXXI, §3147(c), Oct. 5, 1999, 113 Stat. 938; Pub. L. 109–58, title VI, §610(a), (b), Aug. 8, 2005, 119 Stat. 781; Pub. L. 116–92, div. C, title XXXI, §3131, Dec. 20, 2019, 133 Stat. 1958.)

Editorial Notes

Editorial Notes

References in Text
This chapter, referred to in subsec. (a), was in the original "this Act", meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, §1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables.

Amendments
2019—Pub. L. 116–92, §3131(1), inserted "and whistleblower" after "safety" in section catchline.
Subsec. (a). Pub. L. 116–92, §3131(2), inserted ", or who violates any applicable law, rule, regulation, or order related to nuclear safety whistleblower protections," before "shall be subject to a civil penalty" and inserted at end "The Secretary of Energy may carry out this section with respect to the National Nuclear Security Administration by acting through the Administrator for Nuclear Security."
Subsec. (e). Pub. L. 116–92, §3131(3), added subsec. (e).
2005—Subsec. (b)(2). Pub. L. 109–58, §610(a), struck out at end "In implementing this section, the Secretary shall determine by rule whether nonprofit educational institutions should receive automatic remission of any penalty under this section."
Subsec. (d). Pub. L. 109–58, §610(b), amended subsec. (d) generally. Prior to amendment, subsec. (d) provided that the provisions of this section would not apply to the University of Chicago for activities associated with Argonne National Laboratory; the University of California for activities associated with Los Alamos National Laboratory, Lawrence Livermore National Laboratory, and Lawrence Berkeley National Laboratory; American Telephone and Telegraph Company and its subsidiaries for activities associated with Sandia National Laboratories; Universities Research Association, Inc. for activities associated with FERMI National Laboratory; Princeton University for activities associated with Princeton Plasma Physics Laboratory; the Associated Universities, Inc. for activities associated with the Brookhaven National Laboratory; and Battelle Memorial Institute for activities associated with Pacific Northwest Laboratory.
1999—Pub. L. 106–65 inserted "safety" before "regulations" in section catchline.

Statutory Notes and Related Subsidiaries

Effective Date of 2005 Amendment
Pub. L. 109–58, title VI, §610(c), Aug. 8, 2005, 119 Stat. 782, provided that: "The amendments made by this section [amending this section] shall not apply to any violation of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) occurring under a contract entered into before the date of enactment of this section [Aug. 8, 2005]."

Effective Date
Section effective Aug. 20, 1988, but inapplicable to any violation occurring before Aug. 20, 1988, see section 20 of Pub. L. 100–408, set out as an Effective Date of 1988 Amendment note under section 2014 of this title.