The opinion
GEORGE CLIFTON EDWARDS Jr., Senior Circuit Judge,
concurring.
I concur with Judge Krupansky’s opinion, but feel compelled to write separately in order to highlight some concerns.
The complicated statutory and regulatory scheme enacted by Congress and the Nuclear Regulatory Commission was designed to encourage employees like Mr. Rose to report unsafe practices in one of the most dangerous technologies mankind has invented. It is clear that the NRC envisioned substantial employee involvement in the regulatory process. See 10 C.F.R. § 19.11 (posting of notice of employee rights), 10 C.F.R. § 19.12 (mandating health and safety instructions to employees), 10 C.F.R. § 19.13 (requiring that employees be informed of incidents of radioactive exposure), 10 C.F.R. § 19.14 (allowing employee representatives to be present during NRC inspections), 10 C.F.R. § 19.15 (allowing consultations with employees during NRC inspections), 10 C.F.R. § 19.16 (allowing employees to request NRC inspections).
When amending the regulations, the NRC explained the need for employee involvement:
The Commission, to effectively fulfill its mandate, requires complete, factual and current information concerning the regulated activities of its licensees. Employees are an important source of such information and should be encouraged to come forth with any items of potential significance to safety without fear of retribution from their employers.
47 Fed. Reg. 30453 (1982).
If employees are coerced and intimidated into remaining silent when they should speak out, the results can be catastrophic. Recent events here and around the world underscore the realization that such complicated and dangerous technology can never be safe without constant human vigilance. The employee protection provision involved in this case thus serves the dual function of protecting both employees and the public from dangerous radioactive substances. 1
Carl Rose’s actions were highly commendable. He acted in the precise manner Congress hoped workers in his position would act. He reported the escape of radioactivity into the atmosphere to the NRC, which took appropriate steps to protect the public from further danger. The next day, Carl Rose no longer had a job. He turned to the government agency charged with protecting his rights, albeit 26 days later *566 than the 30 day limitation period, and was met with indifference. The Secretary of Labor, required by his own regulations to respond within 30 days of the complaint, 29 C.F.R. § 24.4 (d)(1), took over eight months to reply to allegations of illegal conduct on the part of Rose’s former employer.
When the Administrator informed Rose of the adverse determination, he was obliged by regulation to outline the procedure for administrative appeal. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.” Morton v. Ruiz, 415 U.S. 199, 235 , 94 S.Ct. 1055, 1074 , 39 L.Ed.2d 270 (1974). However, the Administrator apparently did not, as required, notify the petitioner of his right to appeal his decision to the Chief Administrative Law Judge. To attempt to require Rose to exhaust remedies he was not informed of does not promote administrative accuracy, judicial efficiency or agency autonomy. Rather, it would serve merely to compound the errors and lack of concern already amply demonstrated by the Secretary. Those circuits which have decided this issue are uniform in holding that where agency action or inaction prevents an individual from exhausting his administrative remedies, the administrative agency cannot rely upon that individual’s failure to pursue administrative remedies as a basis for precluding judicial review. 2 Goodrich v. U.S. Department of the Navy, 686 F.2d 169 (3rd Cir.1982), cert. denied, 469 U.S. 1189 , 105 S.Ct. 958 , 83 L.Ed.2d 965 (1985); Ezratty v. Puerto Rico, 648 F.2d 770 (1st Cir.1981); Athas v. United States, 597 F.2d 722 , 220 Ct.Cl. 96 (1979); Harr v. Federal Home Loan Bank Board, 557 F.3d 747 (10th Cir.1977), cert. denied, 434 U.S. 1033 , 98 S.Ct. 766 , 54 L.Ed.2d 780 (1978).
. The United States is not immune to technological malfunction in the nuclear power industry. The NRC recently released a report which listed twelve major failures at nuclear facilities in 1985, including an explosion at a uranium fuel factory in which one worker was killed. Representative Edward Markey, chairperson of the Energy Conservation and Power Subcommittee of the House Energy and Commerce Committee has stated "This past year has been the worst year for nuclear safety in the domestic nuclear industry since the 1979 accident at Three Mile Island.” N.Y. Times, May 4, 1986, § 1 at 1.
. In this way, the present case is clearly distinguishable from Midland Insurance Co. v. Adam, 781 F.2d 526 (6th Cir.1985). Nor can this case be said to create any dangerous precedent, since waiver of exhaustion must be decided on a case by case basis. Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir.1981).