Nuclear Employer Alert


NRC Cites Additional Vogtle Retaliation Violations

By Donn C. Meindertsma

As we recently reported, the NRC last month found that a former manager at Vogtle Units 3 and 4, Thomas Saunders, retaliated against a contract worker (Oct. 24, 2019 Alert). The agency issued a Confirmatory Order to Mr. Saunders that bars him from working in the industry for several years. On Wednesday, the NRC took enforcement action against Southern Nuclear’s Executive Vice President for the Vogtle construction project for a separate act of discrimination. The NRC also issued a Confirmatory Order to Southern Nuclear that addresses both cases.

Individual Action

The new individual enforcement action involves an NRC investigation finding that the Executive Vice President, Mark Rauckhorst, asked Westinghouse to remove a worker from the Vogtle site in part because the worker raised safety concerns some years earlier. Alternative dispute resolution failed to produce a resolution of the identified violation, and the NRC then held a predecisional enforcement conference (PEC) with Mr. Rauckhorst. The enforcement action is the result of the PEC.

As is typical, the NRC provided scant information about the factual predicate and the reasoning for its finding. The Notice of Violation (NOV) states:

[Y]ou sent a letter to Westinghouse directing removal of 14 listed individuals, including a contract employee to Southern Nuclear ... from the site. The contract employee was included on your list and subsequently terminated from employment, in part, because he engaged in protected activity by raising concerns regarding design and code compliance issues in 2013 and 2014.

The NOV cited deliberate misconduct and discrimination violations (10 CFR 52.4(c)(1); 52.5(a)).

The agency's cover letter to Mr. Rauckhorst states that "the NRC considered issuing an Order prohibiting your involvement in NRC-licensed activities for a period of time,” but that in light of the information he provided at the PEC and “the circumstances of this case,” the NRC chose not to do so. The NOV cites a Severity Level III violation. Mr. Rauckhorst may file a response or request mediation over the sanction.The enforcement documents do not explain what "circumstances" led the agency to assess the violation at Severity Level III or to refrain from imposing sanctions on Mr. Rauckhorst.

As background, Southern Nuclear hired Mr. Rauckhorst as the Vice President for the Vogtle new plant construction in 2011 and in 2016 elevated him to Executive Vice President. In that role, he has served as the senior-most executive and a public face for the project. He presided over the fallout from Westinghouse’s March 2017 bankruptcy and the transition of the project from Westinghouse to Southern Nuclear later that year. It was at about that same time, in July 2017, that Mr. Rauckhorst allegedly directed the removal of the Westinghouse worker in part due to his raising safety concerns. Perhaps of note is that Mr. Rauckhorst's nuclear employment background is limited. Before Southern Nuclear hired him in 2011, he was a managing director for a large accounting firm, where he developed expertise in large capital projects.

Licensee Confirmatory Order

As to Southern Nuclear, the NRC considered both recent findings of discrimination. In its correspondence to the licensee, the NRC noted:

Senior executives directly influence a wide group of individuals, making their retaliation against individuals for engaging in protected activity particularly significant. Therefore, the NRC was concerned that both cases involved senior executives directing the adverse action.

Southern Nuclear participated in ADR with the NRC as to both discrimination cases, which resulted in a Confirmatory Order. As a result, the NRC has agreed not to issue an NOV or take enforcement action against the company related to these two matters. As to whether Mr. Saunders or Mr. Rauckhorst in fact discriminated against workers, the Confirmatory Orders states that the NRC and Southern Nuclear "agree to disagree as to whether the violations occurred."

The Confirmatory Order outlines actions already taken and planned by Southern Nuclear that focus on the company's ECP, the process for reviewing discipline and discharge actions prior to implementation, and SCWE training. For example, the Confirmatory Order credits Southern Nuclear for having established what the company calls the "One Project ECP," which "manages the intake of all construction concerns, investigations, referrals when necessary and tracking of associated corrective actions." Also credited is Southern Nuclear's expansion of the One Project ECP to cover more than just nuclear safety concerns. This expansion supposedly "builds trust with the construction site population, as well as helps identify issues that might not appear to be nuclear safety concerns but either become nuclear safety concerns or have some tie to a nuclear safety concern." The NRC's Press Release summarized Southern Nuclear's Confirmatory Order commitments as follows: "Southern Nuclear committed to several actions, including maintaining a review process to ensure protected activity is considered when an employee faces significant adverse actions (e.g., job termination). The company also committed to improve the nuclear safety culture and safety conscious work environment at the site."

As always, the commitments by the licensee in these discrimination cases have the potential to lead other licensees to "ratchet up" their ECP, SCWE, training, and safety culture programs and assessments. This requires caution. For example, whether an ECP should explicitly invite concerns unrelated to nuclear safety is an issue worthy of debate. It is not clear that offering employees an alternative path for resolving issues that have nothing to do with nuclear safety is an efficient allocation of resources or is a proper way to support site supervisors and managers. Plainly, however, it is less burdensome for licensees to offer enhancements to their programs than to litigate contested discrimination allegations with the NRC.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.