Nuclear Employer Alert

  
 

 “Adequacy,” “Sufficiency” of Vogtle Retaliation Orders Challenged

As we reported in October and November, the NRC issued Confirmatory Orders (CO) to Southern Nuclear and two Vogtle construction project managers stemming from retaliation and deliberate misconduct violations. While a CO typically marks the end of NRC enforcement proceedings in retaliation matters, that is not always the case. One possibility is that the victim of the alleged retaliation might intervene or threaten to intervene to challenge the CO, either as a bargaining chip to extract a settlement from the licensee or for other purposes.

So it has come to pass with the Vogtle retaliation cases. Leonard Sparks was the contract worker involved in one of the cases. He allegedly was driven off the construction site by a manager, Saunders, for raising safety concerns. An NRC investigation concluded that Saunders retaliated against Sparks. In lieu of enforcement penalties against Saunders, however, he and the NRC agreed to the issuance of a CO, which, among other things, required Saunders to speak about his experiences and lessons learned at industry meetings.

The NRC also issued a CO to Southern Nuclear based on Saunders' misconduct. That CO also resolved an NRC retaliation finding regarding another Vogtle construction site manager. The Southern Nuclear CO stated that the NRC and the company "agree to disagree as to whether the violations occurred." While Southern Nuclear accordingly did not admit that any deliberate misconduct or retaliation occurred, the company agreed to undertake a host of SCWE-related efforts, as memorialized in the CO.

The COs to Saunders and Southern Nuclear did not sit well with Sparks, who, represented by attorney Billie Garde, has since filed motions to intervene in both proceedings to challenge the orders. To qualify as an intervening party, of course, Sparks must demonstrate that he has standing in the case and an admissible contention. His argument is largely that the orders to Saunders and Southern Nuclear fail to set forth the factual bases for the NRC’s conclusions, which causes two problems.

First, the absence of clear factual determinations about the retaliation leaves Sparks' “professional reputation and credibility,” as well as his future employment prospects, in question. In other words, the CO fails to “vindicate” Sparks. Second, absent a recounting of the applicable facts, there can be no assurance that the SCWE-related corrective actions offered by Southern Nuclear are appropriate. In fact, Sparks contends that Southern Nuclear’s CO commitments “do not address the serious safety culture breakdown” at the Vogtle construction site. More particularly, he alleges that the corrective actions do not help former employees, Sparks included, who have been retaliated against because those actions are geared toward current employees and future work environment enhancements.

Saunders, the NRC Staff, and Southern Nuclear have opposed Sparks’ motions to intervene. Saunders argues that Sparks cannot show an injury-in-fact, noting that his motion fails to show that his reputation and credibility have been harmed by the CO, much less demonstrate an injury that could be redressed in reopened proceedings. As Saunders puts it, it is not Sparks’ role to suggest how the CO might be improved “with harsher punishment, statements extolling him, or the health and safety topics he would prefer it address.” In short, Sparks “cannot be injured by a CO addressing Mr. Saunders’ personal commitment to improving safety consciousness.”

NRC Staff’s opposition likewise argues that Sparks lacks standing and that he has not proffered an admissible contention for a hearing. “Sparks’ contentions are merely a repackaging of his principal argument that additional measures would make the public safer.” Southern Nuclear adds a rebuttal to Sparks’ assertion that the CO to the company is actually detrimental to the SCWE:

Petitioner also makes a speculative assertion that the SNC CO “undermines safety” because it could lead to a “chilling effect” at the site…. Not only does Petitioner fail to provide any facts showing how the SNC CO adversely affects safety, the SNC CO plainly improves safety. As described above, the commitments outlined in the SNC CO bolster SNC’s SCWE and employee protection processes. Contrary to Petitioner’s assertion, NRC Staff determined that SNC’s commitments are “acceptable and necessary” and provide that “public health and safety are reasonably assured.” Petitioner’s Motion to Intervene provides no evidence or information that conflicts with the NRC Staff’s determination. Petitioner is not adversely affected by a confirmatory order that improves public health and safety. In short, the injuries alleged by Petitioner are exactly the type of conjectural and hypothetical arguments the NRC’s standing requirements routinely reject and likewise are due to be rejected.

Recently, an ASLB denied Sparks’ motion to consolidate his twin attempts to challenge the orders to Saunders and Southern Nuclear. The Board observed that Sparks "seeks to challenge, inter alia, the adequacy of the facts in the CO and the sufficiency of the corrective actions." The Board based the denial partly on procedural considerations while also noting the unrelatedness of the two proceedings: “In sum, Mr. Sparks is challenging different COs, issued to different respondents, arising from different (albeit partly overlapping) facts, and containing different corrective actions tailored to provide different (albeit complementary) cures. Moreover, in the Saunders CO, the respondent acknowledged a regulatory violation, whereas in the [Southern Nuclear] CO, the respondent denied it.”  

Sparks' efforts seem unlikely to prevail. Nonetheless, these developments demonstrate that a confirmatory order is not always the end point for a substantiated retaliation allegation. If you have any questions about these developments, please contact us.

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.