Advocates for nuclear safety and nuclear power plant workers have urged caution and oversight after the Tennessee Valley Authority (TVA) recently announced that it will begin reconstructing the Bellefonte 1 nuclear reactor in Alabama which was abandoned in 1988. The opening is part of TVA’s initiative to have fifty percent of its generation come from “low or zero carbon-emitting sources” by 2020, when the plant is scheduled to open. The reactor, designed and built before the computer age, is one of only two new reactors to be opened since the early 1990s, and many environmental and safety experts note that antiquated safety structures follow its antiquated design. At least $4 billion has already been spent on the project, and an estimated $4 to $5 billion more in costs are projected by TVA.
This decision comes at a time when nuclear skepticism has been increasing both in the US and abroad. In the wake of the Fukushima Daiichi nuclear disaster following Japan’s earthquake earlier this year, German chancellor Angela Merkel has vowed to phase out the use of nuclear power by 2022, and the Swiss parliament shows signs of heading in the same direction.
In the United States, a task force chartered by the federal Nuclear Regulatory Commission (NRC) to assess the fitness of US reactors to withstand comparable disasters to Japan’s has steadily returned sobering progress reports. In an oral report before the five-person NRC on June 15th the task force concluded that US reactor safety rules are not prepared to respond to an event in which a single event would knock out electricity to both the general power grid as well as the emergency generators, as it did in Fukushima Daiichi. This is because when the safety structures were designed, the possibility that both power sources would be simultaneously damaged was “not considered credible,” explains Steven P. Kraft, an executive of the Nuclear Energy Institute, the industry’s trade association. The safety structures were also designed around the unrealistic assumption that power would be restored in four to eight hours after an outage. Earlier reports from the ongoing task force investigation have found that emergency vents that had been added to American reactors to protect against a hydrogen explosion after an incident may fail to function, as they failed to do in Fukushima Daiichi. The task force further concluded that NRC inspectors have not been trained to evaluate the condition of a variety of hardware or review procedures put in place as increased security measures following the 9/11 attacks.
The nuclear industry, often adopting a “schedule over safety” operational culture, has a history of intolerance toward and retaliation against workers who raise nuclear safety concerns. This threat to whistleblowers is especially high in the case of reactors like Bellefonte 1 that are owned by the Tennessee Valley Authority, due to the unique relationship the TVA holds with the government. Chartered in 1933 as a quasi-governmental corporation in an effort to create jobs during the Great Depression, the TVA enjoys immunity from several of the constraints that fully private nuclear companies must contend with. Because it is a federally owned corporation, the TVA is neither responsible to shareholders nor to state-level regulators. Instead it is only overseen by nine directors who are appointed by the President and confirmed by the Senate. It also enjoys remarkably low lending rates, similar to those available to the US Treasury, allowing it to advance construction and renovation at top speeds. This availability of funds and absence of regulations has often spelled trouble for whistleblowers, who become victims of the “schedule over safety” culture and are retaliated against for reporting conditions that constitute a threat to public health and safety.
In fact, the TVA has a long and infamous history of ignoring complaints by whistleblowers and retaliating against them when they persist. Dozens of whistleblower retaliation complaints have been brought against the TVA in recent decades. In 1980, for example, the TVA fired William DeFord, who had worked for nine years in the Electrical Engineering Branch of the Office of Engineering Design and Construction. During his tenure, DeFord was assigned to TVA’s Quality Engineering Branch and eventually became a manager in the Quality Assurance Engineering Section, a position which charged DeFord with inspecting whether various construction standards and specifications were complied with at the TVA’s Sequoyah Nuclear Plant during its construction. DeFord willingly lent his expertise to a routine safety inspection by the Nuclear Regulatory Commission in July 1980, bringing dangerous construction shortcomings he had discovered to the attention of TVA officials and the NRC. Subsequently, the NRC strongly emphasized these concerns in a meeting with TVA management two weeks later. The TVA then began its own investigation, regularly interviewing DeFord, and demoted and transferred him to a previous job after it claimed to have found a problem in his section. Upon reporting to his demoted position, DeFord was shunned by other workers and became a persona non grata at the plant. He was demoted from his supervisory role and his job security was under constant threat. Deford then filed a complaint under the Energy Reorganization Act with the United States Department of Labor, which subsequently concluded that TVA had subjected him to retaliation because of his nuclear safety reports. De Ford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983)
DeFord’s case was not an anomaly. Indeed, as subsequent cases demonstrated, it was business as usual at TVA. In 1996, TVA fired Curtis Overall, a power plant specialist in the Nuclear Steam Supply Room Engineering section of the Watts Bar Technical Support organization. Overall had reported that screws and screw heads had fallen into the system that processes ice and water to cool the reactor, progressively clogging the system and risking a meltdown. When TVA failed to take appropriate corrective action, Overall reported his concerns to the Nuclear Regulatory Commission and sent damaged materials to TVA for analysis. After meeting with TVA authorities to address the problem they ignored his proposed solutions, underrepresented the problem to others, and terminated him shortly thereafter. Like it had in the DeFord case, the Department of Labor concluded that TVA had subjected Overall to retaliation because of his nuclear safety reports. TVA v. United States Secy. of Labor, 59 Fed. Appx. 732 (6th Cir. 2003)
Even in recent years the TVA’s has systematically retaliated against those who raise safety concerns. Gail Richards, a Human Resources employee at the TVA was fired in 2007 after reporting lax office security and background check procedures in her officer. After her whistleblower retaliation suit settled the Nuclear Regulatory Commission began an ongoing investigation into claims by the TVA that Richards had stolen classified documents to make her case.
Earlier this year a TVA project head, Masould Bajestani left the TVA after a Department of Labor investigation found that his termination of engineer Robert Klock “was a deliberate retaliation,” that Bajestani had lied about his knowledge of Klock’s complaints to the NRC, and that Klock “has shown by the clear preponderance of evidence that those reasons, as enumerated by Bajestani, did not actually motivate his discharge.”
Also this year, a Department of Labor Administrative Law Judge found in favor of James Speegle, a foreman at the TVA’s Browns Ferry Nuclear Plant near Florence, Alabama who was fired in May 2004 after he reported serious problems with the protective coatings being used in the plant’s cooling system which could cause paint debris to clog emergency cooling pumps and prevent safe shutdown of the reactor during an accident.
According to Debra S. Katz, one of Mr. Speegle’s attorneys who specializes in nuclear whistleblower cases, “If Bellefonte 1 and other plants are to protect workers and communities, and rise to the standards the NRC task force has shown them to lack, this organizational culture of regularly silencing and harming workers who raise safety concerns must stop. Whistleblowers must be protected and made aware of their legal rights if they are we are to avoid a Fukushima Diiachi in TVA’s scramble to get a mothballed plant with obsolete technology on-line.”
The Energy Reorganization Act of 1978 (ERA) provides strong protections for contractors and employees who provide information about, or participate in investigations relating to, what they believe to be violations of nuclear safety laws and standards, so that they might not be discouraged from coming forward. Specifically, this act prohibits an employer from taking “adverse employment action” against an employee for engaging in protected activity, even if it only a contributing factor to the adverse action. Such adverse actions include firings, demotions, denial of promotions, reassignment of job duties and responsibilities, assignment of undesirable shifts, harassment and intimidation.
The following overview provides information workers in the nuclear industry should be aware of before blowing the whistle on nuclear safety issues.
Which Employees are Protected by the ERA?
The ERA protects “employees” against retaliation. The definition of “employee” is broad under the statute, and generally includes anyone who is employed by the licensee or its contractors or subcontractors. Even former employees can be protected where the employer’s post-employment actions, such as providing a negative job reference, are related to or arise out of the former employment relationship. Depending on the extent of control that a covered employer exercises over a worker, the statue might protect the employee despite the fact that the employer calls him or her an “independent contractor.”
Which Employers are Covered?
Since its enactment, the ERA has applied broadly to all licensees of the Nuclear Regulatory Commission(NRC), their subsidiaries and their contractors and subcontractors — in other words, to most any company that is involved in construction, maintenance, operation or clean-up at a nuclear facility. Congress extended the statute’s coverage in August 2005 when it amended the ERA to protect employees of the NRC and Department of Energy (DOE) themselves, as well as their contractors and subcontractors. The law covers only “employers,” and does not assign liability to individual managers even where they have spearheaded the retaliation against a complaining employee.
What Does the Whistleblower Have to Prove?
There are three central elements to an ERA whistleblower claim:
- the employee is engaged in protected activity;
- the employer took adverse employment action against the employee; and
- the adverse employment action against the employee was caused at least in part by the protected activity.
What is Protected Activity?
An employee engages in “protected activity” when he or she raises concerns — internally or to regulators, and maybe even to the media — about issues of nuclear safety. An employee is protected only when complaining about practices that he or she reasonably believes to implicate nuclear safety, and not when complaining about myriad other issues. For example, an employee who reports a non-nuclear safety problem (e.g., a tripping hazard) is not protected by the ERA because the occupational-safety concern the employee is raising, however important, does not implicate nuclear safety. On the other hand, an employee who complains about the nuclear-safety impact of short staffing may be protected even though the employee is also concerned that a short staff simply means too much work for everyone. In the inherently hazardous context of nuclear facilities, the DOL has found reports concerning a wider range of “quality-control” issues to merit whistleblower protection.
While the employee must reasonably believe the employer is engaged in conduct that will negatively impact on nuclear safety, he or she need not be right in that belief. As long as the employee’s belief is reasonable, the employer cannot retaliate against the employee for speaking out, even if the belief ultimately proves to be wrong.
When Does an Employee Suffer an Adverse Employment Action?
The ERA prohibits an employer from taking “adverse employment action” against an employee for engaging in protected activity. To the extent that the DOL adopts the standard that the U.S. Supreme Court has established in a similar context, the DOL will consider an action “materially adverse” if it would dissuade a reasonable employee from raising concerns about practices that he or she believes to implicate nuclear safety. This would certainly include firings, demotions, cuts in pay or denial of promotions, but it could also include reassignment of job duties and responsibilities, assignment of undesirable shifts, harassment, micromanagement, excessive supervision, or exclusion from important company activities.
Was the Adverse Employment Action Causally Related to the Protected Activity?
In order to prove an ERA whistleblower claim, the employee need only show that the protected activity was a “contributing factor” in the employer’s decision to take adverse action against the employee. The whistleblower’s protected activity does not have to be the employer’s sole reason or even a significant reason for the adverse action, but only has to play some role in the employer’s decision, however minor.
Employees bringing actions under ERA may satisfy the “contributing factor” standard in either of two ways. In rare cases, the employee may be able to present what is called “direct evidence,” such as the fact that the supervisor warned the employee that reporting a nuclear safety issue would result in discipline. More often, the employee will have to prove his or her case through circumstantial evidence, which may include the close timing between the protected activity and the adverse action, the fact that the employer has purportedly fired the employee based on conduct for which it has not disciplined other employees, the employer’s history of retaliating against whistleblowers, or even the fact that the employer has failed to comply with its own procedures or has presented false reasons for its actions.
Procedure for Filing an ERA Whistleblower Claim
In order to pursue a whistleblower claim under the ERA, an employee must file a written complaint with any office of the Occupational Safety and Health Administration (“OSHA”), which is part of DOL, within 180 days of the retaliatory action. OSHA will conduct an investigation if it determines that the complaint contains the necessary elements of a claim, and will eventually issue a preliminary determination.
In the vast majority of cases, OSHA has come down on the side of the employer at this preliminary stage of the proceedings. Accordingly, an employee should not expect OSHA to find in his or her favor, and should plan instead on requesting a hearing before a DOL Administrative Law Judge (ALJ), which the employee must do within 30 days of receiving a negative determination from OSHA. The proceedings that follow are very similar to those in any court, except that the case is heard and decided by the judge rather than by a jury. Under a two year-old amendment to the ERA, the employee can withdraw his or her complaint from the DOL proceedings and re-file it in federal court if the DOL fails (as it almost always does) to render a final decision within one year of the date the employee first filed a complaint with OSHA. In either forum, the employee can engage in the full range of pre-trial discovery that is part of civil lawsuits, including obtaining relevant documents from the employer and taking depositions of the key decision-makers and other witnesses.
While the DOL process is not especially hospitable to employees, nuclear whistleblowers have won a significant number of cases at trials before the ALJs. In addition, a great many ERA cases have settled before trial, presumably with the employee walking away with an acceptable settlement amount. In fact, companies in the nuclear industry tend to settle ERA whistleblower complaints that have merit, regardless of which side would ultimately prevail in a DOL hearing. Nuclear companies know that allegations of lax nuclear safety practices, especially if true, can pose a serious risk to their reputation in a community that is likely to be already skeptical of its operations. If the employee’s allegations are well-founded, many companies would rather settle a case promptly than run the risk of attracting prolonged attention to practices that might endanger the community.
What Remedies are Available to Successful Whistleblowers?
The Energy Reorganization Act entitles employees who prevail on their whistleblower claims to a full “make whole” remedy, which includes reinstatement and can include back pay and benefits, “front pay” for lost wages going forward, and compensatory damages for emotional pain and suffering. Employees who prevail in such proceedings may also recover their litigation costs, including attorneys’ fees.
How Do I Decide Whether and How to Report Unlawful Conduct?
Whether to report nuclear safety problems — and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unsafe practices can be a career-ending move. Even so, a strong sense of duty to co-workers and community compel many nuclear workers to speak out about unsafe practices every year.
While the decision to blow the whistle on lapses in nuclear safety should not be taken lightly and should be made only after seeking competent legal advice, the fact is that a large number of workers in the nuclear industry have spoken out and then achieved great outcomes when challenging their employers’ retaliation.
In this high risk situation, nuclear workers are the best equipped to keep watch over these plants’ safety standards, and they must be allowed to raise safety concerns without fear for their livelihoods. If the industry’s past is any guide to its future, the next ten years will see a growing number of safety problems as utilities rush to build and bring their plants online. From planning to construction, licensing, fueling and operation, each stage in the launching of a nuclear power plant generates countless safety issues, as licensees and their managers can be counted on to cut corners and overlook or hide serious problems at least some percentage of the time. Add to this the fact that some 150 aging reactors are already in use nationwide, and the scenario is nothing short of alarming.
The building of new reactors and the aging of existing ones means an increased responsibility for people who work in and around nuclear facilities, as their co-workers and communities will count on them to be on the lookout for violations of nuclear safety standards. As they have since the birth of the industry after World War II, these employees — from construction workers and plant operators to scientists, engineers and managers — will play a front-line position in the prevention of nuclear accidents that can pose significant danger to society.
If we are to prevent a repeat of Japan’s tragic Fukushima Daiichi disaster in the US, nuclear workers – the first and best line of defense against the industry’s “schedule over safety” culture – must be empowered to resist the TVA’s regular pattern of whistleblower retaliation. Armed with the knowledge that the Energy Reorganization Act allows them to report safety concerns without fear of retaliation, these workers can reports dangers without fear for their livelihoods. A nuclear workforce armed with the knowledge of these legal protections they are afforded can protect themselves and their communities from nuclear disaster.