The NRC issued a Notice of Violation (NOV) on December 17, 2018, to the Wolf Creek Nuclear Operating Company (Wolf Creek) finding that the company violated 10 CFR 50.7, the NRC regulation protecting reactor licensee employees and contractors from retaliation for raising nuclear safety concerns. Based on the level of management involved, the NRC treated the violation as a Severity Level II violation, and proposed a civil penalty of $232,000. The NOV and proposed civil penalty followed an investigation by the NRC Office of Investigations and predecisional enforcement conference (PEC). In addition to the finding of a violation of 10 CFR 50.7 by a reactor licensee involving one of its contractors and the size of the proposed civil penalty, two aspects of the NOV are particularly noteworthy: (1) the form of the adverse action that resulted in the violation; and (2) the evidentiary standard of proof the NRC Staff used to find a violation.
To prove a violation of 10 CFR 50.7, the NRC must find that (a) an individual engaged in protected activity, such as writing a condition report, raising a nuclear safety concern, or raising concerns about retaliation; (b) the company knew of the protected activity; (c) the company took adverse employment action against the individual; and (d) the protected activity contributed to the adverse action. The NRC found that the evidence established all four factors in fairly unusual events at Wolf Creek Generating Station.
As explained in the NOV, a contractor initiated a condition report during a refueling outage, and then later communicated related concerns directly to Wolf Creek management. These related concerns included claims of retaliation, a chilled work environment, and safety conscious work environment (SCWE) issues. The contractor also raised a concern that an employee had attempted to cover up an incident that occurred in containment.
The NRC found that after receiving the contractor’s concerns, Wolf Creek initiated a two-part investigation, led by Human Resources and an independent investigator, “which was allegedly intended to address” the underlying issues associated with the contractor’s concerns. According to the NOV, however, the investigation “did not focus on the concerns raised by the contract employee,” but instead “focused primarily on the contract employee’s behavior and did not review the employee’s claim of retaliation.” The NRC also concluded that the company wanted the contractor off site during the outage. Wolf Creek placed the contractor’s unescorted access on supervisory hold and directed senior management of his employer to place him on paid administrative leave “before the contract employee could provide further views of their safety and retaliation concerns and before those issues could be substantively addressed.”
Notably, the NOV stated that placing the contractor on paid administrative leave constituted an adverse action, rejecting the company’s argument to the contrary. This conclusion is significant because the US Department of Labor and courts have previously held that relatively brief periods of paid administrative leave, pending an investigation, do not constitute adverse action. The NRC appears to acknowledge this deviation from precedent by noting that it based its conclusion on the “specific context” of this case.
Interestingly, the NOV is silent with respect to the burden-shifting that is supposed to take place when the NRC determines that an individual’s protected activity contributed to an adverse action. Under the NRC’s decision in Tennessee Valley Authority, CLI-04-24. 60 NRC 160, 194 (2004), if a preponderance of the evidence shows that a protected activity was a contributing factor in taking the alleged adverse action, then the licensee may “show, by ‘clear and convincing evidence,’ that it would have taken the same personnel action regardless of the protected activity.” If the licensee can satisfy this heightened evidentiary standard, it may be able to avoid enforcement action. The NOV issued to Wolf Creek does not address this potential defense or whether the NRC even considered the issue in this case.
In sum, this case provides two key messages for licensees: (1) paid administrative leave pending an investigation may constitute an adverse action, under certain circumstances; and (2) concerns involving retaliation must be investigated promptly.
Morgan Lewis will continue to update Up & Atom when significant events in nuclear whistleblower cases occur.