Nuclear Employer Alert

  
 

NRC Rejects Challenge to Discrimination Confirmatory Order

We recently reported on an effort by Leonard Sparks to intervene in an NRC discrimination enforcement case. Sparks had alleged, and the NRC found, that former Vogtle construction project manager Thomas Saunders had Sparks removed from the Vogtle site in retaliation for raising safety concerns. That allegation eventually led to a Confirmatory Order (CO), which required Saunders to take certain corrective actions. In Sparks' mind, the CO was inadequate.

Last week, an Atomic Safety & Licensing Board (ASLB) denied Sparks' motion to intervene in the proceeding and his challenge to the CO.

Sparks contested the CO on two grounds. First, he argued that the CO's supposedly vague language harmed his professional reputation and credibility. Second, he contended that the CO did nothing to improve safety at Vogtle. Both Saunders and Southern Nuclear opposed Sparks' intervention effort.

Denying Sparks' motion to intervene, the ASLB observed that the CO's corrective actions—which required Saunders to make several industry presentations on lessons learned from the alleged discrimination—could not conceivably injure Sparks. Because Sparks could not identify an injury traceable to the CO, he lacked standing.

Further, Sparks failed to present an admissible contention that would warrant a hearing. Applying the so-called Bellotti doctrine, the ASLB reasoned:

Pursuant to Bellotti, a contention challenging a CO must be rejected as outside the scope of the proceeding unless it claims that (1) the CO is unwarranted and, accordingly, its terms should be relaxed; or (2) the CO should be rescinded (as opposed to supplemented) because it is affirmatively detrimental to the public health and safety.... Mr. Sparks’ contentions do not assert that the corrective measures in the Saunders CO should be relaxed or that the CO itself should be rescinded (as opposed to supplemented) for being detrimental to the public health and safety. His contentions thus fail to satisfy the Bellotti standard and, therefore, are inadmissible ... as outside the scope of this proceeding (citing Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983)).

The ASLB expressed some sympathy to the fact that Sparks was a victim of discrimination and that the CO did not improve his personal situation. Nonetheless, the ASLB deemed those facts as beside the point for purposes of Sparks’ intervention request: "The NRC’s charter does not include providing [Sparks] a personal remedy.” Rather, the NRC’s role is to procure corrective action for the licensee’s program, and by example, other licensee’s programs. "[T]he enforcement measures in the Saunders CO serve that purpose."

Finally, the ASLB noted that Sparks has alternative paths for seeking relief. First, he could pursue a discrimination claim before the DOL, which he already is doing. Second, he could file a 2.206 petition arguing that additional NRC enforcement action is necessary to remedy alleged employee discrimination at Vogtle. For now, at least, the licensing board proceedings have concluded.

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.