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Do Nuclear Workers Dare?

Whistleblowing case has ramifications for an entire industry.

Fortnightly Magazine - May 2010

ARR is formally addressed by Triconex.” The ARR was a report originated by my client that summarized significant project deficiencies.

FPL, upon learning of shortcomings disclosed by Robinson concerning its Invensys project, also issued a stop-work order. The problems included alleged Invensys violations of a federal regulation, 10 C.F.R. 50 Appendix B , which sets nuclear QA requirements governing nuclear system and component design, development, and testing. The Invensys FPL Turkey Point project was designated as having safety-related issues and therefore was regarded as potentially reportable under 10 C.F.R. 21 . In fact, Title 10 of the C.F.R., section 21.1 et seq . requires operators of nuclear facilities to “immediately notify the Commission” of any failure to comply with rules that relate to “substantial safety hazards.”

In the aftermath of the Three Mile Island accident some 30 years ago, the NRC shined the spotlight on the whole issue of excessive work hours. The NRC called attention to adverse impacts of fatigue on the quality and acceptability of safety-related work. In 1980, the NRC issued IE Circular 80-02 to all licensees, setting standards for work hours. My client complained because, inter alia , he was convinced that Invensys practices on the FPL project grossly violated industry standards.

As an Invensys official testified, the FPL project involved replacement of control instruments that plant operators would depend upon in the aftermath of a nuclear accident at the Turkey Point Plant south of Miami. An Invensys manager, testifying about the FPL project, recalled that my client had reported that the excessive work hours were contributing to errors on the project. Evidence showed that a crisis existed because staff health and performance were impaired by being made to work up to 100 or more hours per week, endangering critical tasks.

When Invensys fired Robinson—who has worked in nuclear power projects all over the United States—it then replaced him with a worker who had essentially no nuclear technology background and who had a license to operate a sewage treatment plant. Invensys lawyers have maintained that the feedwater control instruments developed for NPPD’s Cooper station—and the post-accident monitoring system developed for FPL’s Turkey Point plant—were not safety related, and that all problems related to the nuclear projects were solved.

Employee or Contractor?

In the lawsuit filed in California, my associates and I contended that our client was protected against wrongful discharge from employment under state law because he was a common law employee of Invensys. Thus, although he was a contract worker, Invensys managers supervised and controlled his work the same way as they did that of their direct employees. But the courts in Orange County decided otherwise. The judges there concluded that this state lawsuit was similar to the federal case of Lydia Demski, a contractor who had done some maintenance work at a Michigan nuclear plant, and who also had been fired after voicing safety concerns. The dismissal of her federal whistleblower claim was affirmed by the Sixth Circuit U.S. Court of Appeals in a 2005 decision (s ee, Demski v. U.S. Department of Labor, 419 F.3d