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OSHA Reinstates ERA Whistleblower and Issues Daunting Preliminary Order




by:
Michael J. Graham
Harris Michael Mufson
Steven J. Pearlman
Proskauer Rose LLP - New York Office

 
May 29, 2013

Previously published on May 28, 2013

On May 15, 2013, OSHA determined that Enercon Services Inc. (Company), an engineering firm that provides nuclear power facilities with engineering support services, violated the whistleblower provisions of the Energy Reorganization Act (ERA). OSHA Regional News Release, 13-822-KAN (May 20, 2013). As a result, it ordered reinstatement and a host of other severe penalties. OSHA’s findings can be accessed and the Company announced its intent to appeal.

Background

During the spring and summer of 2011, in response to Nuclear Regulatory Commission (NRC) security enhancement requirements, Wolf Creek Generating Station (Wolf Creek), a nuclear power plant and generating station in Kansas City, Missouri, began constructing a security fence around its Essential Service Water (ESW) Pump House, which circulates water to cool the plant. Regulations require a minimum 4 foot 6 inch soil coverage zone over all ESW piping.

Wolf Creek contracted with the Company to provide engineering support for construction of the fence. Despite an Enercon engineer’s report that highlighted the minimum soil coverage zone, a work order and fence construction purportedly failed to adhere to soil coverage requirements. The engineer reported the violation to two project managers who relayed the information to a Wolf Creek engineering supervisor. The engineer also allegedly informed the Company that the Company’s plan to backfill concrete over the ESW pipes, in an attempt to remedy the soil coverage zone deficiency, was insufficient to satisfy safety requirements. Shortly thereafter, according to OSHA’s findings, Wolf Creek requested that the Company relieve the engineer of his duties as civil/structural engineer ... .” The next day, the Company terminated the engineer’s employment.

According to OSHA’s findings, the Company asserted that the engineer bore the ultimate responsibility for the engineering errors, and the engineer “disengaged himself from [the Company’s] effort to fix the problem he created.” OSHA was not persuaded, and emphasized that the work order ignored or failed to incorporate the engineer’s soil coverage instructions, and that a witness confirmed that superintendents, not the engineer, caused the errors. In addition, OSHA determined that the engineer engaged in protected activity when he reported the soil coverage and backfill violations. OSHA also found that the engineer attempted to remedy the backfill violation up until his employment termination, and that those efforts also constituted protected activity. OSHA determined that the temporal proximity between the engineer’s protected activities and his employment termination supported a finding that the Company violated the ERA whistleblower provisions.

OSHA awarded reinstatement, back pay, interest, compensatory damages and attorneys’ fees of more than $260,000 to the engineer. The Company issued a statement indicating its intent to appeal and reasserted that the Company terminated the engineer’s employment for legitimate business reasons unrelated to the engineer’s alleged safety concerns.

Implications

OSHA’s preliminary order and harsh penalties in this matter reflect its vigilant enforcement of myriad whistleblower laws. We will monitor the appeal of this decision and keep a close eye on whether OSHA seeks to enforce its preliminary reinstatement order in federal court.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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