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San Onofre Workers Lack State Whistleblower Protections

Safety Complaints High At Crippled Plant

Above: San Onofre Nuclear Generating Station

For the past four years, San Onofre Nuclear Generating Station has had the highest number of safety complaints of any nuclear plant in the country.

“That’s not the list you want to be on top of,” said nuclear power expert David Lockbaum of the Union of Concerned Scientists.

“I don’t think there is any doubt whatsoever that right now the workforce at San Onofre doesn’t trust management and when they have safety concerns they’re either not raising them at all or they’re raising them to the Nuclear Regulatory Commission as the only option they have available," he added. "That’s not the way it’s supposed to work. The workers are basically the canaries in the coal mine. They’re the first ones who see the problems. Their voices need to be heard, not ignored.”

San Onofre remains closed. Federal regulators say a design flaw caused excessive wear on tubes inside new steam generators. A break in a tube could cause radiation leaks. The debacle has again pushed nuclear safety to the forefront.

But in 2010, the Nuclear Regulatory Commission revealed that some San Onofre employees had told regulators they did not feel free to report safety concerns for fear of retaliation. What’s more, the NRC said that the plant had 10 times the industry median of complaints from workers

“That’s a huge problem for everyone in Southern California,” said attorney Maria Severson, who represents former San Onofre employee Paul Diaz. He said he was fired in 2010 after he came forward to his managers with safety concerns.

But Severson said Diaz is not protected by California’s whistle-blower laws – among the strongest in the nation -- because San Onofre sits on federal land ceded to Southern California Edison back in the 1960s.

“What’s unusual here is that if Mr. Diaz was working off the actual four corners of the San Onofre property and reported the same acts, he would be protected,” Severson said. "But because he happens to set foot on the federal enclave, those protections are not available.”

And Severson said that makes no sense.

“When you have a nuclear power plant on the populated shores of Southern California, I would think that you’d want to empower workers there to be able to speak freely about the problems you see there for the protections of all the citizens. That does not seem to be the case here,” she said.

The Nuclear Regulatory Commission did not respond to requests for comment. In a written statement, Southern California Edison said San Onofre employees are entitled to federal whistleblower protections. The company also said safety is the number one priority throughout all of its operations.

Last fall, regulators concluded Edison had made reasonable progress in addressing concerns workers made to the NRC. But so far this year, San Onofre is tied with one other nuclear plant in the country for the highest number of safety complaints to the NRC from workers. And that should raise red flags, said nuclear expert Lochbaum

“If the San Onfre workers felt comfortable reporting concerns to their management, they would use that option and not have to turn to the NRC instead,” Lochbaum said. “The fact that so many workers don’t trust management to resolve safety concerns is troubling.”

Lochbaum said there are federal rules that protect workers from harassment or retaliation for raising safety issues.

“The problem with the federal protection is that it is a little bit slow,” he said. “It takes sometimes many years to get to the bottom of the claim. In the meantime, if there is a pattern of discrimination that doesn’t necessarily get fixed soon enough, that doesn’t help much for future victims.”

Meanwhile, there is one way for San Onofre workers to benefit from California’s whistle-blower laws, according to California Western School of Law Professor Ricardo Ochoa. But it would take an act of Congress and perhaps, he said, such an act should not be restricted to California.

“Nuclear power plants, one could argue, are an important enough issue that you want some level of uniformity throughout the country.”

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Avatar for user 'CaptD'

CaptD | June 28, 2012 at 7:26 a.m. ― 4 years, 9 months ago

This is yet another RED FLAG that should point out how the Nuclear Industry has insulated itself from ANY WRONG DOINGS and that just does not make sense when reactors pose a Trillion Dollar Eco-Disaster RISK that SoCal cannot afford; especially since CA has spare capacity and they are not required any longer!

It is time to shutter these two nuclear turkeys and jump start CA's economy with their MEGA Billion Dollar decommissioning...

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Avatar for user 'Rogerthat'

Rogerthat | June 28, 2012 at 10:11 a.m. ― 4 years, 9 months ago

Athough some cases hold that State whistleblower statutes do not apply to federal enclaves, it is doubtful that the Supreme Court would uphold these cases today. In Howard v. Commissioners, 344 U.S. 624, 626 (1953), the Supreme Court abolished the "extraterritoriality" doctrine, and held that "the fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdtiction asserted by the federal government." The Court famously concluded, "It is friction, not fiction, to which we must give heed." In 1970 the Supreme Court in Evans v. Cornman, 398 U.S. 419, 422 (1970), relied on the "friction not fiction" doctrine to hold that the residents of federal enclaves had the right to vote in State elections. The Court reaffirmed that the residents of federal enclaves should be regarded as residents of the State, and noted that many State laws apply to federal enclaves. Unfortunately, three years later the Supreme Court in dictum in United States v. State Tax Commission of Mississippi, 412 U.S. 363, 375 (1973) favorably quoted the district court's erroneous assertion that federal enclaves are "foreign land" and "federal islands which no longer constitute any part of Mississippi nor function under its control." Cases that have recognized the conflict have held that non-conflicting State laws do apply to federal enclaves. Examples are State laws governing marriange and divorce, probate, motor vehicles, welfare benefits, mental health services, juvenile delinquency, child protection laws, and domestic violence restraining orders. Other cases, however, have relied on Mississippi Tax or pre-Howard cases to hold that State laws do not apply on federal enclaves. Examples are most State criminal laws, liquor laws, personal property taxes, some utility regulations, laws prohibiting racial discrimination and age discrimination, wrongful termination laws, whistleblower laws,wage and hour laws, and right-to-work laws. Given the weakness of the dictum in the Mississippi Tax case, I do not thinkd these court decisions would be upheld by the Supreme Court today.

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Avatar for user 'WhatsItAllAbout'

WhatsItAllAbout | June 28, 2012 at 11:39 a.m. ― 4 years, 9 months ago

Here is a link to a chart that will give you a better idea of the serious safety situation.

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Avatar for user 'KPBSjunkie'

KPBSjunkie | June 29, 2012 at 7:08 a.m. ― 4 years, 9 months ago

What a disappointing story! Thousands of workers are there and KPBS can't talk to a single one! Instead, in a story about SONGS workers, we hear from two people who don't even work there, and likely have not even set foot on the property. Many of the workers are represented by their unions such as the UWUA, IBEW & LIUNA. These unions are easy to contact and I am sure can provide insights to the story. This seems like a case of drive-by journalsim to me.

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Avatar for user 'benz72'

benz72 | June 29, 2012 at 9:50 a.m. ― 4 years, 9 months ago

Thank you for including the source document link to let readers know that the tie was at 13 complaints (vice say 300). A link to the actual complaints (and a description of their immediacy) would be very useful as well.

NUREG/BR-0240, Revision 1 addresses worker reports of safety discrepancies as well as confidentiality and protection against reprisal. Specifically, firing is listed as prohibited (P6). It is not clear what additional protections the California law grants beyond that. Presumably the state law also has an administrative review process. How long does it take, on average, to resolve a claim in state court?

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