Top SCANA executive takes the 5th in SC nuclear fiasco lawsuit

A former top executive at South Carolina’s defunct SCANA power company has taken the Fifth Amendment in a deposition in a civil case, invoking his right against self-incrimination, according to court filings.

Stephen Byrne, SCANA’s former executive vice present, who in 2016 made some $2.5 million in salary and stock bonuses, invoked his right not to answer questions that could incriminate him in a separate, confidential federal criminal proceeding involving the calamitous failure of the 2017 V.C. Summer nuclear plant project in Fairfield County, court filings said.

Byrne was undergoing a deposition — sworn pretrial testimony — last week when he declined to answer questions and invoked his right to avoid self-incrimination, court records said.

The civil suit, on which negotiations for settlement are proceeding, grew out of the surprise failure of the $9 billion effort to build two nuclear reactors at the V.C. Summer site in Fairfield County.

Byrne’s invoking the Fifth Amendment shows that an FBI investigation into allegations that potential criminal wrong-doing — and not simply incompetence or mismanagement — into the failure of the V.C. Summer nuclear project is continuing.

Lawyers “taking Mr. Byrne’s deposition repeatedly asked questions that go directly to the core of the Department of Justice’s ongoing criminal investigation into the construction and abandonment of V.C. Summer (nuclear) units 2 and 3 or that provide a potential link in the chain of inculpatory evidence the government seeks,” Byrne’s lawyers wrote in the filing.

The U.S. Attorney’s Office in Columbia has not said when its investigation will conclude.

Byrne is now the third former top SCANA executive who has invoked the constitutional right not to answer self-incriminating questions on an ongoing state civil case.

The other two are:

▪ Kevin Marsh, the former SCANA CEO, who made $6.1 million in 2016 in salary and bonuses. He took the Fifth Amendment on Nov. 21 of last year.

▪ Jimmy Addison, the former SCANA chief financial officer. He had $2.5 million in salary and stock bonuses in 2016. He pled the 5th on Nov. 4.

University of South Carolina School of Law associate professor Seth Stoughton said that people who invoke the Fifth Amendment are not automatically guilty of a crime.

“The Fifth Amendment can be invoked when there is an appreciable risk that something someone says could be incriminating,” Stoughton said.

“We always say, it’s better to tell the truth, and the refusal to talk is something that intuitively we view as incriminating,” Stoughton said. “Legally, though, it is not incriminating. We have the right to refuse to provide information if we think the government might try to use that information against us. That mechanism exists to protect the individual from the overwhelming power the government might bring to bear.”

In July 2017, without warning, SCE&G and Santee Cooper — the junior partner in the joint venture — abruptly announced the nuclear construction project was a failure. The sudden abandonment surprised many because both companies had for years been issuing statements about how well the nuclear venture was going.

Court records have since documented that the project was plagued by mismanagement. Various civil lawsuits allege corporate fraud and charge that SCANA executives knew the project was a disaster but kept making positive public statements about it to keep their salaries and bonuses.

The stock prices of SCANA, a publicly traded company, rose steadily until the project failed. SCANA, plagued by debt, was since sold to an out-of-state utility, Dominion Energy.

But while the nuclear project was supposedly being built, both SCANA and Santee Cooper kept increasing their monthly bills to ratepayers to pay for the project.

In 2008, Santee Cooper and SCANA signed an agreement with the lead nuclear contractor, Westinghouse, to proceed with the project, according to court records. The agreement called for both nuclear reactors to be finished by January 2019 at a cost of $12 billion.

But “as early as 2013,” top SCANA officials knew about cost overruns that put the project in jeopardy, according to the lawsuit in which Byrne, Marsh and Addison have refused to testify.