COLUMBIA, S.C. — A judge has ordered criminal charges dropped against the final executive accused of lying about problems building two nuclear reactors in South Carolina that were abandoned without generating a watt of power.
The judge tossed the charges Wednesday because ratepayers of the utility that lost billions of dollars on the project were improperly allowed on the grand jury that indicted Westinghouse Electric Co. executive Jeffrey Benjamin.
But federal judge Mary Geiger Lewis also ruled that nothing stops prosecutors from properly seeking another indictment.
"We're not going away," said Assistant U.S. Attorney Winston Holliday, who said prosecutors are still reviewing the ruling to decide their next steps.
Benjamin faced 16 charges, including securities fraud, mail fraud and causing the failure to keep accurate corporate records in his role in the failure to build two reactors for SCANA Corp. at the V.C. Summer site in Jenkinsville.
The project fell apart in 2017 after nearly a decade of work when executives and regulators determined construction of the reactors was so hopelessly behind schedule they could not get nearly $2 billion of tax breaks needed to help pay for the work.
SCANA contracted with Westinghouse to build the reactors. Prosecutors said Benjamin, who was in charge of major projects, knew of delays and cost overruns but lied to regulators, utility executives and others. The lies led to electric rate increases while keeping the price of SCANA's stock from plummeting.
Benjamin's lawyers asked for the indictments to be tossed because the grand jury pool was pulled from several counties where utility ratepayers on the hook to pay for the project were at least 60% of the population. Prosecutors didn't exclude them from the grand jury or assure they were not angry and biased against SCANA and the people involved in the project's failure.
"Mr. Benjamin's unequivocal Fifth Amendment right to an unbiased grand jury was compromised in this case," defense attorney William Sullivan Jr. said in a statement praising the judge's "lucid and articulate ruling."
Lewis called her ruling a "drastic remedy," but said it was necessary since prosecutors cited ratepayers as victims of Benjamin's lies and schemes along with investors and utility executives.
"It is common sense that in a robbery case, the person who allegedly had their belongings taken would be barred, as a victim, from participating in indicting the accused, no matter if there was a mountain of evidence against the accused or if the victim insisted they could remain impartial," Lewis said in her ruling.
Benjamin's trial had already been moved to Greenville after his attorneys said the broad coverage of the nuclear debacle and the majority of ratepayers in a jury pool would make a fair trial in the Columbia area impossible. Only about 10% of potential jurors around Greenville were SCANA customers.
Benjamin is the final executive to face charges.
Two former SCANA executives have been sentenced to federal prison after pleading guilty to their roles in lying to ratepayers, regulators and investors. Former CEO Kevin Marsh received two years, while chief operating officer Stephen Byrne was sentenced to 15 months.
Former Westinghouse project director Carl Churchman has pleaded guilty to lying to FBI agents investigating the project's failure and is awaiting sentencing.
The fiasco exposed problems in building nuclear reactors in the U.S., from drawing up easy-to-use construction plans to making them an affordable, carbon-free power source.
Earlier this week, Georgia Power Co. announced commercial power was finally being generated from its Unit 3 at Plant Vogtle, southeast of Augusta. The reactor was seven years late and $17 billion over budget — more than doubling the unit's original cost. It is the first nuclear reactor built from scratch in the U.S. in more than three decades.