Mike Nartker
WC Monitor
10/24/2014
The Department of Energy Inspector General’s Office was unable to determine if a former senior manager at the Hanford Waste Treatment Plant was terminated as an act of retaliation due to a lack of access to information from the main contractors involved on the project, according to a report released this week. The DOE IG had been tasked with investigating the circumstances surrounding the decision earlier this year by URS, a major WTP subcontractor, to terminate Donna Busche, who had served as a key nuclear safety manager on the project. Busche has charged she was terminated for raising safety concerns—allegations that URS and WTP contractor Bechtel National have repeatedly denied.
In its report, the IG said that because of “a material scope limitation” it was unable to determine whether Busche was retaliated against or not. “In short, Bechtel and URS told us that they could not provide access to several thousand contractor-generated emails and other documents that we believe were necessary to perform our examination of the Busche termination,” the IG said. “On the advice of outside counsel, both contractors took the position that the documents in question were subject to either attorney-client or attorney work product privilege. Also, URS made a unilateral determination that certain documents were not relevant to our examination,” the IG added.
According to the IG, Bechtel withheld 235 documents. URS initially withheld 4,305 documents, but the company later agreed to provide access to a portion of the 2,754 documents that URS “had concluded were non-responsive but which were not subject to the asserted attorney-client privilege,” the IG said. The IG noted that clauses in both Bechtel’s and URS’s contracts required thecompanies to produce for audit “all documents acquired or generated under the contract, including those for which attorney-client and attorney work product privilege was asserted.” The IG went on to state, though, “It was the position of counsel for both Bechtel and URS that these clauses were too broad and that they were unenforceable, specifically in situations where litigation was either in process or was likely.”
Senator Wants Answers from DOE on ‘Lack of Cooperation’ from Contractors
In a statement, DOE said it “regrets” that the IG was unable to provide an opinion. However, Sen. Claire McCaskill (D-Mo.), who chairs the Senate Subcommittee on Contracting and Financial Oversight, wants more information from the Department by the end of this month on its plans to address what she called a “lack of cooperation” by URS and Bechtel National with the IG’s investigation. In a letter to Energy Secretary Ernest Moniz this week, McCaskill wrote, “I request that the Department provide a briefing to the Subcommittee about DOE’s plans to address the contractors’ lack of cooperation with the Inspector General’s request. The briefing should also include the mechanisms that are available to the Department to hold the contractors accountable for their noncompliance, including withholding of fees and recovery of costs incurred by the Office of Inspector General.”
URS ‘Respects’ IG’s Findings; Bechtel ‘Disappointed’ With Report Language
URS said that it “respects” the IG’s decision not to render an opinion on Busche’s termination. “Ms. Busche’s claim is without merit. URS has a strong safety record and our corporate culture makes safety our highest priority. Each employee is encouraged and empowered to raise concerns about safety, and we are methodical in addressing the concerns they identify,” a company spokesperson said in a statement.
For its part, Bechtel National said it was “disappointed” in the language the DOE IG used in its report. “Bechtel went above and beyond in cooperating with the OIG’s investigation—providing requested documents for review and people to interview, in accordance with the protocol agreed to with the IG,” Bechtel spokesman Fred deSousa said in a written response. “Furthermore, we offered to work with the OIG to provide access to documents that are protected under the law, in a way that preserves those protections, but the OIG declined our offer.”
Former Employee ‘Disappointed’ in Report
Busche, who still has a claim pending with the Department of Labor, said she was “disappointed” in the IG’s report. “I think it really hurts DOE and makes them look bad,” she told WC Monitor. “If there’s anyone on the project who wants to raise a concern, they will never open their mouths.”
The IG’s report also prompted strong criticism from Tom Carpenter, executive director of the watchdog group Hanford Challenge. “The non-decision by the Inspector General rewards these contractors who are ignoring contract provisions and DOE requirements to cooperate with these kinds of investigations. If the shoe were on the other foot — if it were Busche who refused to cooperate — there is no doubt in my mind that the Inspector General would have hesitated to issue findings against her,” Carpenter said in a written response. “The Secretary of Energy is now on the spot on whether he will demand accountability from these arrogant contractors who have unilaterally asserted that they don’t have to honor their commitments and DOE requirements when it doesn’t suit them. In the end, this is another nail in the coffin for workers who, witnessing this charade, may decide to keep their mouths shut about serious safety concerns that could have catastrophic consequences down the road,” he said.
