The Department of Energy looked the other way for decades while its contractors on major nuclear cleanup projects illegally intimidated or fired employees who raised safety concerns, according to a report published Thursday by the Government Accountability Office.
“DOE has infrequently used its enforcement authority to hold contractors accountable for unlawful retaliation, issuing two violation notices in the past 20 years,” GAO wrote in the report.
GAO, the investigative arm of Congress, spent two years preparing the report at the behest of three Democratic senators, who on Thursday appeared alongside two prominent contractor whistleblowers in a scathingly critical Capitol Hill press conference live-streamed to YouTube. The lawmakers rained fire on DOE while video cameras rolled, claiming the agency has let its contractors run roughshod across the complex, bully employees for raising safety questions, and then charge the agency for whatever legal costs arise when whistleblowers take their cases to court.
“In my view, the department is guilty of willful negligence at best, and at worst, actively aiding in the violation of whistleblower rights,” Sen. Ron Wyden (D-Ore.) told reporters.
Wyden, a member of the Senate Energy and Natural Resources Committee, spoke alongside Sens. Claire McCaskill (D-Mo.) and Ed Markey (D-Mass.), both longtime advocates for whistleblower protection at DOE. McCaskill is the ranking member of the Senate Committee on Homeland Security and Governmental Affairs permanent subcommittee on investigations.
Among the most serious allegations in the GAO report is that Savannah River Nuclear Solutions (SRNS), prime operations contractor for the Savannah River Site near Aiken, S.C., fired Sandra Black, former manager of the company’s employee concerns program, for cooperating with the 2014 GAO investigation that informed the watchdog’s latest report.
The report covers a two-year investigation that began in 2014 and covered 87 whistleblower cases at 10 DOE sites and agency headquarters, including its three largest defense nuclear facilities: the Savannah River Site; the former Hanford plutonium production site near Richland, Wash.; and the Los Alamos National Laboratory in Los Alamos, N.M. GAO checked on cases filed between 2009 and 2014 by contractor employees, according to the 71-page report, “Whistleblower Protections Need Strengthening.”
Black appeared at the press conference alongside Walter Tamosaitis, another prominent whistleblower.
Black read tearfully from a prepared statement detailing what she said was a swift and public firing at the hands of Savannah River Nuclear Solutions President and CEO Carol Johnson. Johnson allegedly fired the a 37-year company veteran simply for speaking with the GAO about whistleblower complaints and retaliation at Savannah River.
“At first, I thought the SRNS president was listening to me,” Black said. “But I have since found out that within days of my disclosures to the president of my GAO conversations and own complaints of retaliation against me for trying to do my job, the president made the decision to terminate me.”
The company immediately and forcefully denied Black’s version of events Thursday.
“SRNS did not terminate Sandra Black for her cooperation with the GAO in the fall of 2014,” a company spokesperson wrote in a Thursday email to Weapons Complex Monitor. “We deny, in the strongest possible terms, that Ms. Black was terminated for an improper reason or in violation of any law or regulation. SRNS disputes Ms. Black’s version of events and we are in the process of vigorously defending against her allegations through the appropriate legal channels.”
Also, the SRNS spokesperson wrote, “it should be noted that, despite the repeated assertions to the contrary in the press conference, SRNS is paying for the defense of this case out of corporate funds. SRNS is not being reimbursed for these legal expenses by the Department of Energy.”
DOE and its contractors each operate separate employee concerns programs. Ostensibly, contractor employees at agency sites can use either program to anonymously report potentially serious safety issues, included those that could lead to a significant nuclear safety violation.
The trouble with that structure, GAO said in the report, is that DOE typically refers whistleblower complaints about contractors — and complaints about crackdowns against whistleblowers — right back to the contractor’s’ employee concerns program, into which the department has little insight, GAO said.
“DOE’s practice of transferring or referring contractor employee concerns back to the contractor may compromise the [employee concerns program’s] independence, which, in turn, may discourage contractor employees from raising concerns,” GAO wrote in the report.
At one site the report did not identify, in a year the GAO did not specify, a DOE contractor filed a Freedom of Information Act request to obtain records of an employee’s interaction with the contractor’s employee concerns program. That contractor then summoned employees to an all-hands meeting and warned employees not to use the employee concerns program. Subsequently, GAO’s report says, fewer employees of that particular DOE contractor did.
Among the suggestions from GAO’s six formal recommendations from the report are: that DOE speed up an ongoing review of its employee concerns program; codify that retaliation against employees who raise concerns about nuclear safety violations is itself a nuclear safety violation; make clearer when the agency’s employee concerns program may refer complaints about a contractor back to a contractor; and evaluate whether a pilot whistleblower program managed by the DOE Inspector General’s Office, and set to sunset next year, has worked better than the established whistleblower programs.
The department, in a reply appended to the report, said its inspector general alone had the authority to evaluate the pilot whistleblower program, and that the agency at large would not concur with that GAO recommendation. However, a DOE spokesperson in Washington said the agency concurred with the other recommendations, and that it was making progress reviewing its in-house employee concerns program.
“The Department of Energy agrees with the GAO’s recommendations, recognizing that sustaining a healthy safety culture is a continuous endeavor. That is why we intend to strengthen the Employee Concerns Program, review and revise our Integrated Safety Management Policy and continue to foster a work environment that encourages open communication, a questioning attitude and an organizational culture that promotes the free and open expression of concerns by workers,” a DOE spokesperson in Washington wrote in a Thursday email.
The GAO apparently has heard that one before.
“DOE officials told us they believe changes to the ECP order are needed to address contractor-provided ECP oversight, among other things,” GAO wrote in its whistleblower report. “However, according to DOE officials, efforts to revise the order have been ongoing since 2008.”
In an agency response appended to GAO’s report, DOE said it would finish these revisions by June 30, 2017 — about one year from now, and about two years after Tamosaitis, the other former DOE contractor who spoke at Thursday’s press conference, settled up his own claim of whistleblower retaliation at the Hanford Site near Richland, Wash.
Tamosaitis’ story is well known. Retelling it for the cameras, the former deputy chief process engineer and research and technology manager for the Waste Treatment Plant under construction at Hanford, said he was fired twice earlier this decade after raising safety and design concerns at URS Energy & Construction. The company, now part of AECOM, is the main subcontractor for Bechtel National Inc. of San Francisco on the Waste Treatment plant: a multibillion-dollar facility that eventually will turn 56 millions of gallons of chemical and radioactive waste into more easily storable glass.
AECOM settled a lawsuit filed by Tamosaitis for $4.1 million in 2015, but said it did so to avoid the cost and distraction of litigation and denied any retaliation against the former URS employee. The company disputed that Tamosaitis was ever fired in 2010, as he himself repeatedly said in Thursday’s press conference.
“In 2013, Walt Tamosaitis was laid off as part of a larger company reduction in force due to budgetary constraints in our federal sector business,” the AECOM spokesperson wrote in a Thursday email.
Tamosaitis said he did indeed return to URS after being told suddenly, on the morning of July 2, 2010, to turn in his phone, Blackberry, keys, and badge, and leave Hanford forever.
The 44-year nuclear industry veteran said his second stint at URS was a lonely new detail, during which he worked alone in a basement room. At one point between the 2010 incident and his final termination in 2013, Tamosaitis found himself alone in the basement with a big snowstorm rolling in; none of his colleagues told him the office had closed early, he said in the press conference.
Tamosaitis’ claim that design flaws in the Waste Treatment Plant could cause a hydrogen buildup that would result in a high-pressure explosion was among the reasons DOE suspended work on large parts of the plant in 2012.
Yet for all that, Tamosaitis said Thursday, “I’m optimistic that the plant will finally be built the right way.”
After Tamosaitis and Black spoke, McCaskill returned to the podium to condemn what she called DOE’s “eyes on, hands off” approach to its contractors’ treatment of whistleblower concerns. It is an approach, she said, that will have to change after the U.S presidential election in November, and the inevitable turnover in DOE leadership that will follow.
“We’ve got to make sure that the next secretary of energy understands what a priority this has to be,” McCaskill said. “And if they don’t understand that, I think they’ll have trouble getting confirmed.
