About a month after three senators publicly took the Energy Department to task for allegedly allowing its contractors to browbeat and fire employees for raising safety concerns, the agency is proposing what it says are clearer, stricter rules to protect whistleblowers across the complex.
In a notice of planned rulemaking posted online late last week, DOE proposed changes to the federal rules governing its whistleblower program. Among the highlights, the agency said it will impose stricter standards on paying contractor court costs arising from whistleblower complaints, and clarify when, exactly, a whistleblower complaint concerns a serious nuclear safety issue.
Currently, federal rules do not spell out when DOE may punish contractors who retaliate against workers who allege violations of the agency’s legally binding nuclear safety requirements, according to the notice. DOE’s nuclear safety requirements, include, among other things, rules for managing nuclear materials, protecting workers from radiation, and keeping accurate records on nuclear sites.
Protecting contractor employees was among the top concerns expressed by three senators who two years ago asked the Government Accountability Office to investigate alleged whistleblower retaliation across the DOE nuclear complex. On July 14, that probe effectively concluded with the publication of a strongly worded GAO report that said DOE looked the other way while its contractors silenced, and in some cases fired, employees who broke the chain of command to report safety concerns.
“[T]he Department has gone to great lengths to ensure that employees can raise concerns about health, safety and management issues without fear of retaliation, Steve Croley, DOE’s general counsel, wrote in an Aug. 4 blog post publicizing the notice of proposed rulemaking. “Going forward, if a contractor employee calls attention to a radiation hazard that is in violation of a nuclear safety requirement and the contractor retaliates against the employee for raising the issue, the contractor may be subject to a civil penalty for creating the radiation hazard and the contractor may have to compensate the employee for the retaliation.”
Sen. Ron Wyden (D-Ore.), one of the three lawmakers who called out DOE in the July press conference that coincided with the release of the GAO report, was unmoved by the agency’s latest move, calling it too little, too late.
“When you turn in your assignment late, you shouldn’t get extra credit for it,” Wyden said in a statement emailed to the press Friday. “That’s what the Department of Energy is trying to do with this announcement … the department has known for three years it didn’t have adequate regulations for protecting workers who raise concerns about nuclear safety violations,” Wyden said.
Among the instances of contractor retaliation recounted in the July press conference hosted by Wyden and Sens. Claire McCaskill (D-Mo.) and Ed Markey (D-Mass.) were the cases of Sandra Black and Walter Tamosaitis.
Black, a former employee Savannah River Site management and operations contractor Savannah River Nuclear Solutions, alleged she was fired for cooperating with the GAO when it came to investigate whistleblower culture at the facility near Aiken, S.C. Black’s former employer denied firing her for that reason.
Tamosaitis, a former employee of URS Energy, now an AECOM subsidiary, gained national attention after he netted $4 million from the company in 2015 to settle a wrongful termination lawsuit. Tamosaitis says he was fired for pointing out design flaws in the Waste Treatment Plant could cause a hydrogen buildup that would result in a high-pressure explosion. In 2012, DOE called a halt to most construction on the plant, which is being designed to immobilize 56 million gallons of liquid radioactive and chemical waste left over from Cold War-era plutonium production at DOE’s Hanford Site near Richland, Wash. AECOM denied any wrongdoing by URS is agreeing to the settlement.
