Report: Department of Energy fails to protect nuclear whistleblowers | McClatchy Washington Bureau

When Sandra Black’s colleagues came to her to report unsafe, illegal or wasteful practices at the Savannah River nuclear facility in South Carolina, she assured them that the U.S. Department of Energy would not tolerate retaliation against them.

“Now I know that wasn’t true,” said Black, of Martinez, Georgia.

As the head of the site’s employee complaints program, Black was required by her job to evaluate such concerns and protect employees who raised them.

Then she herself was fired, allegedly because she’d cooperated with government auditors who were investigating retaliation against whistleblowers, according to a highly critical Government Accountability Office report released Thursday.

The report found that the DOE’s nuclear program almost never holds its civilian contractors accountable for unlawful retaliation against whistleblowers.

The department relies more heavily on contractors than any other civilian federal agency does. Ninety percent of the DOE’s budget is spent on contracts and large capital asset projects.

Yet the agency has taken little or no action against contractors responsible for creating chilled work environments at nuclear sites across the country, and has failed to create effective policies for doing so, the report says.

Only two violation notices have been issued against contractors in the past 20 years, according to the report.

“All the words that the (U.S. Department of Energy) proclaims about wanting to have a strong safety culture, a safety-conscious work environment and that it has zero tolerance for retaliation are a pretense,” Black said at a news conference on Capitol Hill, her voice shaking with emotion.

“It is impossible to explain how devastated I am,” she said. “I did nothing wrong.”

The report was released at a news conference Thursday held by three Democratic senators who’d requested the investigation more than two years ago: Claire McCaskill of Missouri, Ron Wyden of Oregon and Edward J. Markey of Massachusetts.

The senators initially had asked the GAO to get to the bottom of persistent incidents of retaliation against whistleblowers reported at the Hanford nuclear reservation in Washington state. The scope of the GAO’s review soon broadened to the handling of 87 contractor employee complaint filed at 10 of the DOE’s largest nuclear facilities, including Savannah River Site near Aiken, South Carolina.

“The three of us have been doing this awhile, and I think it would be fair to say we thought that we had seen it all,” Wyden said. “Today, however, it seems that there’s a whole new precedent. We’re talking about a contractor who was retaliated against for actually helping government auditors investigate retaliation against whistleblowers.”

Black’s firing was a new low, Wyden said. “Auditors couldn’t identify a single instance where someone providing information to them had ever been dealt with in this way,” he said.

“It’s clear that DOE contractors are going to go to amazing lengths to send the message to their employees that when you blow the whistle it’s going to be the end of your career,” he said.

McCaskill said the report confirmed her fears that the DOE was not taking the problem seriously enough.

“I know we have heard the secretary of energy and his predecessors saying that things will get better, but based on the findings of this report released today, it’s clear that things are not getting better,” she said.

The report verified that contract employees at the DOE’s nuclear sites “are working in an environment that is not open, not safety conscious and hostile to whistleblowers,” she said.

One particular point of concern, McCaskill said, is the report’s finding that the DOE hasn’t been making full use of a pilot program she’d helped put in place to enhance whistleblower protection for contract employees.

The report says the DOE has not taken steps to evaluate the pilot program’s merits and could not even tell investigators which contractors had adopted it and when.

Two of the DOE’s largest nuclear facilities, Savannah River Site and Hanford, “had not bothered to implement the program” at all, McCaskill said.

“I don’t know what kind of power these contractors have, but it’s amazing to me that we aren’t willing to step up and give these employees who are working in nuclear facilities the same kind of protections as federal employees,” McCaskill said.

The pilot is scheduled to expire in January, although the senator said legislation to make it permanent would be introduced in the House of Representatives soon.

The DOE’s policy already requires contractors to maintain safe environments for employees to report concerns about health, safety, fraud and abuse. If there is sufficient evidence that a contractor has created a chilled work environment, the DOE can hold it accountable.

But as the report notes, “it is unclear what would constitute sufficient evidence” because the DOE’s policies are too vague.

The DOE said in a statement Thursday that the agency was working to emphasize the importance of a safety culture with the department’s leadership. It’s also looking into the possibility of assessing civil penalties against contractors for retaliating against employees who raise nuclear safety concerns.

The DOE agreed with the report’s recommendations to strengthen its employee concerns program and revise its policies.

The agency will continue efforts “to foster a work environment that encourages open communication, a questioning attitude and an organizational culture that promotes the free expression of safety concerns by our workforce,” the statement said.

Watchdog groups said the report underscored the need for Congress to strengthen whistleblower protection laws. Among those changes, they said, should be punitive damages against contractors to deter reprisals against whistleblowers and giving whistleblowers at DOE facilities direct access to federal court jury trials instead of the lengthy bureaucratic complaint process through the Department of Labor.

Above all, said Jay Coghlan, executive director of Nuclear Watch New Mexico, nuclear weapons contractors should be barred from using unlimited taxpayer money against whistleblowers in legal proceedings.

“The GAO’s findings of abysmal whistleblower protection at the Department of Energy are not by accident or coincidence,” Coughlan said. “DOE whistleblower retaliation is historic, systemic and by design, seeking to suppress public knowledge of the inside secrets of the dirty nuclear weapons business.”

Investigators say in the GAO report that Black was fired allegedly for cooperating with the agency, a claim Black made in a federal whistleblower complaint against site contractor Savannah River Nuclear Solutions.

Black said she was pressured by her superiors to alter or close some investigative reports. She also was pressured to disclose the identities of employees who brought up questions, she said.

In one case, a senior Savannah River Nuclear Solutions official told her he wanted to know the name of the “rat’’ who’d prompted an investigation of hazardous gas cylinder releases, but Black refused. She said it was vital to maintain a whistleblower’s confidentiality.

Black said she was fired in January 2015 after she talked with the GAO. Even though Black had never been disciplined in three decades of working at Savannah River Site – in fact, she had been promoted and rewarded with bonuses – human resource representatives told her she was being fired for an unsatisfactory job performance, her Labor Department complaint says.

Black said Thursday that her very public termination had had a “chilling effect” on other workers at the site, an assertion echoed in the report’s findings.

One employee there told auditors, “They fired (Sandra Black). What do you think they’re going to do to me?”

Others said, “They will make an example of anyone who challenges them” and, “They are eventually going to terminate anyone who files a concern with DOE.”

Those who do come forward face ostracization and long, expensive legal battles.

Walt Tamosaitis, who was fired after raising safety concerns about the handling of radioactive waste at Hanford Nuclear Reservation in Washington state, spoke at Thursday’s news conference about his sense of profound alienation the day he was fired as the manager of research and technology at Hanford’s waste vitrification plant.

“I was told to hand over my phone, BlackBerry, badge, keys and leave the site,” he recalled. “I was escorted to the door and told not to come back. I was not given any reason for it. It was the loneliest day of my life.”

After a five-year legal battle, Hanford subcontractor URS settled a lawsuit Tamosaitis had brought for $4.1 million.