Changes announced by the U.S. Department of Energy to strengthen protections for nuclear whistleblowers don’t go far enough to fix deep-rooted problems unearthed in a recent audit, lawmakers and worker advocates say.
The audit, released last month, found that the DOE’s nuclear program rarely holds its civilian contractors accountable for unlawful retaliation against contract employees who raise concerns about health, safety, fraud and waste.
The lack of enforcement has led to the creation of chilled work environments at nuclear sites across the country, according to the audit performed by the Government Accountability Office at the request of three Democratic senators: Claire McCaskill of Missouri, Ron Wyden of Oregon and Ed Markey of Massachusetts.
The senators had asked the GAO in 2014 to look into persistent incidents of retaliation against whistleblowers reported at the Hanford nuclear reservation in Washington state.
Over the next two years, the probe expanded to review the handling of 87 contractor employee complaints filed at 10 of the DOE’s largest nuclear facilities, including Savannah River Site near Aiken, South Carolina.
One whistleblower, Sandra Black, said she was fired from her job as head of the employee concerns program at the Savannah River Site, also known as SRS, after she cooperated with GAO officials on the audit.
Steven Croley, the Department of Energy’s general counsel, did not mention the audit last week when he announced steps to strengthen protections for nuclear whistleblowers on the department’s website.
Croley wrote in a blog post that the department plans to issue detailed guidance to its personnel to clarify “if and when” the agency will reimburse contractors’ legal costs in whistleblower cases.
The Department of Energy paid more than $62 million in legal fees for contractors in 36 settlements from 2009 to 2013, even though there was no documented evidence that the costs were allowable under department policy, according to another audit released in February by the DOE’s inspector general. Three of those cases involved whistleblower complaints.
“Just because a company prevails in their defense does not necessarily mean they will be entitled to reimbursement costs,” Croley wrote.
He said the DOE also will propose a rule clarifying that the department can levy civil penalties against contractors and subcontractors for retaliating against employees who raise concerns about nuclear safety. The civil penalties would be in addition to any penalties for creating radiation hazards in the first place, Croley wrote.
He added that the department also is committed to strengthening its Employee Concerns Program, so that workers who don’t feel comfortable talking to their supervisors can feel safe reporting their concerns elsewhere.
The senators who’d requested the audit expressed disappointment with the timing and extent of the reforms.
“After years of repeated calls for reform, I’m glad DOE is finally prepared to make some changes that recognize its obligation to protect whistleblowers,” McCaskill said in a statement.
“But frankly,” she said, “it’s difficult to trust the lasting impact of this announcement when these proposals come only after a damning watchdog report.”
Wyden noted that the audit he and his colleagues requested revealed that the department has known for three years it didn’t have adequate regulations for protecting workers who raise concerns about nuclear safety violations.
“When you turn in your assignment late, you shouldn’t get extra credit for it,” Wyden said in a statement. “That’s what the Department of Energy is trying to do with this announcement.”
The DOE said in a statement on Monday that the changes announced last week were undertaken as part of an ongoing effort to protect whistleblowers. Those efforts have been expedited in response to the audit, the statement said.
“As our General Counsel explained in the blog post, these are just the latest in a series of broad, continuous Department actions to prioritize and advance employee protections,” the DOE said.
Nuclear safety watchdogs complain the reforms outlined by Croley are neither new nor effective.
“It is the same thin gruel offered up for the past 30 years, dressed up as news,” said Tom Carpenter, director at Hanford Challenge, a regional public interest group in Seattle.
The DOE put similar reforms in place in the 1990s – including a zero tolerance policy for reprisals and a proposed limit on the reimbursement of contractors’ legal defense costs – but those measures failed to address the problem,
Specifically, the reform about civil penalties has limited value, Carpenter said.
He pointed out that the DOE has had the power to bring civil penalties against contractors for whistleblower retaliation for decades, but has only done so twice in 30 years, as noted in the recent audit.
Carpenter also worries that the DOE seems to be narrowing the application of this provision to only include whistleblowers who raise nuclear safety or radiation issues, and not concerns about chemical vapor exposures, fraud, waste and abuse, violations of environmental regulations, etc.
“DOE keeps touting their broken programs to protect whistleblowers as if they actually work,” Carpenter said.