Inspector general cannot complete Hanford whistleblower investigation

The Department of Energy’s Office of Inspector General has been unable to complete its review of the firing of Hanford whistleblower Donna Busche because thousands of documents have been withheld by contractors, it said Monday.

The review by the independent office was requested by the DOE Office of the Secretary, but senior DOE officials were not successful in getting the documents released, said a memo by Inspector General Gregory Friedman.

Bechtel National, the DOE contractor designing and building the Hanford vitrification plant, and its prime subcontractor, URS Energy and Construction Inc., told investigators that they could not provide access to several thousand contractor-generated emails and other documents. Outside attorneys told both companies that the documents were subject to attorney-client privilege or could be withheld as attorney work products.

URS also made a unilateral determination that certain documents were not relevant to the investigators’ review.

The Office of Inspector General said that without the requested documents, it was unable to form an opinion on Busche’s termination, Friedman said in the memo.

“It is unacceptable that the Department of Energy’s own inspector general, acting on a request from the secretary of energy himself, could not obtain the documents from its contractors that were necessary to investigate why a whistleblower was fired,” said Sen. Ron Wyden, D-Ore., who has followed Hanford whistleblower issues closely.

“This is yet another example for why DOE needs to change the way it does business and give whistleblowers the protections they deserve,” he said.

Sen. Claire McCaskill, D-Mo., called on DOE to provide the subcommittee she leads a briefing by the end of the month about its plans to address the contractors’ lack of cooperation. The Senate Subcommittee on Financial and Contracting Oversight held a hearing in March on alleged retaliation against Hanford whistleblowers.

The DOE briefing to the subcommittee should also include information on how the department can hold contractors accountable for withholding information, including by docking their incentive pay and recovering the costs incurred by the Office of Inspector General, she said in her request to DOE Monday.

Busche was a URS employee and manager of environmental and nuclear safety at the vitrification plant until she was fired Feb. 18.

She previously had filed claims with the Department of Labor and a lawsuit in federal court, saying she feared that she would be fired in retaliation for raising safety issues concerning the operation of the $12.3 billion plant. Her job was to verify the plant’s design would result in safe operation of the plant.

URS has strongly denied that she was fired for raising issues, with one official testifying before a congressional committee that an individual had raised concerns about Busche’s conduct. The concerns were not disclosed.

Busche dropped her federal lawsuit after she was fired, saying she planned to file an updated complaint with the Department of Labor. If the Department of Labor fails to take action within a year, she would be free to file a new case in federal court.

Attorneys for Bechtel and URS said withholding documents on the basis of attorney-client privilege was necessary, given the likelihood of litigation.

Bechtel withheld 235 documents and URS withheld 4,305 documents, according to Friedman’s memo. But URS later agreed to provide access to a portion of the 2,754 documents that URS had concluded were not relevant and that URS did not believe were covered by attorney-client privilege.

The DOE contract that Bechtel works under requires Bechtel and URS to provide all documents generated under the contract for any government audit, according to Friedman’s memo. However, attorneys for both companies said that the clauses in the contract between DOE and Bechtel and the contract between Bechtel and URS were too broad and could not be enforced in situations in which litigation was likely.

“Bechtel went above and beyond in cooperating with the inspector general’s investigation, providing requested documents for review and people to interview,” the company said in a statement.

Bechtel said it offered to work with the Office of Inspector General to provide access to documents that it believes are protected under the law in a way that preserves those protections. However, investigators declined the offer, Bechtel said.

The Office of Inspector General disagreed.

Bechtel did cooperate in some ways with the investigation and offered a process to go forward on the specific documents in question, the office said in a statement.

But Bechtel “never proposed a solution which addressed the legitimate needs of the Office of Inspector General to have unfettered access to all documents needed to complete our review,” the office said.

Both DOE and Bechtel said the decision to fire Busche was made by URS.

DOE acted promptly to produce all requested information in its possession for investigators and regrets the review could not be completed and an opinion provided, it said in a statement.

“The department expects that its federal and contractor employees are able to work in environments free from retaliation for raising safety or technical concerns,” which led to the request for a review, DOE said.

URS said in a statement that it respected the inspector general’s decision not to provide an opinion.

If Busche were the one refusing to cooperate with the investigation, the inspector general would not have hesitated to issue findings against her, said Tom Carpenter, executive director of employee watchdog group Hanford Challenge.

A finding should have been issued based on the evidence available, he said.

“The secretary of energy is now in the spotlight on whether or not he will demand accountability from these contractors who have unilaterally asserted that they don’t have to honor their contractual and legal commitments,” Carpenter said.

“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.

This story was originally published October 20, 2014 at 8:42 PM with the headline "Inspector general cannot complete Hanford whistleblower investigation."