The Department of Energy has taken the initial step to make clear that it has the authority to fine contractors or subcontractors at nuclear sites including Hanford if they retaliate against workers raising nuclear safety issues.
It made public the proposed rule Thursday, following a July Government Accountability Office report requested by U.S. senators, including Sen. Ron Wyden, D-Oregon, and Sen. Claire McCaskill, the ranking member of the Homeland Security and Governmental Affairs Subcommittee on Investigations.
The GAO report found that DOE’s nuclear program seldom holds its contractors accountable for unlawful retaliation against whistleblowers.
Only two violations have been issued in the past 20 years, the report found.
DOE took enforcement action in 2005 and 2008, but then in 2013 concluded it had limited authority to hold contractors accountable for unlawful retaliation.
In May, more than a month after the GAO asked DOE to verify the accuracy of information in its report to Congress, DOE announced plans to amend its nuclear safety regulations, including making clear that retaliation against contractor workers who raised nuclear safety issues would be an enforceable nuclear safety violation, the report said.
When you turn in your assignment late, you shouldn’t get extra credit for it.
Sen. Ron Wyden, D-Oregon
“Given the potential for confusion regarding the enforceability of DOE’s policy, it is incumbent on DOE to act as quickly as possible to codify this policy in regulatory language to ensure that the enforceability of the policy is clearly understood,” the GAO report said.
Wyden was not impressed with the DOE proposed improvements.
“When you turn in your assignment late, you shouldn’t get extra credit for it,” he said in a statement. “That’s what the Department of Energy is trying to do with this announcement.”
He pointed out that DOE had known for three years that its regulations needed to be improved.
DOE also announced on Thursday new guidance for its employees responsible for issuing and administering contracts to make clear when DOE will reimburse legal costs in whistleblower cases.
A primary consideration will be whether a DOE contractor retaliated against a whistleblower, even if the whistleblower fails to win a legal action, said DOE general counsel Steven Croley in a blog post.
“Just because a company prevails in their defense does not necessarily mean they will be entitled to reimbursement costs,” Croley said.
We will ensure that the Employee Concerns Program is independent and free from conflicts of interest.
Steven Croley, DOE general counsel
Croley also said in the blog post that DOE will strengthen its Employee Concerns Program to provide an alternative for employees to report issues.
“We will ensure that the Employee Concerns Program is independent and free from conflicts of interest,” Croley said.
The GAO report said that, although DOE maintained separate employee concerns programs in addition to its contractors’ employees concerns programs, DOE can refer or transfer the concerns brought to its program back to the contractor.
DOE said some DOE sites did not refer any issues brought to its Employee Concerns Program back to its contractors, but one site transferred or referred 40 percent of issues brought to it. The report did not provide information about practices at specific sites, such as Hanford.
The practice of transferring or referring issues back to contractors could discourage employees from raising concerns and negates the benefit of having a DOE program independent of contractor programs, the report said. Routing cases back to contractors could jeopardize employee anonymity and impair the independence of an investigation.