DOE IG Opens Investigation into Busche Termination
Mike Nartker
WC Monitor
3/14/2014
Lawmakers expressed skepticism this week that the Department of Energy is adequately ensuring workers at one of its largest projects—the Hanford Waste Treatment Plant—are free to raise concerns without fear of retaliation. The dismissal in recent months of two contractor managers who have alleged they were retaliated against for raising issues at the project “contribute to a strong perception, both within Hanford and outside of it, that the contractors and the Department of Energy are failing to put an adequate emphasis on creating a strong safety culture,” Sen. Claire McCaskill (D-Mo.) said at a roundtable discussion with the two managers this week. Sen. Ron Wyden (D-Ore.) said the fact that the two were dismissed after such heavy emphasis has been placed on the safety culture at the Hanford vit plant “in my view underscores the fact that nothing has really changed at Hanford.”
New concerns over the safety culture at the WTP emerged last month when URS, a major subcontractor to Bechtel National on the project, fired Donna Busche, who had served as a key nuclear safety manager. Busche’s termination was preceded by URS’ decision last fall to lay off Walter Tamosaitis, who had served as manager of research and technology at the WTP until 2010 when he was removed from the project in a move Tamosaitis also said was in retaliation for raising safety and technical concerns. “Our major concern is that the treatment of these folks and others like this has sent a message throughout the safety culture that it’s not safe to raise an issue. That’s the message that cannot be allowed to stand. And it’s really up to the Department of Energy to make sure that that message is countered because right now we see that Bechtel and URS are winning the battle to silence employees out there,” Tom Carpenter, executive director of the watchdog group Hanford Challenge, said at the roundtable discussion.
Tamosaitis noted that he was laid off by URS shortly after Secretary of Energy Ernest Moniz and Deputy Energy Secretary Dan Poneman issued a memorandum stressing the importance of safety culture across the complex. “Now with the visibility of my case, several lawsuits and Moniz issuing that statement, if URS would blatantly just lay me off, dismiss me, get rid of me right after the Secretary issued such a cultural statement, what does it say about what they would do if there was no statement?” Tamosaitis said.
Termination ‘Really Hard Decision,’ URS Exec. Says
Both Bechtel National and URS have repeatedly denied that Busche and Tamosaitis were retaliated against for raising concerns—a stance senior executives from both companies reiterated at a hearing the Senate Subcommittee on Financial and Contracting Oversight, which McCaskill chairs, held this week. “An essential element of our success in completing technically challenging projects like WTP is creating and maintaining a strong safety culture that values a questioning attitude towards technical and safety issues,” said Bechtel National Principal Vice President Michael Graham, who also reiterated that Bechtel National played no role in Busche’s termination. URS has “zero tolerance” for retaliation against employees who raise concerns, said James Taylor, General Manager of URS’ Global Management and Operations Services unit. “Critical feedback and dissent are vital parts of our process, which is one of the reasons we encourage employees to raise concerns,” he said.
Taylor said that Busche was terminated for cause “due to her conduct and behavior,” noting later in the hearing that the move was “one of the toughest decisions I’ve made in my career.” He said, “It was brought to my attention through our employee concerns program where we had employees that filed complaints against Ms. Busche’s conduct and behavior. We investigated those. We validated those concerns. And I had to make the really hard decision to terminate Ms. Busche.”
DOE Informed of Concerns, But Not Termination
One aspect of Busche’s termination that has prompted questions is the fact that she was among those listed as “key personnel” in Bechtel National’s contract at the WTP. To make changes among key personnel, Bechtel National is required to first get approval from DOE. However, the contract does not specifically address when a subcontractor terminates someone who held a key personnel spot. DOE has said it learned of Busche’s termination after the fact and that URS had not sought the Department’s approval to fire her. Graham said he did not believe there is “a contractual obligation” to seek DOE approval if an employee is being terminated for cause. Sen. Ron Johnson (R-Wis.), the ranking member on the subcommittee, said, though, “That creates a problem for a whistleblower if it’s a safety issue, because a company could always then not notify and take the position that you’re obviously taking in this case, that the termination was for cause.”
URS informed the Department of the concerns raised over Busche’s behavior “out of courtesy,” but did not tell DOE about her termination until it was completed, Taylor said, also noting that he believed URS was not required to provide advance notice to the Department. McCaskill said, though, “It may not be legally required, but you think it might be a good idea to tell them that you were firing her under all those circumstances that you just delineated just from a management perspective?” Taylor said that “from a human resources standpoint … these are private issues with employees that go back,” before being sharply cut off by McCaskill. “You just said you already told them you had severe concerns with her conduct. You did that. You weren’t worried about her privacy then, that you had serious ongoing conduct issues.”
McCaskill added, “So you … didn’t hesitate to already poison the well, so to speak, but you didn’t think that … telling that you fired her was some how a kinder thing to her since she’d already done that? I mean, that doesn’t make sense to me. Why would you go to them in the first place and tell [them] you had problems with her? Unless you were papering the file.” She later told Graham and Taylor, “You guys have a serious problem in terms of whistleblower culture out there. And we’re going to have to do something to make sure that people understand … they are not going to be laid off, they’re not going to be fired for raising legitimate concerns.”
‘Do Something Other Than Ask for Another Report’
For its part, DOE has requested an Inspector General’s Office investigation into Busche’s termination, Matt Moury, Deputy Assistant Secretary for Safety, Security, and Quality Programs in DOE’s Office of Environmental Management, said at this week’s hearing. “This termination has raised questions about the potential of an improper reprisal for having raised health, safety or other protected concerns,“ Moury said. “For this reason, the Department has asked the Office of the Inspector General to review the circumstances surrounding the termination of Ms. Busche. The department will take appropriate action based on the outcomes of any IG investigation,” Moury said.
The IG’s investigation will be the second performed on Busche’s termination—McCaskill and Wyden, along with Sen. Ed Markey (D-Mass.), have also asked the Government Accountability Office to look into the matter. When asked by McCaskill, though, about what actions DOE could take if it was determined that Busche’s termination was an act of retaliation, Moury replied, “I don’t know exactly what those actions would be. They would be dependent on the results of the review.”
McCaskill appeared to be skeptical as to the effectiveness of another investigation into safety culture concerns at Hanford—the subject has also been reviewed by the Defense Nuclear Facilities Safety Board and DOE’s Office of Health, Safety and Security, among others. “You know, at some point in time the customer here needs to do something other than ask for another report because clearly it doesn’t appear that even the Secretary of Energy issuing a memorandum had much of a chilling effect on the company doing what they had to know was going to be two high profile dismissals,” she said.
DOE Has Not Reached ‘Maturity’ in Safety Culture
Both Moury and Bill Eckroade, Deputy Chief of Operations in DOE’s Office of Health, Safety and Security, noted the Department’s efforts underway to improve the safety culture at the WTP and across the DOE complex, which include performing reviews and increasing oversight, clarifying roles and responsibilities for management at the vit plant and increased training. Eckroade said Tamosaitis’ allegations had helped to prompt an “awakening” as to the importance of safety culture. “We have learned a lot about safety culture and how to assess it, but the Department is growing its competencies in this area as we understand the results of safety culture reviews,” he said, adding, “So, you know, although the Department has not reached maturity in a healthy safety culture, we are clearly learning the importance of it and growing in our abilities to manage it. But we still have a lot of problems left to manage.”
Eckroade’s comments, though, prompted a sharp response from Sen. Johnson. “The Department’s been around how many years? … For decades, right? And it’s been overseeing these nuclear waste sites for how many years? … And so now you’re saying that the Office of Health, Safety and Security two years ago were just really kind of coming into understanding and dealing with safety and security issues?” Johnson asked Eckroade. “We didn’t stick our heads in the sand; we kind of ventured out to try to learn about this. And we’re learning and growing, but we are not mature,” Eckroade replied.
Johnson went on to state, “It is a little mind-boggling, a little jaw-dropping that within the Department of Energy, overseeing an incredibly complex—I’ll give you that —very difficult issue … [that] it’s really been in the last couple of years that we’re kind of pulling our head out of the sand and going, boy, you know, we really ought to take a look at safety and security concerns." He added that “in business, the idea of a safety culture is not new, not by any stretch of the imagination. You have to have specific controls so that your employees, the people who work with you, know exactly what they need to do to raise safety concerns so they can be addressed, you know, very quickly. That’s what has to happen.”
Should DOE Reimburse Contractor Legal Expenses?
Throughout this week’s roundtable discussion and hearing, McCaskill also questioned DOE’s current policies of reimbursing contractors for their legal expenses incurred fighting lawsuits from whistleblowers until if and when a contractor is found guilty. Both Busche and Tamosaitis are in the midst of legal actions against WTP contractors. “I know how expensive it can be to get to a court of law, especially if one side has a lot of resources and the other side has zip. It puts the side with the superior resources in a commanding position. And you can see how that could be offensive if, in fact, those commanding resources are coming from the United States government,” she said. “I mean, it’s one thing to fight your employer when you feel like you have been treated badly. It’s a whole other thing when they’re being bankrolled by the United States government. And that’s why I think we’ve got to look at this issue because as long as you guys don’t admit guilt, it’s my understanding that the federal government picks up the tab,” she told Graham and Taylor.
McCaskill added, “You know, I don’t want to chill people wanting to do business with the federal government by them thinking that they’re going to be subjected to costly litigation. On the other hand, this doesn’t seem fair to me the way this is currently situation.”
DOE’s current policies provide no incentive for companies “to do the right thing,” Tamosaitis said this week. “Let the employee file a concern. We’ll drag the thing out. The government’s paying us to fight them. They hire outside attorneys. The outside attorneys are paid by the hour. They have no incentive to settle quicker. So the system … supports the contractors doing what they do and continuing to get paid,” he said.
