DOE Heavily Criticized in New Nuclear Whistleblower Program Audit

September 27, 2016
Michael A. Filoromo, III

The Department of Energy (“DOE”) touts the importance of safety in the nuclear industry – and with good reason. The impact of a catastrophic failure at a nuclear plant can last for years and affect people who live far from a reactor. Even smaller-scale safety deficiencies can seriously harm hundreds of workers. Despite its stated emphasis on compliance, however, the DOE does little to protect civilian contractors who speak up about nuclear safety issues, according to a scathing report issued by the Government Accountability Office (“GAO”) on July 14 of this year.

The GAO Report

The GAO audit report, entitled “Whistleblower Protections Need Strengthening,” was requested by Congress in 2014 in response to repeated complaints of retaliation at the Hanford nuclear site in Washington. The scope of the audit expanded to include a broad review of how the DOE handles whistleblower complaints at its nuclear sites.

In its report, the GAO blasted the DOE for failing to use its enforcement authority to hold civil contractors accountable for retaliation, noting that it has done so just twice in the past two decades. The GAO also noted that despite the DOE’s stated policy of preventing a “chilled work environment” – one in which employees fear retaliation if they complain about dangerous or illegal practices – the DOE has not clearly defined what constitutes a chilled environment, nor has the agency taken concrete steps to prevent contractors from maintaining such an environment. (Incredibly, at least one contractor claimed to have been terminated for cooperating with the GAO audit.) The GAO also sharply criticized the DOE for paying tens of millions of dollars to reimburse contractors for legal fees expended in defending whistleblower retaliation claims by employees.

The GAO Recommendations

The GAO made six recommendations to improve protections for whistleblowers and increase compliance in the DOE nuclear program:

  1. Implement an independent process to routinely and accurately measure contractor employees’ willingness to raise safety and other concerns without fear of retaliation;
  2. Revise the DOE order that mandates Employee Concerns Programs (“ECP”) to ensure that the ECPs function independently and that they aid, rather than inhibit, whistleblowers;
  3. Evaluate and advise Congress of the effectiveness of the whistleblower pilot program created in 2013 under the National Defense Authorization Act (“NDAA”) to protect certain government contractors, including DOE contractors;
  4. Expedite the issuance of rules that make clear that retaliation for reporting nuclear safety issues is itself a nuclear safety violation;
  5. Obtain information from the Department of Labor regarding substantiated cases of whistleblower retaliation, and take enforcement action against offending contractors; and
  6. Revise DOE guidance regarding “chilled work environments” to clarify the meaning of the term and the steps for holding contractors accountable.

In some form, the DOE accepted all but the third recommendation, but agreed to compare the NDAA pilot program with the DOE’s preexisting program.

The question for nuclear whistleblowers and their attorneys is whether the report and the DOE’s stated commitments will strengthen protections for employees. Some commentators have noted that the DOE has had the authority for decades to hold contractors accountable for retaliatory conduct but has failed to take meaningful, effective action. These individuals question whether the DOE will follow through.

Current Protections for Nuclear Whistleblowers

It is important to bear in mind that no changes in compliance and enforcement efforts by the DOE will prevent all retaliation. But employees should understand that they do have rights if they experience retaliation that they can vindicate without action by the DOE. For example, the Energy Reorganization Act (“ERA”) contains an anti-retaliation provision that protects nuclear whistleblowers. The ERA allows employees to file a charge with the Occupational Safety and Health Administration (“OSHA”), who may investigate the charge, issue findings and order remedies.

The contractor whistleblower pilot program created under the NDAA also provides remedies to employees of any federal contractor, subcontractor or grantee, including those in the nuclear industry. The pilot program is broader than the ERA. In addition to protecting employees who make disclosures about risks to safety, the pilot program also applies to complaints relating to gross mismanagement; fraud, waste and abuse of authority; and a violation of law, rule or regulation related to a federal contract. Under the pilot program, an employee must first file a complaint with the Inspector General of the DOE (“DOE-IG”) but has the right to file suit in federal court if the DOE-IG denies relief. The employee may also “kick out” the complaint and file in federal court if 210 days have passed since the filing of the IG complaint.

An individual who believes he or she has experienced retaliation for complaining about nuclear safety issues or other illegal conduct should contact an attorney promptly. An experienced whistleblower lawyer can assess your situation and explain which legal option may be best in your case.

Our Offices

Washington, DC
Katz Banks Kumin LLP

11 Dupont Circle NW, Suite 600
Washington, DC 20036

Phone: 202-299-1140
Philadelphia, PA
Katz Banks Kumin LLP

1845 Walnut St., 25th Floor
Philadelphia, PA 19103

Phone: 215-735-2171
San Francisco, CA
Katz Banks Kumin LLP

150 California St., 16th Floor
San Francisco, CA 94111

Phone: 415-813-3260