[Senate Hearing 113-370]
[From the U.S. Government Publishing Office]
S. Hrg. 113-370
WHISTLEBLOWER RETALIATION AT THE HANFORD NUCLEAR SITE
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HEARING
before the
SUBCOMMITTEE ON FINANCIAL AND
CONTRACTING OVERSIGHT
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
MARCH 11, 2014
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEIKAMP, North Dakota
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Keith B. Ashdown, Minority Staff Director
Laura W. Kilbride, Chief Clerk
Lauren Corcoran, Hearing Clerk
SUBCOMMITTEE ON FINANCIAL AND CONTRACTING OVERSIGHT
CLAIRE McCASKILL, Chairman
CARL LEVIN, Michigan RON JOHNSON, Wisconsin
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana MICHAEL B. ENZI, Wyoming
MARK BEGICH, Alaska KELLY AYOTTE, New Hampshire
TAMMY BALDWIN, Wisconsin
Margaret Daum, Majority Staff Director
Rachel Weaver, Minority Staff Director
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator McCaskill............................................ 1
WITNESSES
Tuesday, March 11, 2014
Bill Eckroade, Deputy Chief of Operations, Office of Health,
Safety and Security, U.S. Department of Energy................. 3
Matt Moury, Deputy Assistant Secretary for Safety, Security and
Quality Programs, Environmental Management, U.S. Department of
Energy......................................................... 5
James Taylor, Senior Vice President, Global Management and
Operations Services, URS Corporation........................... 15
Michael Graham, Principal Vice President, Bechtel National, Inc.. 17
Alphabetical List of Witnesses
Eckroade, Bill:
Testimony.................................................... 3
Prepared statement with attachment........................... 31
Graham, Michael:
Testimony.................................................... 17
Prepared statement........................................... 45
Moury, Matt:
Testimony.................................................... 5
Prepared statement........................................... 35
Taylor, James:
Testimony.................................................... 15
Prepared statement........................................... 40
APPENDIX
Information submitted for the Record:
The memorandum submitted by Mr. Eckroade..................... 33
Information submitted by Mr. Moury........................... 49
Statement submitted by Senator Edward J. Markey.............. 50
Statement submitted by Dr. Walter L. Tamosaitis.............. 52
Statement submitted by Tom Carpenter, Executive Director,
Hanford Challenge with attachment.......................... 79
Responses to post-hearing questions for the Record:
Mr. Eckroade................................................. 238
Mr. Taylor................................................... 254
Mr. Graham................................................... 260
WHISTLEBLOWER RETALIATION AT THE HANFORD NUCLEAR SITE
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TUESDAY, MARCH 11, 2014
U.S. Senate,
Subcommittee on Financial and Contracting Oversight
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:12 a.m., in
room 628, Dirksen Senate Office Building, Hon. Claire
McCaskill, Chairman of the Subcommittee, presiding.
Present: Senators McCaskill and Johnson.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. This hearing will now come to order.
The waste treatment plant is a Federal nuclear facility in
Hanford, Washington that is supposed to convert hazardous,
highly radioactive nuclear waste into a more stable and safe
form for permanent disposal.
Last June, I held a hearing on contract management by the
Department of Energy (DOE), which looked specifically at the
waste treatment plant (WTP), at Hanford because the plant,
which is under a design and construction construct in terms of
how the contracts were given, has a litany of cost overruns and
schedule delays.
Today, however, we are here to examine another aspect of
the plant--allegations that the Department of Energy and its
contractors, Bechtel and URS, are engaging in retaliation
against employees who raise concerns about the safety of the
plant's design and construction.
The Department of Energy has a specific nuclear safety
policy that states, ``It is the policy of the Department of
Energy to design, construct, operate and decommission its
nuclear facilities in a manner that ensures adequate protection
of workers, the public and the environment.''
However, Federal agencies that have looked at safety issues
at Hanford have repeatedly found key safety-related weaknesses,
including the lack of quality assurance, safety culture and
Federal oversight.
Most recently, URS Manager for Environmental and Nuclear
Safety Donna Busche has alleged that she was fired because she
raised concerns that basic nuclear safety fundamentals had not
been considered from the beginning of construction.
Another official associated with the waste treatment plant,
the Manager of waste treatment plant Research and Technology,
Dr. Walter, Tomasaitis, who testified before this Subcommittee
in 2011, also claims to have suffered professional damage,
including termination, after raising major nuclear safety
issues.
These individuals and many more who have chosen to remain
anonymous have brought their concerns forward to their
employers, to DOE and to Congress.
I do not think anyone wants to be a whistleblower.
Reporting your colleagues, who may be your friends, for actions
that look like waste, fraud, abuse or a danger to others is not
an easy decision for most people, and life after you have blown
the whistle is not easy either.
But the job that whistleblowers do is tremendously
important and valuable. That is why when courageous men and
women feel compelled to speak out, we do not want to silence
them. We want to give them a process that allows them to report
that information without fear of retaliation.
Before this hearing began, I took the opportunity to hear
from Ms. Busche and Dr. Tomasaitis. I also heard from Mr.
Carpenter, who represents many more whistleblowers through his
work at Hanford Challenge. They describe an atmosphere in which
they and other individuals faced severe retaliation for raising
concerns about Hanford.
Whether Ms. Busche or Dr. Tomasaitis or any of the other
individuals that have come forward to this Subcommittee is
right about the science behind the safety at Hanford is not a
matter on which I or the people in the room at this hearing
will be able to reach a final conclusion about.
But the fact that Ms. Busche and Dr. Tomasaitis were fired,
despite being known to have raised their concerns, has created
the appearance of a chilled atmosphere to safety and the belief
of employees that management suppresses technical dissent. That
demands attention by Congress, and it certainly demands
attention by the people who have oversight over this project.
Today, we will hear from two witnesses from the Department
of Energy, with responsibility for the safety culture at
Hanford. We will also hear from Bechtel, the prime contractor
at the waste treatment plant, and URS, the subcontractor to
Bechtel, who is the employer of both Ms. Busche and Dr.
Tomasaitis.
I thank the witnesses for being here and look forward to
their testimony.
And we will begin with Mr. Eckroade and Mr. Moury. I will
introduce both of you, and you can take your oath.
And the reason I am a little frantic is that we are going
to start votes at 11:30, which is really going to mess this up,
and this is going to prolong the hearing in a way that did not
seem efficient to me.
And, since this is a Subcommittee about efficiency and
effectiveness in government, it is hard for me to accommodate
what seems to me an antiquated notion that members of the
government cannot sit at the same table with contractors. That
flies in the face of the reality that our government is filled
with contractors working side by side, sometimes
indistinguishable from each other in terms of their work
function and what they are doing. The notion that we have to
have two tables to make sure the government people do not have
to intermix with the company people seems to be somebody
holding onto some notion that makes no sense in terms of
today's government and its operation.
But I know you two are not responsible for that decision,
so I will not yell at you. I will save my wrath for the person
who actually made that decision, which will come at a later
time.
Mr. Eckroade is Deputy Chief of Operations, Office of
Health, Safety and Security at the U.S. Department of Energy.
Mr. Eckroade previously served as Principal Deputy Chief for
Mission Support Activities in the Office of Health, Safety and
Security and Director of the Office of Independent Oversight.
Matt Moury is Deputy Assistant Secretary for Safety,
Security and Quality Programs, Environmental Management at the
U.S. Department of Energy, where he executes operational safety
and awareness programs and oversees quality assurance programs.
Mr. Moury previously spent almost 20 years at the Defense
Nuclear Facilities Safety Board, which we referenced earlier,
where he led the Board's efforts to ensure the Department of
Energy's nuclear stockpile and defense nuclear research
operations met health and safety standards.
Thank you both for being here. It is the custom of this
Subcommittee to swear all witnesses, if you would stand.
Do you swear that the testimony that you are about to give
before this Subcommittee will be the truth, the whole truth and
nothing but the truth; so help you, God.
Mr. Eckroade. I do.
Mr. Moury. I do.
Senator McCaskill. Thank you both.
And we will begin with you, Mr. Eckroade.
Am I pronouncing your name correctly, I hope?
Mr. Eckroade. Yes, Madam Chairman, you are.
Senator McCaskill. Thank you.
TESTIMONY OF BILL A. ECKROADE,\1\ DEPUTY CHIEF OF OPERATIONS,
OFFICE OF HEALTH SAFETY AND SECURITY, U.S. DEPARTMENT OF ENERGY
Mr. Eckroade. Madam Chairman, Ranking Member Johnson and
Members of the Subcommittee, thank you for the opportunity to
provide testimony regarding safety culture and related issues
at the Department of Energy's Hanford site, waste treatment and
immobilization plant, or WTP.
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\1\ The prepared statement of Mr. Eckroade appears in the Appendix
on page 31.
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I would like to take a brief moment to describe the unique
role of the Independent Oversight Program within the Office of
Health, Safety and Security, which has conducted safety culture
reviews at Hanford and elsewhere. The mission of this program
is to provide DOE line management, Congress and other
stakeholders with an independent evaluation of the
effectiveness of DOE policy and line management performance in
safety and security. This mission is accomplished by conducting
performance-based assessments designed to verify the
Department's security interests are protected, that the
Department can effectively respond to emergencies and the
Department's operations are conducted in a manner that protects
its employees, the public and the environment.
Our team has completed two safety culture assessments at
WTP, one in 2010 and one in 2012. These assessments included
interviews with employees of the Office of River Protection
(ORP), and the contractor, Bechtel National, Incorporated
(BNI), as well as a detailed review of their safety programs,
processes and procedures. Detailed reports of these assessments
and their recommendations have been provided to the Committee,
and I will summarize their findings briefly.
In the 2010 assessment, we found that most personnel who
were interviewed expressed that their managers encouraged a
questioning attitude and that they were comfortable with
raising safety concerns. However, some individuals believed
that there was a chilled environment that discouraged reporting
of safety concerns, and some BNI employees expressed fear about
retaliation. Our report contained a number of detailed
recommendations for both ORP and BNI. Among those
recommendations were that BNI strengthen procedures for the
resolution of nuclear safety concerns, identify mechanisms to
strengthen the trust among the workforce and better communicate
information to employees.
Two years later, in 2012, we performed a second
comprehensive assessment to measure the State of the safety
culture at the WTP. For this assessment, we engaged external
independent experts with extensive experience in safety culture
reviews to complement the highly experienced nuclear safety
expertise of our staff. That helped us more effectively
diagnose the safety culture and attributes at WTP and learn
things we did not learn in our 2010 assessment. In 2012, we
found that most personnel at WTP believed that safety was a
high priority. However, a significant number of Federal and
contractor staff expressed reluctance to raise safety or
quality concerns. Fear of retaliation was identified in some
BNI groups. Employee willingness to raise safety concerns
without fear of retaliation is an essential element of a
healthy safety culture.
Our conclusion was that significant management attention
was needed to improve safety culture at WTP. We found that,
while managers espoused support for a healthy nuclear safety
culture, they did not have a full appreciation of the current
culture or the nature and level of effort needed to foster a
healthy safety culture.
We are currently conducting a followup assessment of safety
culture at WTP, our third review. That review will be completed
this spring and a written report presented to management. We
look forward to sharing the results of that assessment with the
Committee when it is complete.
A strong safety culture starts with strong, ongoing support
by the most senior leaders of the organization. We want to
assure the Members of the Subcommittee that this is a very high
priority for Secretary Moniz and Deputy Secretary Poneman.
With the permission of the Subcommittee, I would like to
introduce for the record a copy of a September 20, 2013
memorandum signed by both the Secretary and Deputy, titled
``Personnel Commitment to Health and Safety through Leadership,
Employee Engagement and Organizational Learning.''\1\
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\1\ The memorandum referenced by Mr. Eckroade appears in the
Appendix on page 33.
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The memorandum provides a visionary leadership and a deep
personal commitment to building an organization we can all be
proud to work in. A vibrant and healthy organizational culture
will help the Department to achieve its national security,
scientific and environmental missions safely and securely. We
are committed to helping the Department achieve this goal.
I would be glad to answer any questions that the Committee
may have.
Senator McCaskill. Thank you very much. Mr. Moury.
TESTIMONY OF MATT MOURY,\2\ DEPUTY ASSISTANT SECRETARY FOR
SAFETY, SECURITY AND QUALITY PROGRAMS, ENVIRONMENTAL
MANAGEMENT, U.S. DEPARTMENT OF ENERGY
Mr. Moury. Well, good morning. Thank you, Chairman
McCaskill, Ranking Member Johnson and Members of the
Subcommittee.
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\2\ The prepared statement of Mr. Moury appears in the Appendix on
page 35.
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I am here today to discuss the Department of Energy's
efforts to improve workplace safety culture. In the interest of
time, with your permission, I would like to give a brief
summary of my testimony and then submit my full testimony for
the record. Creating and maintaining a robust safety culture,
including a workplace where all employees feel free to raise
concerns, is essential to achieving our mission at the Hanford
site in Washington State and across the DOE complex.
As you mentioned earlier, in terms of my background, I am
an engineer by training, and I have 30 years of experience in
the nuclear field, including almost 20 years at the Defense
Nuclear Facilities Safety Board. I also began my career as a
nuclear trained submarine officer and recently retired with the
Captain in the Navy Reserves.
I spent much of my career working to ensure adequate
protection of the health and safety of the workers and the
public. At DOE, my office executes operational safety and
awareness programs.
At DOE, we believe safety culture is best described as an
organization's values and behaviors that are modeled by its
leaders, internalized by its members and serves to make the
safe performance of work the overriding priority to protect the
workers, public and the environment. Improving safety culture
across the Department remains a top priority.
In September of last year, as Mr. Eckroade mentioned, the
Secretary and Deputy Secretary of Energy reaffirmed their
commitment to health and safety in a memorandum to all
employees. The memo recognized that DOE can advance its
challenging missions only if it provides all employees a safe
and healthy work environment and fosters a culture in which
workers at all levels are empowered to raise problems,
participate in the development of solutions and are engaged
appropriately in decisions that affect their work.
In addition, DOE has taken actions to improve safety
culture at Hanford. Shortly after his confirmation, the
Secretary of Energy traveled to the site to gain a firsthand
understanding of the technical issues at the waste treatment
plant. The Secretary continues to engage DOE senior leadership
and employees to underscore the importance of a robust safety
culture.
In particular, the efforts taken over the last 2 years by
DOE to improve safety culture at Hanford are extensive and
varied.
First, new leadership has been put in place. The new
leadership has the qualifications, experience and safety values
to put the waste treatment plant on a sustainable path.
Second, the Department clarified formal roles and
responsibilities for management in the waste treatment plant
project execution plan, which is the DOE document that
communicates to the contractor project objectives and how they
will be accomplished. The Department also revised the waste
treatment plant contract performance evaluation measurement
plan to better balance the priorities and emphasize quality and
safety culture elements.
Third, DOE implemented a safety culture oversight process
at the waste treatment plant. Senior management meets regularly
with contractor management to formally review the contractor's
progress in executing its safety culture improvement action
plan. Likewise, senior headquarters managers meet with ORP
managers to discuss their progress and the progress of their
contractors.
Fourth, the Department designed training to assist in
reinforcing a positive safety culture and engaged in an
extensive effort to provide this training. Beginning in
December 2011, a team of Federal and contractor subject matter
experts from across the Department began to design, develop and
deliver a course on safety culture and provided that training
to more than 1,800 of our senior Federal and contractor
leaders.
Rules and slogans do not drive culture change. Leaders
drive this change, personally. Leaders must recognize the
message that their actions will convey to their employees. This
course was designed to provide the tools necessary for leaders
to improve our safety culture.
Finally, the Department is working to strengthen the
avenues to address issues raised by contractor and Federal
employees. A comprehensive Issues Management System has been
established at ORP to ensure that new and previously identified
issues are addressed and tracked to closure. The Department has
also strengthened the Hanford Employee Concerns Program, hired
a new Employee Concerns Manager at Hanford and continues to
administer its Differing Professional Opinion process, both of
which provide additional avenues for employees to raise issues.
Madam Chairman, with respect to claims of whistleblower
retaliation by contractors, let me be clear. DOE is strongly
committed to a workplace where all workers, both Federal and
contractor employees, are free to speak out. They are free to
voice concerns or lodge complaints without any fear of
retaliation. Contractors are statutorily and contractually
bound not to retaliate against employees for protected
whistleblower conduct.
While I cannot speak to the specifics of the claims under
review, DOE was not asked to and did not approve Ms. Busche's
recent termination. This termination has raised questions about
the potential of an improper reprisal for having raised health,
safety or other protected concerns.
For this reason, the Department has asked the Office of the
Inspector General (OIG) to review the circumstances surrounding
the termination of Ms. Busche. The Department will take
appropriate action based on the outcomes of any IG
investigation.
In conclusion, while the Department has undertaken a broad
array of activities to improve its safety culture, there still
is work to be done. Safety culture is a continuum, and we
continue to move along this continuum as we strive to improve.
We recognize this is an ongoing process, a journey, not a
destination and one which calls for continuous improvement. A
safety culture built on these principles requires sustained
effort by the Department's leadership and senior managers. The
Department remains fully committed to this effort.
Madam Chairman, this completes my comments. I would be
happy to answer your questions at this time.
Senator McCaskill. Thank you both very much for being here.
We appreciate it very much.
I, very rudely, blew right past my colleague's and
friend's, Senator Johnson's, opening statement. So I am going
to defer my questions and allow him to go first in the spirit
of bipartisan cooperation that we try to work on in this
Committee.
Senator Johnson. Nothing rude about it. I took no offense.
I know we are trying to hustle through this. So I appreciate
you letting me ask some questions.
Mr. Eckroade and Mr. Moury, both of you are talking about
studies and processes and all kinds of, no offense,
bureaucratic gobbledygook.
What I want to get to is I want to find out what control is
in place right now. You are the customer. You should be in
control of this process.
What should someone like Ms. Busche do? What course of
action should she be taking, and what kind of protections are
available to her in the Department of Energy, currently, Mr.
Moury?
Mr. Moury. Well, she should be--as I mentioned earlier, the
Department is fully committed to her being able to raise any
issue that----
Senator Johnson. What was the first step she should have
taken?
Is there somebody in the Department of Energy, somebody at
the site, where somebody like Ms. Busche could go to and then
really be able to speak very freely and kind of establish, hey,
listen, I am a whistleblower; I need some protection?
Mr. Moury. Well, I mean there is certainly a series of
steps she can go through to elevate her concerns, first,
starting with her line organization, the people that she works
for.
If she does not achieve satisfaction through them, I mean,
clearly, the best position we would be in is if the Department
took those issues and a contractor took those issues, tracked
them, worked them to closure and communicated the closure of
those issues.
Senator Johnson. OK, but that did not happen.
So, if you are in a position as a whistleblower----
Mr. Moury. So, if that did not happen----
Senator Johnson [continuing]. You end up having to go to
the customer, the government. What system is in place right now
to address that type of situation?
Mr. Moury. Well, there are a number of different programs
that are available that----
Senator Johnson. Well, there is a problem right there--a
number of different programs.
I mean, is there one specific approach that she should have
taken?
Is there somebody in the Department of Energy overseeing
that contract that she could have gone to, that everybody from
the contractor base knows that if I have a serious safety
concern I go to this office right there to get this thing taken
care of?
Mr. Moury. Well, the next step would be to go the Employee
Concerns Program that is out at the waste treatment plant that
is run by the Richland office. It is a combined Employee
Concerns Program. We have expended an incredible amount of time
upgrading that program, as I mentioned earlier in my statement.
So that would be the next step.
How she pursues her issues is really up to her. It is up to
the individual. She can then take it to the headquarters and go
through the Department of Energy's program, or she can go
directly to the Department of Labor (DOL), if she feels the
need to raise her issues through those programs.
Senator Johnson. Do you know if she availed herself of any
of those programs?
Mr. Moury. I am not aware of her availing herself of the
Hanford Employee Concerns Program. I do know that she has used
the Department of Labor's program. But other than that, I would
have to get back to you with more details.
Mr. Moury. OK. Mr. Eckroade, can you add anything to that?
Mr. Eckroade. Ms. Busche, in the last couple of years, has
used the DOE headquarters Employee Concerns Program a number of
times. I am familiar with a couple of different employee
concerns that she has sent forward. Most dealt with her
concerns with actions of her managers that appear to be
retaliatory in nature.
She did use the mechanisms that were available to her to
share her concerns, and I was aware of some of those, as well
as other managers in the Department of Energy.
Senator Johnson. Now was she in a unique position in terms
of safety within the site, where her management, those
contractors, had to consult with the Department of Energy, the
customer, prior to her dismissal?
Mr. Moury. The Department was not consulted nor did we
approve the termination of Ms. Busche.
Senator Johnson. But was she in a position where according
to the contract, according to the rules, that she was supposed
to--that the Department of Energy should have been notified
prior to her dismissal?
Mr. Moury. I am not an attorney. As I mentioned before, I
am an engineer, not a contracting officer. I am not aware of
the specifics of what was required prior to URS terminating Ms.
Busche.
Senator Johnson. Well, that would be a pretty significant
control, I would think, from the customer on their contractor--
that if you have key safety positions, that prior to anybody--
if one of those safety officers is raising an issue, prior to
any termination or any type of action being dealt with that
employee, the Department of Energy would have to be consulted
and would have to be brought into that process.
I mean, does that control exist?
Mr. Moury. I am not familiar with that specific element of
the contractor. What I would like to do with your permission is
to take that question for the record and provide you with an
answer at a later date.
Senator Johnson. OK. Mr. Eckroade, do you have--are you
aware of a particular control in place through the Department
of Energy, governing these contracts, of employees of the
contractor having a heightened status and because safety is
such a huge issue, that the contractor must consult with the
customer, the Department of Energy, prior to taking any
employer action against an employee?
Mr. Eckroade. Just like my colleague, Mr. Moury, I am not a
lawyer as well, and I am not familiar with any departmental
policy that would govern the provision that you just mentioned.
Senator Johnson. OK. Can you point--because, again, we have
talked about all these studies. You were going to say,
specifically, this is what we have done. I just did not hear
any specifics.
I heard, like I say, studies, processes, formal review
systems.
I mean, specifically, what kind of controls are in place to
afford whistleblower protection, to ensure that people who have
legitimate safety concerns, where those concerns are adequately
aired and addressed?
Mr. Eckroade. I will just talk about my office.
The one thing that the Department has done is become aware
of the importance of a healthy safety culture in its
organizations. A few years ago, had the awakening when Mr.
Tomasaitis raised his issues and he was removed from his
position and the Defense Board raised concerns, and that was
the beginning of our and my office's first review of safety
culture.
We have learned about safety culture and how to assess it,
but the Department growing its competencies in this area as we
understand the results of safety culture reviews. We brought in
external experts from the Nuclear Regulatory Commission (NRC),
who are helping us understand this very different aspect of
safety, including things such as behavioral sciences that
really help inform us about how we have to interface and
communicate with our employees much better.
Although the Department has not reached maturity in 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.
Senator Johnson. The Department has been around how many
years? The Department of Energy--when was it created?
Mr. Eckroade. If you go back to the Manhattan Project, a
long time.
Senator Johnson. And it has been overseeing these nuclear
waste sites for how many years?
Mr. Eckroade. Over 50 years.
Senator Johnson. And so now you are saying that the Office
of Health Safety and Security, 2 years ago, was just really
kind of coming into understanding and dealing with safety and
security issues.
Mr. Eckroade. Right. The whole Department has really had an
awakening since the 2010 timeframe. We did not stick our heads
in the sand. We ventured out to try to learn about this. And we
are learning, and we are growing, but we are not mature.
Senator Johnson. I appreciate that you had an awakening 2
years ago, but what is shocking, literally--I have been in
business, and trust me, frequently, because of governmental
actions, things like the Occupational Safety and Health
Administration (OSHA), businesses have been concerned about
safety and security for decades. It has been a top priority
within the private sector.
It is a little mind-boggling and a little jaw-dropping that
within the Department of Energy, overseeing an incredibly
complex--I will give you that--very difficult issue.
I would not have to grapple with this. It has really been
the last couple of years that we are kind of pulling our heads
out of the sand and going, boy, we really ought to take a look
at the safety and security concerns.
I mean, I am just saying--just a commentary on that.
Mr. Eckroade. Just one comment, if I could, sir. The Energy
Department has a very strong technical safety program. We have
our own internal regulations that drive a lot of very good
aspects of the occupational safety and health of our employees,
and we had that awakening about 20 years ago.
The issue of safety culture is very different. It is a new
kind of study of safety.
Senator Johnson. And what I am saying is 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 and people that work with you know exactly what they
need to do to raise safety concerns so they can be addressed
very quickly. That is what has to happen.
But thank you, Madam Chairman.
Senator McCaskill. Thank you.
Assuming there are 10 minutes left on the vote, I am going
to go ahead and go.
Senator Johnson. Do you want me quick do it and come back?
Senator McCaskill. That would be great.
Senator Johnson. OK.
Senator McCaskill. She was a key personnel. She is still
listed on the contract as key personnel--Ms. Busche. And, as
key personnel, she could not be fired without DOE approval.
We know that happened. We know she was fired without DOE
approval. What is the recourse DOE has against the contractor
for doing that?
Mr. Moury. Well, Bechtel provided to the Department a
letter that said they were going to be changing the key
personnel list, adding two and removing one. However, having
said that, at no time was the Department asked or approved the
dismissal of Ms. Busche.
And, as I mentioned before, her dismissal did raise some
concerns about reprisal for the fact that she had been raising
issues. So that is why the Department has taken the step to
engage the IG to take a look at the circumstances surrounding
her removal, and if, in fact, reprisal is found to exist, then
the Department will take action.
Senator McCaskill. And what would that be?
Mr. Moury. I do not know exactly what those actions would
be. They would be dependent on the results of the review. I can
get back to you with the very specifics about the actions or
the steps that they could take.
Senator McCaskill. Does it surprise you that they, 2 weeks
after the Secretary, who I am a big fan of, Secretary Moniz--2
weeks after he signed the memorandum about safety and a culture
of safety, that they would choose that time to get rid of Dr.
Tomasaitis and then just a few months later fire Ms. Busche?
Do those seem to be the actions of a contractor that is
concerned about a culture that welcomes whistleblowers?
Mr. Moury. I do not know the specifics of Ms. Busche's
termination. I believe you will have to ask the next panel to
get into some of the specifics of why she was fired.
Senator McCaskill. I am sure that we will not get into the
specifics because I am sure that they will say it is in
litigation.
Mr. Moury. We have certainly made it very clear to our
contractors that reprisal against whistleblowers or people
raising issues is totally unacceptable. We have different
processes available to us if we do find that retaliation has
occurred.
Senator McCaskill. That is what I am going to really watch
carefully----
Mr. Moury. That also includes award fees.
Senator McCaskill [continuing]. Because you did the report
in 2012. Now you are doing another one. You have called the IG.
Meanwhile, the money keeps flowing, costs keep escalating,
performance bonuses keep being given.
At some point in time, the customer here needs to do
something other than ask for another report because, clearly,
it does not 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. There are no two people at that plant that had a
larger profile for having the courage to stand up on technical
safety issues than those two people.
Would you disagree with that statement, either one of you?
Mr. Moury. No.
Senator McCaskill. After the Secretary of Energy, the most
powerful person in the country in regards to their contract,
signs a written memorandum basically saying, we cannot have
this kind of culture, they say, you know what, we are going to
get rid of the two biggest, highest profile whistleblowers in
the whole Hanford treatment facility.
And then let me ask you about the next piece of this.
Have you all discussed--and this may be for someone other
than the two of you, but--this notion that contractors can
litigate on our dime?
Do you know how much we have forwarded them for legal costs
at this point surrounding the dismissal of these two people?
Mr. Moury. I do not have that information with me. We can
provide that information to you at another time.
Senator McCaskill. The notion that they defend themselves
without telling you they were firing her, they sent in
something that they are going to try to argue, I am sure, means
they were getting rid of her, but they did not tell you that.
They just said they were changing key personnel.
These cases go on for years, millions of dollars in legal
costs, and at the end of that, if they settle the case without
admitting any wrongdoing, then the taxpayer stays on the hook,
correct?
Mr. Moury. I am sorry, Madam Chairman. Would you repeat
that last piece?
Senator McCaskill. At the end of a lengthy litigation----
Mr. Moury. Correct.
Senator McCaskill [continuing]. With expensive lawyers
being paid by the government, if they settle at the end of this
lengthy--or if they wear down the other side because the other
side does not have the resources the U.S. Government has--you
can imagine if you are an individual trying to sue a company
that is being bankrolled by the U.S. Government.
I mean, talk about hard.
So there is a concept in litigation called wearing them
down. Papering them to death. Overwhelming them with the
resources of one side versus the other side.
So let's assume just a hypothetical case, not these
individuals and a hypothetical case. They wear someone down 5,
6, 7 years. Finally, the person on the other side is out of
money. Their lives have been on hold. Their careers have been
on hold. And many times, they settle because they cannot go on
anymore.
And, if they settle and the defendant does not have to
admit any kind of wrongdoing, then we stay on the hook. We end
up having to cover all of those costs.
Should there be something that would incentivize litigants
that we are funding, that if it goes past a certain time or a
certain amount of money spent, that they have to have skin in
the game in this legal fight?
Mr. Moury. Well, I would say, Madam Chairman, that the
costs to the contractor is not a done deal. It is up to the
contracting officer to determine whether the legal costs are
appropriate in the event that a case is settled. Whether they
will be fully allowable or partially allowable is up to the
contracting officer.
Senator McCaskill. Well, that is good to know because I
will have some questions for the contracting officer on this
case.
What if we had a rule that if you did not inform DOE, your
customer, that you were firing key personnel that you had to
absorb all the legal costs of litigation surrounding that
firing yourself and not ask the government for reimbursement?
Mr. Moury. I mean, that is an interesting concept. I would
like to spend some more time thinking about it, and maybe we
can provide you with some additional details.
Senator McCaskill. There just seems to be something wrong
with this.
Mr. Moury. Our system is also based on the presumption that
our contractors are not liable based on an assertion by the
contractor's employees.
Senator McCaskill. Of course not, and nor would I want
there to be an assumption.
I just know that in terms of resourcing litigation this is
not an even playing field, and the way it is set up does not
incentivize a quick resolution of the dispute. It incentivizes
lengthy litigation as opposed to a quick resolution.
And it seems to me that we could work on doing something in
that regard that might level the playing field slightly----
Mr. Moury. Yes.
Senator McCaskill [continuing]. So that everyone had an
opportunity to actually have their case adjudicated by an
impartial jury.
Mr. Moury. Right. Ma'am, I understand----
Senator McCaskill. The vast majority of these never get
there.
Mr. Moury. Thank you, Madam Chairman.
I understand your frustration, especially with the length
of time that some of these issues take to be resolved.
We do follow the processes that were set up by Congress,
and we are always looking for ways to improve the Department's
processes, and the whistleblower is one that we are also
looking at also.
Senator McCaskill. We have discussed earlier today the
Defense Nuclear Facilities Safety Board. I did not realize at
the time that you had given so many years of service there and
to your country in the military.
You are the perfect witness to ask this question of. Why
couldn't we give DNFSB some kind of jurisdiction as a third
party oversight on a facility like Hanford?
Mr. Moury. This is a little bit outside of what we were
going to talk about today.
I would say that the Board, in all my tenure there--I have
been gone for a number of years. But it was really focused on
the role of the Board to help the Department complete their
mission, and in that context, their evaluations are based on
the Department's requirements and evaluating the implementation
of those specific requirements.
So to give them a separate, independent role--I think it
removes what the purpose of the Board was put in place for when
they were first established back in 1988.
Senator McCaskill. At the end of the day, this controversy
boils down to technical concerns, highly technical concerns, by
two professionals in the field that had been given positions of
great trust by your contractors.
Do you feel comfortable, Mr. Moury, that their technical
concerns have received the airing that they should? And, as
somebody with your background, you know that they are not alone
in the field with some of the technical concerns that they
expressed.
Mr. Moury. Well, we have asked the contractor to put a
consolidated list of all the issues that both Dr. Tomasaitis
and Ms. Busche have voiced. I am well aware of many of those
issues, and many of those issues were raised by other people
and are being pursued.
Once we have that list, we will evaluate them based on the
technical merit of the issues that they have raised and make a
determination at that time. But those issues are being worked.
I mean, many of these issues--since this is a one-of-a-kind
facility, it is incredibly complex. The technical issues are
very complex, and they take a long time to resolve.
So sometimes our failure is in the fact that it takes us--
we have not in the past done a good job of getting the word
back to the people that are raising these issues on where
exactly in the process resolution of their issues stands, and
that is one of the key things that we have been working on.
And I think it is important to preventing this chilled work
environment, to make sure that people understand where those
issues are being addressed and that they are not being ignored.
Senator McCaskill. Either of you, are you familiar with the
people that have been tasked with their responsibilities now at
Hanford?
Mr. Eckroade. Could you be a little more specific?
Senator McCaskill. The two jobs that they were removed
from, two very important jobs, one in the technical capability
and one in the safety EM capability. They were both high-level
people at that facility. Who has replaced them; do you know?
Mr. Eckroade. I am not aware.
Mr. Moury. I do not know the answer.
Senator McCaskill. Have you heard anything from either of
those people about any of the same concerns?
Mr. Moury. The people that replaced them?
Senator McCaskill. Correct.
Mr. Moury. I have not heard anything. I am not sure who is
replacing those two individuals.
Senator McCaskill. OK. Would it be a smart thing for the
Department of Energy to go to their replacements and go through
that list of concerns and see if they have the same ones, to
take the impetus yourselves to ask those questions?
Mr. Moury. Well, I think it would be appropriate certainly
to work with them and go through this list of issues and to
determine the validity of those technical issues. I think that
is fully appropriate.
Senator McCaskill. If you did that, if you took the impetus
to do that, that would remove the necessity of them being
branded as whistleblowers, and it would also give credibility
to the concerns that were raised in the first place--that you
were asking about those same concerns.
In other words, you cannot just replace these two people
and have the concerns go away.
Mr. Moury. That is correct.
In the real world, I mean, I understand the benefit that
whistleblowers have provided to our country on a number of
different areas.
If we were in an ideal world, we would have very few
whistleblowers because when their issues are raised initially
at those lower levels we would address them; we would track
them to closure; we would keep them informed of how we were
progressing.
And that whole process is something that we have been
expending a lot of time trying to strengthen.
Senator McCaskill. I appreciate very much.
I have to go vote. If you have more questions, great. If
not, this is the introduction for the two witnesses that will--
--
Senator Johnson. You want to hear the testimony, right?
Senator McCaskill. No, you can go ahead. I have read it.
Senator Johnson [Presiding.] Well, thank you. I will, I
guess, dismiss you two.
Senator McCaskill. If you would not mind staying, in case
we have questions after the other two witnesses testify, we
would really appreciate it.
Mr. Eckroade. Certainly.
Mr. Moury. Yes, ma'am.
Senator Johnson. OK. So I will ask the other witnesses to
come forward then.
Again, thank you for being willing to appear before our
Subcommittee.
Our first witness is James Taylor. He is Senior Vice
President, Global Management and Operations Services at URS
Corporation, where he oversees strategic initiatives, business
development activities and administrative and operations
support functions. Mr. Taylor leads the business unit
responsible for URS's work at the waste treatment plant at
Hanford. Mr. Taylor has 26 years of experience in the nuclear
industry, including as Director of the Savannah River National
Lab.
So, Mr. Taylor, welcome.
And our second witness is Michael Graham. He is the
Principal Vice President at Bechtel National, Inc. Mr. Graham
has worked at four major Department of Energy sites across the
country and previously led a project to evaluate the impacts of
Hanford waste on groundwater in the Columbia River.
So, again, it is the tradition of this Subcommittee to ask
people to swear in, so if you would stand.
Do you swear to tell the truth, the whole truth and nothing
but the truth?
Mr. Taylor. I do.
Mr. Graham. I do.
Senator Johnson. Mr. Taylor, why don't you start your
testimony?
TESTIMONY OF JAMES N. TAYLOR,\1\ SENIOR VICE PRESIDENT, GLOBAL
MANAGEMENT AND OPERATIONS SERVICES, URS CORPORATION
Mr. Taylor. Good morning, Ranking Member Johnson and
Members of the Subcommittee. Thank you for the opportunity to
appear before you today.
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\1\ The prepared statement of Mr. Taylor appears in the Appendix on
page 40.
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My name is James Taylor. I am the General Manager
responsible for the environmental cleanup work under URS's
Energy and Construction Division, the role I assumed in January
of this year. I am grateful to lead a team of nearly 20,000
dedicated professionals working at 18 major cleanup projects in
the United States and abroad. My business unit is responsible
for our work on the waste treatment plant at the Department of
Energy's Hanford nuclear site in Richland, Washington. I would
like to provide you a brief introduction to the work we do at
the waste treatment plant and discuss our companywide
commitment to safety. I also want to be very clear. URS has
zero tolerance for retaliation against whistleblowers. This is
firmly embedded in our company's culture and goes hand in hand
with our dedication to safety.
As you are aware, projects at the Hanford site are intended
to address once-in-a-lifetime environmental challenges, and we
will eventually build a one-of-a-kind facility. There are
currently more than 56 million gallons of nuclear waste stored
in underground tanks at the Hanford site. The waste is a
byproduct of nine nuclear reactors that operated at Hanford
from World War II through the Cold War. Some of these tanks
were constructed as early as the 1940s, and many are well
beyond their design life.
When operational, the waste treatment plant will be the
first chemical waste processing facility in the world with the
capacity to separate and stabilize nuclear waste. Our role at
the waste treatment plant is to work with Bechtel, DOE's prime
contractor at the site, to design, construct and startup this
treatment facility. We work under the direction of DOE and
Bechtel. DOE is charged with managing the Hanford site and has
the ultimate authority over the project from design to
completion.
It is imperative that we continue to develop and implement
the technology needed to process this waste and complete the
waste treatment plant as soon as safely possible.
Understanding the unique safety and environmental demands
of this project, we listen very seriously to feedback from
congressional leaders, experts in the field, our employees, and
members of the public, and we are always open to new ideas.
I know how important it is to get this right from a
national perspective but also from a local perspective.
Hundreds of our employees live and work in this community, and
no one is more committed than we are to the success of the
waste treatment plant.
We are proud of the safety record that we have built over
many years at many facilities in the United States and abroad.
We know we need to remain ever-vigilant to protect and extend
that record, which is why our corporation, our corporate
culture, makes safety our highest priority.
URS encourages its employees to raise safety concerns, and
we are methodical in addressing the concerns they identify. We
work closely with our employees to promote an open atmosphere
because the complex issues we tackle demand a questioning
attitude and creative solutions. Critical feedback and dissent
are vital parts of our process, which is one of the reasons we
encourage employees to raise concerns and challenge the status
quo. We address all identified concerns and value these
important contributions to our safety culture. We also continue
to improve the safety culture at the waste treatment plant
through internal and external reviews.
Ms. Busche joined the waste treatment plant project in
March 2009. On February 18, 2014, Ms. Busche's employment was
terminated for cause due to her conduct and behavior. Ms.
Busche was not retaliated against because she raised safety
concerns. Given the privacy interests at stake and the pending
litigation relating to Ms. Busche's employment, I am limited in
what I am able to say about this matter. I can say with
confidence, however, that URS counts on our employees working
at the front lines to remain vigilant about safety. For this
reason, we have effective policies and procedures in place to
encourage employees to raise safety concerns and a zero
tolerance policy against retaliation to protect them when they
do.
I am proud of the work we at URS do to address some of our
country's most difficult environmental challenges. We will
continue to work with DOE and others to ensure the waste
treatment plant is designed and constructed safely with the
best available technology.
Thank you for the opportunity to participate in this
hearing, and I am happy to answer your questions.
Senator Johnson. Thank you, Mr. Taylor. Mr. Graham.
TESTIMONY OF MICHAEL GRAHAM,\1\ PRINCIPAL VICE PRESIDENT,
BECHTEL NATIONAL, INC.
Mr. Graham. Senator Johnson, I am Michael Graham, Principal
Vice President of Bechtel National, Incorporated.
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\1\ The prepared statement of Mr. Graham appears in the Appendix on
page 45.
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Bechtel designed and engineered the defense waste
processing facility at the Savannah River site in South
Carolina. It is the only plant in the Nation that currently
converts liquid high-level nuclear waste into solid glass, a
process known as vitrification. This is the same process that
will be used at WTP.
The waste treatment plant at Hanford is being designed and
built to meet a U.S. Government commitment to the State of
Washington to immobilize the highly radioactive waste stored in
177 aging underground tanks. These legacy tanks of World War II
and the Cold War date back to the 40s, and 67 of these tanks
have been reported to have leaked over a million gallons of
radioactive waste. The plant will take the radioactive tank
waste, mix it into glass and package it into robust containers
for permanent disposal.
This mission to safely dispose of the radioactive waste
that has been accumulated over generations is a challenge that
has been handed to our generation by our parents and our
grandparents. It is, and will continue to be, difficult, costly
and time-consuming venture. We owe it to our children and our
grandchildren to undertake this task and to bring it to
successful conclusion.
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 toward technical and safety issues. Raising and
resolving technical issues is an integral part of our
fundamental work process. All personnel are expected to fully
and collaboratively participate in the identification and
resolution of issues and concerns.
In most instances, differences in professional opinions are
resolved as a routine part of interactions between colleagues
and management, but if these interactions do not effectively
address a question, there are multiple avenues for project
personnel to raise issues and concerns.
The first is the Project Issues Evaluation Report (PIER)
process. It is a tool for managing WTP's technical issues and
opportunities for improvement. Issues raised in the PIER
process are fully transparent to the Department of Energy. This
readily available process provides a mechanism for the
resolution of any and all issues, be they raised by a project
personnel or an external reviewer.
The next level is the Employee Concerns Program (ECP), and
it provides all personnel at WTP with an independent avenue for
reporting and resolving concerns.
And yet another level is the Differing Professional
Opinions (DPO) process. This process is a formal mechanism for
WTP personnel to resolve questions and concerns about the
adequacy of the technical design or if there is a legitimate
disagreement regarding the appropriate technical path. The DPO
process provides a formal review of the disputed issues by a
technically qualified and independent panel with oversight by a
DPO review board.
So, collectively, these represent a robust, best-in-class
process for identifying and tracking and resolving issues and
concerns.
I can assure you the WTP project will not be completed
until all open technical questions have been resolved to the
satisfaction of our team and the Department of Energy. The
facility will then undergo a rigorous multiyear operational
readiness review process. Operational testing will use
surrogate materials to demonstrate that the plant will safely
operate as designed and will be performed before any hot
nuclear operations can begin.
This process took many years to complete when DWPF, the
plant in South Carolina, was started up in the 90s.
Finally, you have asked what role our company had in Ms.
Busche's dismissal. Ms. Busche was an employee of URS, and URS
alone made the decision related to the termination of Ms.
Busche. It is my understanding that we were informed by URS
that they were considering terminating Ms. Busche's employment
for cause. I also understand that we were informed by URS that
they intended to proceed with termination, and we received a
letter from URS, formally notifying us of Ms. Busche's
departure, which we then forwarded to the Department of Energy.
We at Bechtel are extremely proud of our work at Hanford.
It is an honor to serve as the government's lead contractor for
this vitally important project. We welcome thoughtful criticism
as a foundational component for our commitment to continuing
improvement.
It is important to note that there are many enormous
successes at the WTP project, and we are committed to reaching
that day when the plant is operating and safely processing
nuclear waste to protect the Columbia River and the people of
the Pacific Northwest.
Thank you.
Senator Johnson. Thank you both for your testimony.
Let me just first ask, were either of you in the room when
we were talking with Ms. Busche?
Mr. Taylor. Yes, sir.
Senator Johnson. Anything from that discussion that you
want to respond to, Mr. Taylor?
Mr. Taylor. Yes, I only heard the very end of her
testimony. I do not have any comments from that.
Senator Johnson. Mr. Graham.
Mr. Graham. Was your question, was I here at the earlier
session roundtable?
Senator Johnson. Correct.
Mr. Graham. I was not, sir.
Senator Johnson. Oh, OK.
There was, let's say, a description of--I would call it--
regulatory capture or basically that the contractors themselves
so overwhelm the Department of Energy, in terms of design and
safety concerns, that it almost renders the Department of
Energy moot in terms of their safety concerns. Would you agree
with that assessment?
Mr. Graham. I would not. I think there is adequate
oversight by the Department of Energy. I have worked at a
number of the sites and in partnership with DOE to work on
these very difficult problems.
Senator Johnson. Mr. Taylor.
Mr. Taylor. I agree. I think there is adequate oversight by
DOE. We certainly focus on our oversight of our projects.
Senator Johnson. Mr. Graham, it sounded like you were
informed by URS that Ms. Busche was going to be terminated and
then you reported that to the Department of Energy. Is that
correct?
Mr. Graham. That is my understanding, yes.
Senator Johnson. Is that your duty under your contract?
Because I was asking the folks from the Department of
Energy and they did not seem to be aware of any kind of
contractual or legal obligation of let's say a protected bunch
of employees for a contract, dealing with safety, to notify the
Department of Energy.
Is it your understanding that there is that contractual
obligation or legal obligation?
Mr. Graham. It is my understanding that there is not a
contractual obligation for us to get DOE's approval if we are
dismissing an employee for cause.
Senator Johnson. Regardless of what position that employee
may be in?
Mr. Graham. Yes, sir.
Senator Johnson. OK. Well, that creates a problem for a
whistleblower if it is a safety issue because a company could
always then not notify and take the position that you are
obviously taking in this case, that the termination was for
cause. Is that a little bit of a problem in the control process
there?
Mr. Graham. I think this is a very interesting situation.
And, again, this was a URS employee, and URS took the
action. We were informed.
Senator Johnson. Let me state, as I did in that earlier
meeting, I do not think this is the place to adjudicate an
employer-employee dispute. To a certain extent, that is part of
this issue, but you also have the very legitimate concerns of
whistleblower protection and raising safety issues that, I
mean, I would like to think that everybody working on this
project is highly concerned about.
So let's go into the types of controls that should be in
place.
Mr. Graham, you talked about a number of steps that
somebody who has a safety issue or concern can go through. At
what point in those areas--because it sounded like there was
the PIER and then you had the Employee Concern avenue appeal to
an independent body. I mean, what independent body?
Mr. Graham. So, if there is an issue that raises to a
differing professional opinion, then resources outside the
project with known expertise in these areas are brought in to
help resolve the issue.
Senator Johnson. But who pays for those resources?
Mr. Graham. My understanding is that is paid for by the
project as an allowable cost.
Senator Johnson. So, really, it would be the contractor
employing or contracting with the subcontractor to provide that
expertise.
Mr. Graham. Right.
Senator Johnson. There would probably be some issues of
independence there, wouldn't you agree?
Mr. Graham. Well, I think all of our processes are very
transparent.
And so, just as we have done in the commercial nuclear
industry, that first tier of the opportunity for people to
raise concerns is a very low-threshold, high-volume process.
And so it has in there issues like they do not like somebody
smoking at the work site to, other concerns about safety or
other things. And those are all tracked to closure, and all
those will be reviewed before the plant enters into any kind of
a startup phase.
Senator Johnson. Reviewed by whom?
Mr. Graham. So it is reviewed by the Department of Energy--
--
Senator Johnson. OK.
Mr. Graham [continuing]. And by our management team.
Senator Johnson. So somebody who has a real safety concern
and goes through these processes can be assured that the
Department of Energy is going to be well aware of somebody
raising an issue.
Mr. Graham. Absolutely.
Senator Johnson. I was certainly concerned about just
differing professional opinions, and we talked about the
Fukushima site where apparently the experts back in the design
phase said we should have built higher tsunami walls to protect
the diesel generators, the cooling generators.
I have spoken with some nuclear experts in the past, that
that instance has resulted in really a different design idea,
that what we ought to do is just put a big ole tank of water
over the reactor so it can be filled with any power source. To
me, that makes a lot of sense.
Now there is a difference of expert opinion prior to,
basically, a continuous improvement process where you actually
have an instance that says, well that would not have worked
either; this works better.
Describe the resolution in differing professional expert
opinions which can be pretty strongly held? How do you resolve
those things?
Who in the end is the arbiter? Who makes the decision on
what could be some very strongly held differences of expert
opinion?
Mr. Graham. Well, I think, at the end of the day, we are
the project manager, and we would take our recommendations
forward to the Department of Energy, and we would gather input
from the best and brightest.
As we talked about, this is an incredibly complex plant.
And so I think just to put it into perspective, the footprint
of WTP is over 60 acres, and the Pentagon sits on about 41
acres. So it is huge.
Senator Johnson. But in the end, it would be the Department
of Energy. If you have a pretty close call, a technical issue--
--
Mr. Graham. Right.
Senator Johnson [continuing]. If there is a difference
opinion and a decision has to be made, is that the contractor
that makes the decision on that, or is it the Department of
Energy that in the end is the customer and makes the final
call?
Mr. Graham. It would be our recommendation with DOE's
approval.
Senator Johnson. So you would make a recommendation, but
DOE in the end has control of the process. They will decide
between the alternatives based on the information you are
providing them.
Mr. Graham. And with a lot of input from the external
Defense Board and others.
Senator Johnson. Again, I understand the constraint here,
which is the reason this is not a very good place to adjudicate
the employer-employee issue here. But, within that constraint,
can you describe to me; what is the area of disagreement
between the two whistleblowers that we talked to earlier and
Bechtel or URS and the Department of Energy in terms of the
safety issues? Can you at least describe that?
Mr. Graham. I am obviously not steeped in all the details
of that plant and these issues, but I can give you a landscape
picture.
The issues, as I understand it, that have been raised by
these individuals are, as was stated earlier, issues that other
people have also raised. I can assure you that each of these
issues is being formally tracked and will be tracked to closure
in those systems that I described.
Senator Johnson. Mr. Taylor, do you have anything to add
there? Can you get a little more specific in terms of what is
the issue at hand?
I mean, we heard some pretty scary things about hydrogen
explosions and some relatively scary issues being raised here.
Mr. Taylor. Senator, I, unfortunately, cannot get into more
detail. I just took over the position as General Manager
approximately 8 weeks ago.
I have asked my Executive Vice President to go investigate
the concerns that were raised, the nuclear safety concerns at
the site. He has investigated those. What I am told is that all
of the issues that have been raised are being tracked and
corrective actions put in place and that it is a work in
progress.
Senator Johnson. And when you say tracked, this is going to
be going through a process that is very transparent, and the
Department of Energy is well aware of these things, correct or
incorrect?
I mean, is this just being tracked internally within the
contractor and subcontractor base, or is the Department of
Energy fully engaged, fully looking over your shoulders in
terms of what issues are being discussed, what concerns are
being raised?
Mr. Taylor. I have not been engaged at that level of detail
to know the details of the list, but I have been told that they
are being tracked.
Senator Johnson. But, again, when you say tracked, that
means full transparency and the Department of Energy being
involved in these.
Mr. Taylor. That is correct. That is my understanding.
Senator Johnson. Mr. Graham, do you have anything to add to
that?
Mr. Graham. No, that is correct.
Senator Johnson. Mr. Graham, you were talking about--I
think it was you.
No, actually, Mr. Taylor, you were also Director of the
Savannah River National Lab.
One of the questions I had during the earlier session was,
is there--it sounds like those cleanup sites are progressing.
The plants have been constructed. We are actually solving the
problem there.
Is there something dramatically different at the Hanford
site versus other sites that are currently operating?
Mr. Graham. I can provide a little background on that. The
Hanford site used five different processes to separate the
plutonium through the years. The Savannah River site had one.
And so the complexity of the 56 million gallons of waste that
is sitting in these failing tanks is much more complicated than
it is at Savannah River.
And so even though the fundamental aspect of making glass
is well understood and is operating well within Savannah River,
these different processes in the early days of the Manhattan
Project makes this a much more challenging project.
Senator Johnson. Would either of you be willing to, or care
to, comment on your own evaluation in terms of the expertise
that resides within the government agencies that are involved
with you?
Does the government have enough resources?
Do they have manpower?
Do they have the requisite skills of the people in the
position to, with transparency, with tracking process, really
understand what the issues and be in the position that when you
make a recommendation on different ideas in terms of how to
handle these problems, that in the end the Department of Energy
is well enough versed and has the expertise to make the
intelligent decision there?
I realize that might be kind of a difficult question to
ask, but----
Mr. Graham. No, actually, I think absolutely.
I personally know Kevin Smith who is the head of DOE's
operation at Hanford for the Office of River Protection. I had
the honor of working with him when I was at Los Alamos,
managing the cleanup of that site.
I have had a lot of experience with the Department of
Energy Environmental Management over the years, and they have a
depth and breadth of expertise that I know that the Japanese,
when they had their issues with Fukushima, turned to the
Department of Energy here for support.
Senator Johnson. Mr. Taylor.
Mr. Taylor. I think the Department of Energy has
significant resources, No. 1. They are well trained and
qualified.
Many of the DOE folks have worked in the commercial world.
So they have worked for contractors like Bechtel and URS.
So I would agree that they have the expertise to work with
the contractors and provide good oversight.
Senator Johnson. Again, you are probably not the best
people to ask this question. But, can you think of anything in
the Department of Energy or any of the government agencies
overseeing your work, any controls that are in place that
simply do not work or that are just burdensome, that could be
replaced by better controls that would provide better
transparency and certainly address and protect whistleblowers?
Mr. Graham. I do not have anything that comes to mind at
this point.
Senator Johnson. One of my concerns is the disparity of
just who pays legal fees. As it was described in the earlier
meeting, the legal fees to mount a defense for the contractors
is really reimbursed by the government. The whistleblowers
themselves, apparently--I would imagine it is because they were
terminated with cause--have no one in terms of paying for legal
fees, which ends up really putting them at huge disadvantage.
Do you agree with that fact, that it puts them at a
disadvantage?
Is there a better process for whistleblower protection
potentially right within the Department of Energy?
Mr. Graham. I think we would be happy to engage in those
discussions, but I did not come prepared to talk about that
aspect of this situation.
Senator Johnson. OK. Mr. Taylor.
Mr. Taylor. I do not have anything to add.
We could provide our technical experts inside our company
to support you on that.
Senator Johnson. I think that is really what we have to--I
think this Committee really has to be taking a look at that and
how can we offer the appropriate whistleblower protection and
how can we ensure safety.
To me, the government is the customer, and they ought to be
in charge. That is certainly the way it was in my business.
I mean, we had pretty well--when our customers said jump,
we jumped, and we did what they required.
So we surely want to look--but, again, I want to design
these things to facilitate safety, as cooperative a process as
possible.
I would like to just turn to, from my standpoint, a little
bit of a conundrum certainly that I would be concerned about--
trying to find any company willing to work on this project.
This is a once-in-a-lifetime problem. It is a very difficult
problem.
How many companies in the world could be viewed as viable
contractors to do something like this?
I mean, what is the universe, the known universe, of
potential suppliers here?
Mr. Taylor. I think if you look at the companies that have
the expertise, the capabilities and experience to do this work,
there are only a handful.
I think that URS, from an operations standpoint and startup
and test of significant facilities like this, we are one of the
leaders.
I think Bechtel in the same sense; when it is doing the
engineering, procurement, construction, they are known to be
the best in the world.
And, if you look outside that, there are other companies
that operate similar facilities. For example, in France, there
is Areva. And I know there are other companies outside, in
Japan and other countries, that also have that capability.
But, in the United States, it is a very small group, and I
would say that URS and Bechtel are the leaders in this
business.
Senator Johnson. Do you know of any companies that might
have the capability that just refuse to do it, or started
working on a project like this and just walked away out of
sheer frustration and mounting losses? Did that ever happen?
Mr. Taylor. I am not aware of that happening.
Mr. Graham. I am not aware.
I would just say that, we are--and I will not speak for
URS, but I think we are fully committed to this really critical
and difficult mission, and we have thick skins, and we are
going to stick it out.
Senator Johnson. This is kind of harkening back to the
hearing we had back in June, but just refresh my memory. Talk
about how these contracts are tailored. What is the review
process? How often are they renegotiated? What are the cost
escalator provisions?
Can you just really kind of describe in detail how this all
comes about and how it is managed on an ongoing basis?
Mr. Graham. Well, yes, and I was here in June when we
discussed this.
The original contract for waste treatment plant was for to
fast-track a pilot plant to get on with the waste. That scope
was expanded, and it now includes the future larger plant that
was going to be a phase two. So it was to do it all at once.
That change was managed through a very formal change
management program for contract management within DOE. And so
all changes in scope, all issues associated with managing
through these complex things are handled through formal change
control with approval of the contracting officer for the
Department of Energy.
Senator Johnson. Are those all cost-plus contracts?
How do you----
Mr. Graham. This particular contract is cost-plus.
Senator Johnson. What is the plus?
I mean, what do you expect above your costs?
What do you--and, again, your costs are fully loaded? I
mean, is that a full costing system then plus a profit?
Mr. Graham. Incentive fees or--right. But the cost is our
cost of our materials and people.
Senator Johnson. So, in terms of your contract so far, how
much have you been paid by the government?
Mr. Graham. I would be glad to provide for the record
later. I am not prepared to answer that today.
Senator Johnson. I would appreciate that information.
And do you have any sense for just your percent
profitability?
Mr. Graham. I do not.
Senator Johnson. What is the plus of the cost-plus? Do you
know what that percentage is that is called out in the
contracts?
Mr. Graham. I do not.
Senator Johnson. OK. Well, again, I would certainly
appreciate that for the record.
Mr. Graham. You bet.
Senator Johnson. With that, Madam Chairman, I will turn it
back over to you. Thank you.
Senator McCaskill [Presiding.] Thank you very much. Thank
you for helping us accommodate, and thank you all for helping
us accommodate, an aggressive schedule of voting at the same
time that we are trying to have hearings with people who have
disrupted their schedules to accommodate ours.
So it is the chaos of the scheduling of the Senate, and I
apologize for it.
Let me first make sure I understand both of your positions,
especially URS.
Mr. Taylor, about notification of DOE about removing two
folks--both of you should answer this.
About what you feel like your legal obligation is in terms
of notifying your customer over firings of two people who had a
very high profile in terms of discussing technical concerns
relating to safety, do you feel that either of you had an
obligation to tell DOE that you were letting these folks go?
Mr. Taylor. I will speak to Ms. Busche. Out of courtesy, we
routinely notify our customers if we have significant issues--
for example, in regards to Ms. Busche, we did have some
individual raise concerns about her conduct and behavior, and
they were severe.
And, basically, I needed to notify DOE to let them know
because Donna is a key person, because these are severe claims
against her. I needed to let them know, especially given that
she is a whistleblower.
Absolutely, we do not support action or retaliation against
whistleblowers. So we just needed to let DOE know. So we felt
that because of that there was an obligation.
From a personnel issue, when you are terminating an
employee for cause, my understanding--and I am not an attorney
or an expert on the matter, but notifying DOE is not formally
required.
Senator McCaskill. So it is not formally required.
Are you saying that you did it?
Mr. Taylor. I am saying that I notified my counterpart in
DOE that we have significant issues associated with an
employee, Ms. Busche, about her conduct and behavior, and that
they were severe, and it was just a notification.
They were not notified that we had actually done the
investigation, that we confirmed the findings, and then we
moved to terminate her. They did not know that we had
terminated her until after the fact.
Senator McCaskill. OK. And it is your belief that that is
not legally required?
Mr. Taylor. That is my belief.
Senator McCaskill. And let's assume it may not be legally
required. But, do 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?
What would be the reason you would not want to tell them?
Mr. Taylor. Well, from a human resources standpoint--I have
experts that basically inform me that these are private issues
with employees.
Senator McCaskill. Wait. You just said you already told
them you had severe issues with her conduct. You did that. You
were not worried about her privacy then--that you had serious
ongoing conduct issues. So you did not hesitate to already
poison the well, so to speak.
But you did not think that somehow telling that you had
fired her was somehow a kinder thing to her since you had
already done that?
I mean, that does not 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?
Mr. Taylor. It was out of courtesy to our primary customer
to notify them that we had these allegations and we are
investigating.
Senator McCaskill. But you did not think it was a courtesy
to let them know that you fired her.
Mr. Taylor. Following the termination, we did call--I
called my counterpart and informed them about the conditions
around her termination at a very high level.
Senator McCaskill. OK. Let's talk a little bit about the
nondisclosure form. I have had a chance to--my staff has had a
chance, I should accurately say, to look at the nondisclosure
form.
It is my understanding that there is nothing in the
nondisclosure form that delineates the ongoing superior rights
of an employee to report safety concerns to either an IG or to
Congress, that is not included in your disclosure report. Is
that correct? [No response.]
Your nondisclosure agreement that someone has to sign when
they come to work for you.
Mr. Taylor. I am not an attorney or an expert on the legal
issues around a nondisclosure form. So I really cannot address
that.
It is not my understanding that that is a document that
gets in the way of any employee raising concerns. We have to
have an open environment. Folks have to have the opportunity to
raise safety concerns. We cannot startup these complicated
high-risk nuclear facilities if there is any risk of safety to
our employees, the environment, and the public.
So it is my understanding that that does not prevent
employees from coming forward.
Senator McCaskill. Do you acknowledge, either one of you,
that you have an issue with the culture there, that people do
not believe they can come forward?
Do you see that as a problem that you need to manage?
Mr. Graham. We obviously, take this very seriously. We will
continue to encourage people to bring any issues that they have
forward.
As I said in my oral testimony, we have several mechanisms
for people to do that. If they want to remain anonymous, they
can.
And all of those issues are openly tracked. DOE has access
to that information. And we make sure that we track those and
appropriately close those issues.
Senator McCaskill. Do you believe the issues that were
raised by the two people that were terminated have been
adequately tracked and taken care of?
Mr. Graham. I can assure that all of the issues that they
raised or were--as was pointed out earlier--raised by others,
are being formally tracked to closure within our system.
Senator McCaskill. OK. So, if we have a list of those, you
could give us that information for the Committee record?
Mr. Graham. Yes, Madam Chairwoman.
Senator McCaskill. So are there any technical issues that
either of these people raised that you thought did not--that
were off the wall or irrational or reflected something other
than a sincere desire to point out technical problems that they
foresaw could arise, or safety problems that could arise?
Mr. Graham. Well, I just would say that, in our process, we
go through and make sure that each of those is vetted by
appropriate individuals.
And I am not in a position to prejudge how those matters
will be resolved. That would not be appropriate.
Senator McCaskill. OK. Have any of them been resolved that
they--because some of these go back years, especially Dr.
Tomasaitis.
Mr. Graham. I do not have those details, but I would be
glad to provide the status of all the issues.
Senator McCaskill. I think some of them were raised as
early as 10 years ago. I would hope they have been tracked and
resolved.
Mr. Graham. I am just not prepared to give you the details
today.
Senator McCaskill. OK.
Mr. Graham. But I will be glad to----
Senator McCaskill. If you would get those details for us,
we would like to see how those concerns have been tracked and
resolved.
Mr. Graham. OK. Absolutely.
Senator McCaskill. Let's talk about legal fees. How much
have you guys spent defending yourself on these lawsuits; do
you know?
Mr. Taylor. I have no firsthand knowledge of what the legal
fees have been.
Senator McCaskill. Do you know, Mr. Graham?
Mr. Graham. I am sorry. I do not.
Senator McCaskill. Is there somebody at your company that
would know?
Mr. Graham. Yes, obviously, we will be glad to provide
that.
Senator McCaskill. Do you have any idea what the hourly
rate is that you are being charged for representation?
Mr. Graham. I have no idea at this time.
Senator McCaskill. We would like that, too.
It is my understanding all that is government money that is
paying for that.
Mr. Graham. OK.
Senator McCaskill. Right? Do you know that?
Mr. Graham. I do not know.
Senator McCaskill. OK.
Mr. Graham. I know there are some splits in what is covered
and what is not. I am just not an expert on that. I am sorry.
Senator McCaskill. OK. Well, we will have a series of
questions about that because there is a real uneven playing
field as it relates to having a case adjudicated of this
nature.
I do not know who is right and who is wrong, honestly. It
is not my place. That is a court of law.
But 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 U.S. Government.
I mean, it is one thing to fight your employer when you
feel like that you have been treated badly. It is a whole other
thing when they are being bankrolled by the U.S. Government.
And that is why I think we have to look at this issue--because
as long as you guys do not admit guilt it is my understanding
that the Federal Government picks up the tab.
So, hypothetically, not that you are doing that in this
case or not that you would do this, but hypothetically, a
contractor could draw out a case as long as possible, weaken
the plaintiff significantly, financially and over time, and
then get a settlement and never have to pay a dime of their own
money for their legal defense, whereas, the other side, who
wanted an adjudication, is denied that opportunity just by
being worn down.
And that is what I would like to get at, and so we are
going to ask a lot of questions around that in terms of timing,
how long these cases take, has anyone availed themselves of
arbitration, are they willing to or, more importantly, is it
maybe an issue where at a certain point in time, if you go so
long and spend so much, that it begins to be the company's dime
rather than the United States Government's dime.
I do not want to chill people wanting to do business with
the Federal Government by them thinking that they are going to
be subjected to costly litigation. On the other hand, this does
not seem fair to me--the way this is currently situated.
I did not have a chance to hear your testimony live. I
wanted to give both of you an opportunity if there were points
you made in your testimony that you want to make sure that I
hear.
I try very hard to read everything, both before and after
hearings, but I want to confess that there are times that I do
not get a chance to read everything. So I did not want to
dismiss either one of you without you having a chance to point
out anything to me that you think I need to know.
Mr. Taylor. Chairman, I would just like to state, and I
stated it in my opening remarks, that URS has a zero tolerance
for retaliation against whistleblowers. We did not terminate
Ms. Busche as retaliation for the nuclear safety issues she
brought up.
We are very concerned about any issues that are raised at
our sites because of the consequences that exist at these high-
hazard nuclear operations. So we want to make sure we have an
open environment at our sites for people to raise concerns so
that they can be addressed appropriately.
It is unfortunate, and it was one of the toughest decisions
I have made in my career. I took over as a General Manager
eight weeks ago. It was brought to my attention through our
Employee Concerns Program that 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.
Senator McCaskill. You go ahead, Mr. Graham, if you had
anything that you wanted to bring to my attention.
Mr. Graham. I think the only thing I wanted to put into
perspective is that the real risk is in doing nothing and that
we have 56 million gallons of high-level waste sitting in
failing tanks and that this is a very long and complex mission
that we are fully dedicated.
And we will not be successful if we do not have this open
process for people to raise their issues and concerns. We do
that in government work. We do that in the private sector.
And so we are fully committed to completing the mission,
starting up the plant safely. It will go through a very
rigorous startup process that will take multiple years.
And so a lot of the issues that are raised of what if when
the plant is operating--we will get there, and I look forward
to the day when we are--when the plant is operational and we
are protecting the people of the Northwest and the Columbia
River.
Senator McCaskill. We are captured by the severity of the
situation and the technical expertise that is required, but I
want to make sure that in our effort to address that that we
are not taking shortcuts----
Mr. Taylor. Absolutely.
Senator McCaskill [continuing]. That we will look back and
regret.
And I think, as we talked about in the previous hearing,
the design-build concept for something like this is literally
like trying to build an airplane in the air.
The delays that have occurred and the budget increases that
have occurred, but looking back, it might have been better to
design first, and probably now that we know how long this is
going to take, it may have actually saved time in the long run.
Let me ask a little bit about Dr. Tomasaitis. In 2010, he
came to the managers of Bechtel and URS with a list of about 50
serious technical concerns at WTP.
And shortly after he raised those concerns, the Bechtel
manager, Frank Russo, wrote Bechtel and URS officials and said,
``We need to kill this BS now. Walt is killing us. Get him in
your corporate office today.''
And then he was ultimately reassigned.
Now were there issues with Dr. Tomasaitis that you allege
were true, that he was difficult to work with and a behavioral
and so forth?
Those are the allegations you are making against Donna
Busche. You understand that this looks very bad in terms of a
culture that encourages people to come forward with technical
concerns.
Do you have any response to someone calling this, talking
about him killing us and this BS after he has raised these
concerns?
Mr. Taylor. Chairman, I am new to the job. I do not know if
you caught that part of the message. I have been on this job
about 8 weeks. Before that, I was in charge of business
development.
I have no firsthand knowledge of Dr. Tomasaitis and the
actions that were taken at that point in time. So I can get
back with you and provide additional information, working with
my team that was around at that time.
Senator McCaskill. Well, I think that is important, and I
think that we need to know your perspective on that because the
essence of this hearing is I understand what your words are,
but we have outside agencies, time and time again, citing
problems with the culture at that facility in terms of people
feeling like they can come forward with concerns.
And the way these two cases have been handled--the courts
will decide. I hope the courts get a chance to decide. I hope
that this is not one of those that they get worn down and
everybody agrees to settlements that nobody ever gets to know
about. But that is not my say. That is the litigants' decision
as to what happens.
But you guys have a serious problem in terms of
whistleblower culture out there, and we are going to have to do
something to make sure that people understand that they are not
going to be moved to the basement; they are not going to be
laid off; they are not going to be fired for raising legitimate
concerns.
And we will look forward to your additional information
that you will give us, and we will have some more questions for
the record.
Unfortunately, the bell is calling me again to go vote. So
we will conclude the hearing at this point, but we will have
followup questions for both you and for the DOE, and then we
will share the Committee record with all those that are
interested.
Thank you very much for being here today.
Mr. Taylor. Thank you, Madam Chairman.
Mr. Graham. Thank you.
[Whereupon, at 12:44 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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