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RadSafe Folks -- I would like to tell you, my fellow rad protection professionals, of my experiences as a Department of Energy radiation protection whistleblower and to ask for your support in getting DOE to do more than mouth platitudes in regard to protecting whistleblowers. I was retaliated against for years because of my unwillingness to allow things to be swept under the rug and I was eventually laid off because of my disclosures. Because of the way DOE structures its legal system for whistleblowers, I had no recourse as far as the safety issues are concerned; I could only "sue" on the grounds of retaliation. I had a hearing before a DOE administrative law judge last August and in December he found against me. However, as explained below, this finding did not mean that my concerns were found to be unjustified or that I was not retaliated against, but only that the judge was persuaded that ORNL would have laid me off regardless of the validity of my concerns or the reality of my having made disclosures. (If this sounds like Alice in Wonderland to you, join the club.) My lawyer has just filed my appeal. I have shifted from the legal arena to a "hearts and minds" campaign to communicate to DOE workers, my community, and most of all my fellow professionals what happened in my case and to demonstrate that DOE is not serious about safety and its whistleblower protection system is completely ineffective. So I would appreciate it if those of you who work in the DOE world would express concern to the local and Washington DOE people you know about my case and ask them to communicate their interest to their superiors as well. I would appreciate it if all of you, including those who don't work in the DOE world, would express interest in other ways, such as by postings on RadSafe and letters to your congressmen. I think the issues that my case raises are important for those in our profession to consider. This is particularly true since DOE is both regulator and promoter of its activities and since they have made a commitment to protect safety whistleblowers. Whistleblower Joe Carson, who works for DOE itself, has called upon his professional society (engineers) to step up to the plate and support its members who make reasoned, documented disclosures regarding safety and are retaliated against for doing so. I would ask my professional societies, the Health Physics Society and the American Nuclear Society, to do that too. I asked the local chapter of the Health Physics Society if I might give a talk about my experiences, including both the safety issues and the legal aspects. The president told me that the board is mulling it over, but at present they feel that the subject is "not of professional interest to the chapter" (!). He gave me to understand that they all felt that the subject was controversial and stated that even if I mentioned no names, there was the possibility of "slandering" someone who was recognizable by his title or position description. I realize that they don’t want to offend DOE or the ORNL contractor, UT-Battelle, but this seems overly deferential to me. I have demonstrably fallen on my sword to uphold the integrity of the safety program at ORNL -- to ensure that laws were followed, that regulatory commitments were met, and that people were protected in consistent ways. I have clearly suffered for it. My last salary at ORNL was about $76,000/year, on a par with what others of my experience and education earn, per the most recent CHP salary survey. After being laid off, I was unemployed for 11 months, during which time I did temporary clerical work, tutored, and subbed at a college for an adjunct professor. During this time, I had three professional interviews in the first two months and only one (a non-DOE job) after that -- I believe that word got around and I was blacklisted from DOE work. Finally I got a job in the University of Tennessee Radiological Safety Department as a "radiological safety technologist"; this is a professional position requiring a degree and several years of experience, yet it is non-exempt and pays only $28,000/year due to the university's financial difficulties. (The only other professional of the total 4.5 people on staff is the RSO.) My husband was laid off from his non-DOE job of 11 years last June and only this week got a two-month contract job. We are trying to stay in this area another 18 months in order to allow our daughter, a junior, to graduate with her high school class. We are slowly drawing down our savings to supplement my income. I summarize below the highlights of what happened when I worked at Oak Ridge National Laboratory. I add a few items on philosophical issues further down. I hope that you will all be minded to read to the end, so that you will have an understanding of what occurred and not dismiss this matter out of hand as a case of a "picky" person who didn't have a sense of proportion -- I believe that "the devil is in the details". Please note that nearly everything I say below was either supported by testimony during a retaliation hearing before a DOE judge or was in my complaint to DOE and was not refuted by my former employer. I have extensive documentation of virtually all of it, especially the technical issues (nearly all of which DOE professed no interest in seeing). Should you wish to talk with me or ask questions about this, please send me an E-mail message at janet.westbrook@home.com. I would be happy to speak with any of you by phone -- just drop me a note and we can arrange it. I plan to write a book about my experiences and post it on a Web site. I hope you will all read it and discuss the issues I raise. --------------------------------------------------------------------------------------------------------------------- 1. I have 25 years of experience as a rad engineer and health physicist. I have master's degrees in physics (1975) and in nuclear engineering (1976) from Purdue University and am a CHP (1985) and a registered professional engineer (1986). I worked in the NRC world for an architect-engineer on nuclear power plants (1976-1989) and in the DOE world at Oak Ridge National Laboratory (1989-2000. 2. I was laid off from ORNL with 91 others on 12/1/00. In contrast to every previous layoff, when everybody had weeks of notice, we were told suddenly on the Tuesday after Thanksgiving that our last day would be the following Friday. 30% of us were ESH&Q people, when the percentage of ESH&Q people in the total ORNL population was probably less than 10%. Only two nonsecretarial rad protection people were laid off, I and another rad engineer. This left 1.5 rad engineers at ORNL. None of the approximately 75 rad techs, 13 rad tech supervisors, and 3 rad protection special projects/QA people was laid off, although 2 techs and one supervisor took VRIFs. 3. Over the years from 1995-2000, I reported the increasing number of required radiological reviews avoided (not done when procedure required them to be) by the operational people. I also reported an illegal waiver granted to an operational group; design and operational deficiencies; the weakening of procedural requirements, and the consequent level of safety, to benefit operational groups; and retaliatory actions against safety people, including myself. I emphasize that the procedure violations were not little "oops" events, such as a missing datum on a Rad Work Permit or a failure to record a pencil dosimeter reading, but significant and usually deliberate circumventions of procedures in force. The retaliations were not just "nastygrams" but were significant professional impacts, such as instant removals from projects or committees. I emphasize that the disagreements were not resolved in what one would think would be in the normal way, through meetings and discussions and comment resolution; most often there was no discussion at all, but rather operational management ignored my or other safety people's comments -- and safety managers allowed them to get away with it even as the safety managers acknowledged that procedures were being violated and planning slighted. Particular examples are given below. 4. On the Molten Salt Reactor Experiment (MSRE) D&D project, I was the third in a series of safety people removed at the behest of operational management. The first was a rad tech who insisted, e.g., that operational people frisk out of contaminated areas. He was said to be a "difficult" personality who lacked tact. The second was a criticality safety person whose interpretation of a control document he had authored was disputed by operational management; he was backed up by his document peer reviewer and by his safety manager (both criticality specialists too) but he was overruled by his own division director (not a criticality specialist) who came to some sort of "special arrangement" with operational management. Highlights of my tenure on the project included being shouted at in front of about two dozen people by the project director when I questioned whether the U-232 was in secular equilibrium yet; he said "You are technically incorrect and you don't know what you are talking about". I did not argue, but later produced calculations and other information to show that while the U-232 might be substantially in equilibrium, it wasn't there yet (i.e., we were both partly right and partly wrong). He seemed to accept this but never apologized. Two years later, during which meetings were held to which I wasn't invited and meetings were cancelled without notice to me, I pointed out as tactfully as I could to the chief project engineer that he had misdrawn a curve showing the distribution of U-232 in an important charcoal bed. Later I pointed out that their home-designed cask had not had its penetrations analyzed for neutron and gamma streaming; that there was no density requirement in the fabrication spec (so that the as-built density might be below that assumed by the calculator of the shielding); and that the rad techs and I had reservations about the "if the dose rate is too high, we'll figure out some way to shield it" philosophy adopted by the project because elevating the dose rate in the bay area could have serious operational repercussions at the exit monitors. I was removed from the project with no discussion or appeal when the director of the division managing the project demanded my removal. I was never asked to meet with operational management to discuss any problems, nor was my supervisor; instead, the operational people went to our then-division director, setting a pattern of going far over the safety rep's (my) head and not bothering with lower safety management. This also continued the rad protection director's pattern of caving in to operational management without speaking to the person being removed to hear his side of the story. The day after I was removed, the project had an UF6 filter release incident of a kind that the lead rad tech and I had worried and warned about. The project was found not to have sealed penetrations to the outdoors, as I had told them to and as they had said they would do. Despite this vindication of my watchfulness, I was not reinstated. The lead tech was unhappy; his group leader was angry. Later, an engineer on the project told me that the operational folks were given by their management to understand that I was taken off the project for budgetary reasons; she was shocked when I told her I had been kicked off. The safety coordinator on the project expressed to me that he was irked at how I'd been treated. (I appreciated the kind words from these four conscientious people.) 5. On the Bulk Shielding Reactor fuel removal project, both as a member of an RORC subcommittee and as the assigned ALARA-rad engineer I reviewed the design and operational plans for removing the fuel from the pool and decommissioning this reactor. I demonstrated by calculation, using the reactor people's own numbers, that assumptions made about what the rad monitors would detect were erroneous. My contentions were not refuted, but reactor management got DOE's concurrence by what I think was a ruse, thus allowing them to ignore technical truth. The operational manager on this project repeatedly told me and the two other members of the (independent) Reactor Operations Review Committee subcommittee commenting on this that "it added no value" for him to address our comments, even though he was required to do so; the subcommittee chairman allowed him to get away with it and most of our comments went unaddressed. The chairman of the RORC subcommittee did not tell the other people on the full committee of the issues at the time, but two of the others (including the I&C specialist) told me later that they would have backed me up had they known. 6. On the High Flux Isotope Reactor (HFIR), on which I worked from 1989 until just before I was laid off, I pointed out the review and planning failures that lead to exceeding a Rad Work Permit dose, including the failure on a resin project to estimate doses, notably to a person when the work field was known to be 2 R/hr at the whole body and 9 R/hr at the hands. On another operation, two reactor people were allowed to tote a strainer manually over to a sink, when the strainer held a hot particle reading 72 R/hr at contact, without any formal rad review. My division director allowed reactor management to avoid any commitment to change or to record either of these events as deficiencies. Eventually, at operational management's behest (particularly at the suggestion of the Bulk Shielding Reactor operational manager), I was not allowed to do the rad support engineering for the big changeout and reconfiguration outage to begin in 9/00; this was given to the most junior rad engineer, who had no reactor experience whatsoever. I was told that they thought my reviews were "too picky" and I took too long, even though they gave no examples of any time I failed to meet a deadline. I believe that my RORC work was held against me. My supervisor and section head made it clear that they would have preferred not to assign the other rad engineer, but that financial factors made it necessary to assign the reactor people's choice. I did continue to do the reactor reviews (but not the professionally juicy support functions) until late in 10/00, when the other rad engineer allowed a procedure violation to occur; although I worked out a solution to this problem in a manner supportive of the reactor people, they and my new section head decided it was best to have me out of the picture. At operational management's behest (and against my supervisor's wishes), I was removed totally from reactor work and that other rad engineer was made the official reviewer. 6. Reactor Operations Review Committee (RORC): I was a member of this independent review committee from 1991 until I was laid off in December 2000. I was a full member until about 1998, when I was demoted to "ad hoc member", meaning that the chairman would call on me only as needed. Thus I was excluded from knowledge of a lot of what went on after that. Another member, an instrumentation and control engineer, was also demoted and he resigned in disgust. I almost did, but decided to continue to "try to work within the system". We and other members were very concerned about the reactor division's attempts to control the committee by, e.g., trying to get someone in the reactor division on the "independent" committee who could "explain and present issues to the committee"; we were also concerned about the successful efforts by that division to get the scope of the committee and its budget reduced. Note that efforts by that division to push back at DOE in this time frame backfired spectacularly: we were told that DOE, enraged, demanded and got the removal of the division director. 7. The division that managed MSRE also managed the REDC facility, which processes transuranics that come out of the reactor. When they demanded my removal from MSRE, they demanded that I be removed from REDC as well although no complaints had been made about my REDC work. The rad engineer later laid off with me was then appointed as the REDC rad engineering rep. At my suggestion, he studied the RWP doses and other information and concluded that my suspicion that REDC and its rad techs had widely avoided required reviews was correct. Our section head asked him to write up the data as a report (4/99), which the head then took to our division director and the rad tech section head. "Somehow" this report ended up in the hand of REDC management, which screamed and demanded the right to fact-check the report. They also declared the report writing rad engineer persona non grata and refused to allow him to work at REDC. Our division director agreed, thus caving in to operational pressure even though the report writer had done nothing wrong and had written the report only when told to do so. As of spring of 2001 (when DOE, as a result of my revelations to them, asked about the report), REDC management had still not fact-checked the report and it was still marked "draft". Note that REDC gets about 40% of the ORNL collective dose and that the majority of the 15-20 ORNL people getting the highest doses work there -- yet over the years I was at ORNL, it had the least ALARA and rad engineering input and review. 8. In 5/99, right after my colleague's removal, the division managing MSRE and REDC asked for and got a waiver allowing them to have rad tech supervisors, rather than rad engineers, perform the higher-level independent operational reviews required by procedure. The granting of this by my division director was illegal, by another master procedure that did not allow waivers to "shall" statements under our 10 CFR 835 commitments. As testimony at my retaliation hearing by UT-B's own witness showed, my director did this due to financial pressure by the operational people: they threatened to outsource rad protection unless concessions were made. My section head was so concerned about this waiver that he went over the division director's boss and then to the boss's boss. He never received a reply, contrary to company policy. 9. Another concern with regard to the waiver was that the rad tech supervisors already were in involved ex officio in the review of all jobs, so an additional rad tech supervisor's review would not add much (would reduce the "diversity" of experience applied to the review). These supervisors spent nearly all of their time managing the tech activities. They received no special training in shielding, dose assessment, ventilation, accident analysis, etc., and I believe that many could not read engineering drawings. This bore on their ability to evaluate the adequacy of proposed control and contingency measures and to anticipate things that might go wrong, versus the group of rad engineers that did this stuff as a routine and continual process. Thus as a group the rad tech supervisors were arguably unqualified to be doing the higher-hazard reviews. After the waiver, they were given no training or guidance in how to do these reviews; the depth and scope were left to them to decide. The rad tech organization had already gotten a change to the review procedure several years before that removed the contamination triggers for review and set the dose rate trigger at 5 R/hr, far above that of any other DOE site. Yes, you read that right: there was no required rad engineering or professional rad review for ANY level of contamination or for any dose rate below 5 R/hr. The rad tech organization alone reviewed and controlled all work based on contamination and on dose rates below 5 R/hr. Contrast this to the situation at most DOE sites and nuclear power plants, where a group of dedicated ALARA engineers, rad engineers, or ALARA coordinators specializes in planning and approving rad work. 10. I spoke with an REDC-HFIR DOE facility safety rep about the HFIR problems, particularly the strainer incident. He told me that the reactor people were not going to do a prejob briefing on the strainer toting until the DOE people pointed it out. (The reactor site manager later denied this.) He advised me to speak with our site DOE rad protection rep. This latter rep had already been approached by my section head when I spoke with him and had told the section head that DOE deferred to operational management with regard to compliance with internal procedures; that is, noncompliance per se was a strictly contractor matter. When I spoke to him, he said the same thing. I pointed out to him DOE's writeup (PNOV) of an incident for which the Hanford site was fined by DOE, the reason given being that they had not followed their procedures and had not properly reviewed the work to be done. DOE pointed out that even though the resulting doses were small, the potential was there for much higher doses and so the violation was significant. I pointed out that the HFIR strainer and resin work incidents were analogous and that there were therefore grounds to infer a 10 CFR 835 violation (the procedures were part of the Rad Protection Program Plan required by 10 CFR 835, among other reasons). He became extremely hostile and asked if I was categorically asserting a 10 CFR 835 violation. If I was willing to do so, he would look into this, but otherwise he was not going to listen to any more about it. I was surprised at his attitude, putting the onus on me and my section head to stick our necks out and accuse our site of a violation instead of checking out the details for himself as any good oversight person should do. Realizing that he was clearly averse to hearing any bad news, I ended my conversation with him. I later spoke with a DOE accident safety person I respected, who told me that DOE people themselves had been "recalibrated" with respect to the ISMS [see below] philosophy. He stated that they had been directed not to get involved or put themselves forward unless they saw a clear safety violation; they were not to correct any drifts toward bad practices until the contractor was across the line into the red zone. His supervisor later sent me a memo to confirm this and intimated that their hands were tied. 11. In a change made as of 4/1/00 to the rad protection procedures, the waiver was not only "set in concrete", but operational management was allowed to choose their own higher-level reviewer. Yes, you read that right: operational management is allowed to look at everybody in rad protection and choose whomever they like to review their work. The operational review procedure has no requirements for qualifications or experience for the reviewer and there is no provision for rad protection management to approve of or veto the choice that operational management makes. Many changes in the rad protection procedures were made at this time, with the rad tech organization forcing many changes in the name of customer service even in procedures in which they had little or no scope, such as the design review procedure. Although the design review procedure was not changed to allow techs to do the reviews, I believe it was changed to allow the rad protection head to designate the reviewer without regard to qualifications. Thus rad techs could be assigned to do design reviews. Note that the rad tech organization had been allowed to harass the rad engineers for years without being punished or, often, even reproached. For example, one group leader altered a Dilbert cartoon to be derogatory toward rad engineers and posted it on our office doors; he later directed his lieutenant to sign off on a review that I was supposed to do (and wasn't told about); a rad tech forged an E-mail message so that it appeared to be from me; at every procedure revision, we endured many nasty comments in print from the rad techs but were not allowed to answer in kind; false information about us was given to the line managements, e.g., that we had no field experience and were out of touch with operational practices; and we were often the subject of "humorous" comments when we were in the field. These things were reported to our division director and the rad tech section head, but they did nothing to stop it. It is my belief that they condoned this adversarial relationship because it helped to keep us rad engineers backed off from knowledge of what was going on. (Fortunately, many of the techs, especially those who had worked at power plants, did not subscribe to the "enemy" school of thought about us and tried to keep us informed. Bless them for their commitment to safety.) 12. In 10/99, concerned about the way operational people were controlling the safety people, I went to the ORNL Office of Employee Concerns (OEC) and registered my concerns. They had no clue as to how to handle technical issues and after some months suggested a panel to resolve the matter. But the people they proposed were nominated by our division director, a clear conflict of interest since he was a subject of my concern; also, one of those nominated worked under him, another was a friend of his at another site, etc. OEC professed not to have known this. They played around with all this until after new management, UT-Battelle, took over on 4/1/00. Then OEC asked if I would take the matter up with UT-Battelle; I agreed and was referred to my new division director. This was a person who had been elevated from a low safety coordination position in an operational division to be the head of the new safety division, which included rad protection, industrial hygiene, industrial safety, and criticality and accident safety, on the basis of being mentored by a high operational manager. The former rad protection division director became her deputy and chief adviser. I spoke with the new director for over 5 hours in three sessions in 6/00. In 9/00, not having received a reply, I sent her a "nudge" memo. She then sent me a bland reply that ignored many issues I had raised and hand-waved over the rest. In early 11/00, I went to DOE and then submitted a written "complaint", as it's called. On 11/28/00 I was told I would be laid off as of 12/1/00. 13. I also went to the Defense Nuclear Facilities Safety Board on about 8/1/00. DNFSB is an oversight agency set up by Congress to look at DOE defense safety; their scope at ORNL includes only Building 3019, where fissile U-233 is stored. I pointed out that the design and operational review requirements for 3019's package inspection and reprocessing operation were not being met, even after their management people were told by me and others that the reviews needed to be done. My DNFSB contact asked about these reviews by E-mail. The project ignored him. After a month, he asked again and this time they said they had not realized the reviews needed to be done, they'd get right on them, etc. Note that the division managing 3019 is the same one as manages REDC and managed MSRE. 14. They also had 4501, the hot cell facility that was to handle the repackaging. I worked peacefully on 4501 stuff until another company took over management of MSRE, at which time the top MSRE managers moved over to manage 3019 and 4501. They decreed that I and my fellow rad engineer (the one laid off with me who was persona non grata at REDC) could do the work, but only my supervisor could attend meetings, ask for drawings, etc. She acceded to this demand in spite of its outrageousness and the resulting inefficiency because she knew she wouldn't be supported by our division director if she refused. 15. DOE appointed an all-DOE team to investigate my concerns and the retaliatory actions. (This occurred after I was laid off, because I had submitted a writeup of safety concerns as part of my complaint.) Of the five people, only two were health physicists and only one of those an operational health physicist; he was a local person who had previously been part of "blessing" ORNL's rad protection operations, so he might be thought to have had a conflict of interest. Also, this person told me up front that DOE policy was to give the contractor a lot of leeway with regard to its own procedures, including procedural compliance; he discouraged me from expecting anything to be done. This team did not fulfill its mandate as given to them by the DOE manager who commissioned their work; they looked at only the present state of rad protection and did not look into any past cases or the retaliatory actions. Their brief report completely accepted UT-Battelle's statements; they "patty-caked" many items. For example, the team only "recommended" that the suppressed rad engineering report re REDC be fact-checked and finalized. The head of the team admitted to me that the REDC rad tech supervisor stated that he had fact-checked the report long ago, but he could produce no documentation. But this misstatement, which one would think an investigator would find significant, did not make it into the report. Obviously, this and other omissions showed that DOE would not hold ORNL accountable when an internal report not to operational management's liking (and never refuted by them) was suppressed and when a safety person was retaliated against (by not being allowed to work on REDC). I was given a draft copy of the team's report "under the table" and I sent back a commentary on it to DOE, pointing out all the errors, omissions, and obvious instances where the team was using UT-Battelle's wording without using quotation marks (e.g., in the various egregious motherhood statements that seemed to come right from the public relations department). 16. Due to the failure of the DOE team to investigate properly (and I hope in response to my criticism), DOE hired an outside two-person team to investigate further. As the team told me, they were allotted very little time to work and so could not really investigate in depth; also their scope was narrow. Nevertheless, their report stated that they believed that there was a decided "chilling effect" on the reporting of safety issues at ORNL. One principal reason for their saying so was UT-Battelle's insistence on having its lawyer present at all interviews they conducted; the team protested to DOE, but DOE allowed UT-Battelle to have the lawyer there. (At my hearing, the UT-Battelle lawyer protested that the team's report was misleading: he said that all interviewees were told that they could decline to have the lawyer present or could also ask to speak with the team later without the lawyer present. But obviously when the company's indicated norm is to have the lawyer present, anybody who objected might be viewed with suspicion and retaliated against. All of the interviewees, of course, knew of their own personal knowledge that I had been retaliated against. The team obviously took all this into account when they wrote their report.) 17. I used the DOE whistleblower process rather than the alternative Department of Labor or state process because I felt that DOE should have a better grasp of the technical issues and I wanted to make a test of DOE's process. The following is important to realize: the complainant has no standing to sue for or force changes with regard to safety concerns or acts against others. The complainant can only seek redress for retaliatory acts against himself. In making his case, he has to show that he made disclosures and that a reasonable person (peer) could agree that the concerns were reasonable. He does not have to show that his concerns were justified, only that he was reasonable to be concerned. When he has met this burden (as the legal term has it), then the burden is on the employer to show that he would have performed the retaliatory action -- in my case, my layoff -- even if the employee had not made disclosures. Thus in the hearing there is no investigation of whether or not the safety concerns were true or not; that is irrelevant. Yes, you read that right: there is no finding of fact as to whether the safety violations took place or not (although as the testimony of UT-Battelle's own witnesses showed, they did). The only questions are whether the retaliatee made reasonable disclosures and whether the employer would have done what it did whether or not the employee said anything. I was told by DOE that I have no standing to effect any change with regard to my safety concerns. That is, they took the safety concerns in my complaint and said thank you. They need never get back to me to state how the concerns were resolved or even if they were; there is no mechanism for me to comment and say that I am or am not satisfied that the concerns have been resolved. I have standing only to pursue remedies for retaliation, and only for retaliation occurring within 180 days of my complaint. Thus there is no redress possible at all for all the years of retaliation and harassment. Further, I had to hire my own lawyer; she took the case on spec, but still I had to pay her a retainer. I had to pay a further retainer for the appeal. Before I had the lawyer, I almost lost the case on a technicality because the DOE person I submitted the complaint to did not explain what I had to do according to the law -- which he should have done before I submitted the complaint. I now am of the opinion that if the (preliminary) investigating officer finds that the case appears to have merit (the equivalent of showing probable cause) -- as the investigating officer did happen in my case -- then DOE should provide an internal DOE advocate if the complainant chooses to use one. If DOE expects people to come forward and risk their jobs and careers, it is going to have to provide at least moral support and advice in order for them to be able to do so. 18. Highlights of the retaliation hearing included the following. My supervisor and my section head confirmed that procedure violations had taken place, that they were very opposed to raising the dose rate trigger from 1 to 5 ("fought it to the bitter end"), and that they had been very concerned about the procedure waiver. They stated that I could be abrupt, but always backed up my positions with citations of law, procedure, or standard. Their testimony and that of our former division director supported my assertions that when operational people demanded removal of a safety person they objected to, the removal was done without even talking to the person. A criticality safety person who was one of the three safety people removed from MSRE and who still works at ORNL courageously came to testify in my behalf; in particular, he detailed how he was removed by his division director at the behest of operational management despite the backing of his peer reviewer and his supervisor. Testimony of various witnesses made it clear that financial considerations were paramount. Although on the layoff form there was no "customer service" criterion, every witness used that term and it was clearly the true principal criterion applied in the layoff determination; testimony was explicit that providing good customer service was equivalent to "making the customer want and be willing to purchase your services". The human resources rep testified that it would be improper for my division director to have dictated a performance rating; my division director testified that she was not acquainted with the individual performances of the grunts below her. Yet, as my former division director testified, she selected me and my fellow rad engineer by name to be laid off and as my supervisor testified, she directed that my performance rating be a 3 out of 7. My supervisor testified that she was not consulted as to the best person or persons to be laid off and that she had already proposed, and our section head had approved, a performance rating of 6 for me when she was told that I was to get a 3. [I.e., I was to be moved from the "very good" range into the "deficient" range.] There apparently was some negotiation -- I infer that somebody pointed out that it would not look good for me to get a 3 when I was known to have reported concerns. So my final rating was a 4 ("average"). No explanation or justification was offered as to why the division director doctored my rating. My expertise and technical superiority were testified to by various witnesses. Yet the areas in which I was strongest, such as shielding (I was the only one in my group who ran the big codes such as SCALE and MCNP), were termed "not a core competence" for a rad engineer. I heard myself called "difficult" and heard it said that "people didn't want to work with me". I think it was clear from the testimony that it was just a few operational managers who didn’t want to work with me, not the discipline engineers (such as the mechanical and structural guys) and the other safety folks, with whom I always got along well. I brought a thick binder of documentation in case I needed it and my lawyer introduced into evidence a stack of memos by project people praising my performance over the years, but my former division director, who testified that he had received various memos criticizing me and demanding my removal, did not produce any memos criticizing me or my technical positions. He named off a list of people who supposedly complained about me; I recognized that many were multiple names regarding a single project (so that the true number of complaints was far less) and that two were the names of secretaries. Over a year earlier I was told that these two had complained about me (together). I then spoke with one of them, who said, in essence, that she had remarked on how emphatic I was regarding a change in office computer policy or some such and apparently our former division director put that down as a complaint. There was some other fishy stuff like this. However, I was not able to counter this testimony, since the judge refused to allow me to make a rebuttal statement. I told him that I wanted his refusal to be on the record and he agreed, but it is not in the transcript. 19. The judge's decision went against me. As he pointed out to my lawyer later, he was not ruling on whether my safety concerns were justified, but on one narrow point: whether or not UT-Battelle would have laid me off whether I had opened my mouth or not. He decided that they would have, based on testimony as to the alleged financial need to lay off over half of the rad engineering staff but not one of the rad tech staff. In his decision, he did not even mention the doctored performance rating, which in any other type of discrimination case -- sexual, racial, age, etc. -- would have been taken to be almost prima facie evidence of retaliation. Thus the bottom line of the DOE process is that it doesn't matter whether your safety concerns are justified, or whether you were retaliated against for making them; as long as the contractor can make argue that he would have laid you off anyway, the contractor wins. Yes, you read that right. The many and repeated violations were not relevant. The years of getting removed from projects, of abuse from and harassment from the tech organization, and of being overruled on technical issues in our area of expertise -- and finally the layoff -- this counted for nothing with DOE, even though there was a lot of evidence that it had happened and hardly any that it hadn't.. It didn't matter as long as the contractor could assert that it had to lay us off for financial reasons. ---------------------------------------------------------------------------------------------------------------------------- 20. History Consider the following to understand how things came to the pass they did at ORNL. As those of you who have worked in the DOE world know, many years ago the Atomic Energy Commission was split into the Nuclear Regulatory Commission and ERDA, DOE's predecessor. This was done on the principle that an entity responsible for promoting or fostering industry should not also be responsible for regulating it. For some reasons I am unsure of, this principle was not applied to ERDA. Thus ERDA, and later DOE, both regulated and promoted its own activities. The NRC was known for its greater rigor but also for its more comprehensible applications of its rules, versus DOE. This may surprise those of you in the NRC world, but believe it. As a person who had worked in both the NRC and DOE worlds told me when I first went to work at ORNL, "whatever quibbles you have about the way NRC does business, you are going to think they are a bunch of sane, rational people compared to DOE". This proved to be true. Regulation was very arbitrary and politicized. These failings on DOE's part led eventually to pressure by Congress to do better. Under Admiral Watkins, DOE promulgated DOE Order 5480.11, which required, among other things, the application of the summation of internal and external doses (thus preceding the application of this under 10 CFR 20 in the NRC world) and the application of the ALARA process (I know this latter provision is controversial, but please bear with me!). I was hired at ORNL to help start the formal ALARA program. They did not have anybody that we would recognize today as a rad engineer, so the two of us engineers and our boss also functioned in that capacity. I served on design teams, including writing radiological design criteria and reviewing drawings and other design documents. I served on operational planning teams, including reviewing procedures and helping to determine hold points. I was told years later by my first boss that the head of the rad protection organization, at that time a section head position, was told by their mutual division director to start a formal ALARA program, presumably including the rad engineering aspects. But that head dragged his feet -- he felt that his rad techs, rad tech supervisors, and one rad protection professional helper provided all the ALARA support that was needed. He felt that a formal application was not needed and that informal processes and ad hoc determinations were adequate. The division director, recognizing that this would not do in DOE's eyes, then recruited my old boss to start the program. (This dichotomy of philosophy between the ALARA-rad-engineering group and the rad tech section lasted until the latter won the battle in 2000 and the group was subsumed into the section and then gutted in the layoff.) The rad tech section head then hired two people in 1990 and 1991, one with a little hospital experience and one straight out of school, to be his version of rad engineers. Both had master's degrees. They were not well accepted by the class-conscious rad tech organization and more important, they had nobody experienced in rad engineering to mentor them. When this section head retired, he was replaced by the person who eventually became my section head (and who testified at my hearing). In 1992, DOE issued the Rad Control Manual, a set of mandatory provisions governing rad work at all DOE sites. Like many other people, I was critical of DOE's issuing a "one size fits all" set of requirements. I had a conversation in a stairwell once with a mid-tier DOE person in which I criticized one aspect of the manual and he responded that the DOE rad protection people themselves wanted to change it but "there's politics involved". I have since come to believe that although DOE's choice of requirements and its demand that they be put into practice over a relatively short period of time were ham-handed, the idea of a standard of practice was a good one. At ORNL, the required ALARA Committee, the required formal design and operational reviews (including review triggers), and related provisions were the province of the ALARA-rad-engineering group, while the tech-oriented posting, contamination control, and other measures were the province of the rad tech section. The procedures were completed overhauled to incorporate the requirements. The ORNL safety organization was reorganized in about 1993 to make rad protection a separate division. A new Rad Controls Section was formed that included the ALARA [Rad] Engineering Group (AEG), which included the two original rad engineers left and the two rad engineers that had been in the tech organization; the new head of the group was a person who had been doing special projects in dosimetry and had, as far as I know, no rad engineering or ALARA experience except for some shielding calculations. The other original rad engineer soon retired, leaving the supervisor and the three rad engineering "grunts". [The two of these three with the most seniority and experience were the ones laid off, while the supervisor and the junior person were retained.] In 1995, DOE issued 10 CFR 835, "Occupational Radiation Protection". Unlike the DOE Orders and the Rad Con Manual, this was a "rule" or law. For reasons clear only to regulatory lawyers, DOE could not properly apply the Price-Anderson Act and Amendments (aka the Price-Anderson Amendments Act, or P-AAA) under Orders, only under rules. P-AAA provides civil and criminal penalties for violations. 835 is a spartan document, with some specific provisions, such as the dose limits, but with other provisions that are generic, such as application of the ALARA process and use of procedures. 835 also requires that a DOE contractor submit a formal, written rad protection program (plan) (RPP)for DOE to approve; the RPP details how the generic and specific requirements of 835 are to be carried out, e.g., via procedural requirements. ORNL management stated at the time 835 was promulgated that DOE said that the RPP had the force of 835, i.e., the force of law, so that violating it would be a violation of 835 and thus a P-AAA violation. As to what sorts of organizational arrangements or structures would be compliant with 10 CFR 835, DOE made its intent clear in a series of guidance documents, called the 835 implementation guides. DOE said that while provisions to meet the requirements of 835 did not have to be those recommended in the guides, use of those provisions would create "a presumption of compliance" and departure from the recommendations would generally require justification. DOE also issued 10 CFR 830, called the "Quality Rule". The basic applicability to rad protection is the requirement that procedures should be followed (with deviations allowed only under the site's formal approval process). Violating 830 would also be a P-AAA violation. DOE also provided guidance in its weekly operating summaries that discuss problems and incidents and their causes. DOE also issues PNOVs (Preliminary Notices of Violation), in which DOE explains to a contractor why it proposes to levy a fine. As I pointed out at my hearing, reading the years of these discussions gives contractors a good idea of what DOE finds to be noncompliance. High on the list is failure to comply with safety procedures, exactly what was occurring at ORNL. 21. Customer Service and ISMS After about 1996, when 10 CFR 835 was promulgated, ORNL operational management seemed to become very aggressive about "pushing back" the safety people. They did this through financial pressure, helped by the adoption of the concepts of "customer service" and ISMS (see below). Some of the things that occurred I have detailed above. A broader discussion follows. At ORNL, "customer service" became a mantra for the safety people. For the last year and a half, I never had a conversation with the rad tech section head in which he did not stress customer service, and every one of the monthly ALARA Engineering Group staff meetings for at least two years featured an emphatic statement by our supervisor of the importance of pleasing our customers, "selling our services to our customers", "competing for work", etc. The concept of "customer service" was a godsend to operational management: they could define themselves as the customers of the safety people, so that according to the latest management gurus, the safety people ought to be studying ways to please and serve the operational people. One of the rad protection special projects people gave a talk at the rad protection safety meeting during 2000 in which he expounded on customer service. He said that "a problem is what my customer defines it to be" and that if a customer chooses not to do what he should, it is the safety person's fault for not being persuasive enough. The whole tone of this talk -- which was heard and apparently blessed by all rad protection managers including the division director -- was that operational management defined and controlled the safety process and the safety person could only "advise" and "recommend" things to them. UT-Battelle, when it came in, also put forth the idea that the safety people were not "the police" and did not perform oversight; this was supposed to be done by other, unspecified entities. I tried until the day I left to find out how this would be done. I never saw any mechanism in place for it except for a small group that only reviewed incident reports and only retrospectively -- there seemed to be no prospective oversight group any more that participated in planning. I believe that it is inimical to proper safety oversight for the safety people to go to the "customer service" mode of thinking. However, even if they do, they have to identify their true customer: not the one who is "purchasing" their services, but the one whose interests they are to advance. Given that, I maintain, the first customer of the safety people is the worker (although he often is not aware of it), followed by the regulatory entity (DOE in my case), site central upper management (who are charged with the proper running of the site, its overall best interest, and its legal defenses), and finally by operational management. Thus protecting the worker -- putting his interests first -- can sometimes seem to run counter to putting operational management's interests first. It can also be argued that acting in operational management's true long-term interests can seem to run counter to what they short-sightedly state is in their interest, just as denying a kid a third ice-cream sundae may be in his best interests even though he insists he can handle another one. DOE, under pressure from DNFSB, adopted the Integrated Safety Management System (ISMS) as its philosophy of safety management and required all its contractors to adopt it as well. The basic principle of this philosophy is that line (operational) management is responsible for safety. This means that line managers are supposed to ensure that the hazards of the work are evaluated, proper controls identified before the work starts and applied during the course of the work, and postwork evaluations are performed. DOE's and DNFSB's main ISMS documents (which are substantially the same) state all this but do not state anywhere that I can find that line managers have veto power over the evaluations of the hazards and the choice of the controls. Rather, they state that safety people should be involved in all this. So as I understand it, the line manager is thus responsible for ensuring that safety controls are identified and applied but he does not have veto power (authority) over what the controls are and whether they should be applied. ORNL, however, has a line management saying that was originally quoted to me by the manager of the former industrial safety/industrial hygiene division and was confirmed as ORNL's "official" line by managers in the former rad protection division: "The line manager selects the level of risk he is willing to accept and then selects the (safety) controls to correspond". This amazing statement expresses the ORNL application of ISMS as follows. The line manager decides if and when he needs input from the safety people, decides if the controls they "recommend" or "suggest" are acceptable, and then decides what he wants to apply. This includes, in ORNL's practice, whether or not to have reviews done according to procedures whose provisions line management agreed to long ago. This has been used to justify procedure violations, on the grounds that the line manager interprets the procedure and decides for himself what he thinks he needs to do. (Note too that the manager chooses what risk he is willing to accept, although it's not his body getting zapped by the neutrons or standing under the tank being hoisted or sticking into the electrical cabinet that may or may not be disconnected from the power source). In the case of the strainer job, where the procedure explicitly said a review needed to be done if the whole-body dose rate was 5 R/hr or greater, the reactor manager, as he stated to my supervisor and me later, decided without rad engineering input that the operation was safe even though the estimated dose rate from the particle was 60 R/hr at contact (later found to be 72 R/hr) and was undoubtedly greater than 5 R/hr at the body position. No determination was made as to the actual dose rate at the body position or as to the estimated dose; he just decided by inspection that the job could be done with minimal dose. Any experienced safety person can see where this sort of practice can lead, but DOE, by its refusal to criticize or correct this practice, implicitly has accepted it. This puts the lie to DOE's protestations of its commitment to safety and to operation by procedure. Operational management at ORNL found that they could apply financial pressure to the safety organization to get the result they wanted. This was particularly true with respect to the three safety division directors. I have already spoken of how safety people were removed without appeal on the basis of threats to withdraw funding. Besides that, a reengineering committee singled out the ALARA Engineering Group as needing to charge out more for its work, instead of doing it on overhead money. We already charged out certain support work; also, the other two rad engineers charged out via the RAP team, I charged out via the RORC, and our supervisor charged out via DOELAP work. Still, the idea that the group needed to "sell" its services internally began to be mentioned more and more. When UT-Battelle came in, our group began a shift toward charging out for all our services. This had not been accomplished by June, which was when the financial figures were assembled by rad protection management in preparation for the anticipated layoff. This was a central point in my hearing, because it was important for UT-Battelle to be able to show that the ALARA Engineering Group could not charge out enough for all of its members to be supported and thus some would have to go. Testimony at my hearing was a round-robin of fingerpointing as to who made the decision that the group should go to full chargeout mode, and when. But the UT-Battelle witnesses were adamant that the one of the three rad engineers who was charging the most should be retained because he was charging out the most (i.e., since he obviously pleased the customers). The judge elicited the testimony that the rad engineers did not control their own assignments and had no way to go out and scrounge work. Yet my division director testified that she did not "see evidence that Ms. Westbrook could move to the chargeout model" of work, as if it were a choice I could make on my own initiative. It was stated in testimony that the pool of people doing operational reviews had been opened, first by the waiver and then by the procedure change of 4/1/00, first to rad tech supervisors and then to anybody in rad protection. However, the judge failed to see the significance of this point, in that he accepted the implicit assumption that it was okay for the pool of qualified reviewers to be enlarged from 4 to 4+15=19 people to (potentially) 19+~70=~89 people without any requirements for consistency, qualifications, or expertise. He also failed to see that this was a mechanism for shifting the funding from the rad engineers over to the tech organization -- he was focussing on changes that had occurred since UT-Battelle took over and not on what had begun earlier under the former rad protection division director. (Note that UT-Battelle was discussing these changes months before they took over, as testimony showed.) It was pointed out in testimony by UT-Battelle's own witnesses that using rad tech supervisors lowered the level of safety (because less expertise was likely to be applied in the review) and that this change was made because the line managers demanded it, i.e., they wanted reviews to be done by people they had more control over. Testimony indicated that they had more control over the rad tech organization because the techs had charged out for years and because they "lived in" the facilities and tended to identify with the facilities and projects they worked for. This financial starving of Peter to feed Paul, so to speak, was clearly deliberate, but the judge failed to appreciate this fact. I think that safety oversight is not incompatible with charging out, as long as the operational groups are not allowed to opt out of required safety work unilaterally and are not allowed to control the assignments of safety people to their projects. But both of these things occurred at ORNL. I think that the root cause of the problems in the ORNL safety organization is money. Specifically, I think that there is a significant conflict of interest in saying that operational managers are responsible for meeting operational milestones and for ensuring safety, if that means that they are given veto power over safety controls and provisions and they control the purse strings of the safety people. At some sites, operational managers are given bonuses for meeting safety goals and such goals are aggressively set. But at ORNL there usually are few and only very loose goals and they generally apply not to individual projects or facilities but to the whole site. Thus operational managers have personal financial incentives to meet operational milestones -- there are bonuses or recognition for that -- but not to meet safety goals. In my experience, few ORNL people or facilities were ever disciplined for safety infractions, but as my former division director pointed out, a person in the MSRE-REDC division was once given an operational achievement award for completion of a project in which at least 4 radiological event reports (dings) were written against him. Anybody in DOE or DNFSB who investigates safety problems at ORNL should post a sign on his wall that says "It's the money, stupid", because money is such a strong driver. 22. DOE Is Demonstrably Not Serious About Safety DOE at any given time is usually asleep at the switch and, as my experience shows, when people like my section head or me try to feed them information about possible problems, they bury their heads in the sand. They are unwilling to perform real-time oversight; they are resistant to information provided by informants on an informal basis, making the informants risk providing the information on a formal basis (e.g., via a whistleblower complaint); they have no process in place to investigate reported concerns in a written, systematic way, e.g., by formally defining each item and resolving it explicitly; they have no process in place to investigate retaliatory concerns, ditto; and they have provided no means for a person retaliated against to obtain redress except via a "why don't you and him fight" adversarial process in which DOE is a "neutral" referee between unequal opponents, i.e., the retaliating contractor and the retaliated-against employee. In my case, DOE has implicitly told the contractor -- and thus all other contractors -- that it's okay to retaliate, as long as you can concoct a final rationale for doing so. It's okay to blast people's careers by removing them from work, allowing to be harassed repeatedly, refusing to allow them to counter accusations against them, and finally laying them off after their work has been speciously transferred to others arguably unqualified in many cases to do it. After this, DOE cannot with a straight face say they are serious about safety. |