UPDATE: This story was updated on Feb. 19, 2019, to include responses from the Idaho Transportation Department.
In November 2017, the federal Nuclear Regulatory Commission sent a notice of violation to the Idaho Transportation Department stemming from inspections the federal agency conducted in late summer 2017 in four Idaho locations.
About two weeks before receiving that letter, the Idaho Transportation Department fired the employee who had notified the Nuclear Regulatory Commission about the possible violations.
The employee, John Christopher Turner, filed a lawsuit in April against ITD alleging the department terminated him in violation of Idaho’s whistleblower law after he raised concerns about the department’s nuclear density gauge program.
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ITD, in a court filing, says it did not know Turner had gone to the federal agency at the time it fired him for “falsifying testing records” unrelated to the nuclear gauge program.
The lawsuit is pending in Ada County district court.
Nuclear density gauges are portable tools used by ITD to test compaction as part of construction projects. Nuclear density gauges contain a radiation source, which means they are subject to federal and state rules and regulations.
On July 11, 2017, a piece of machinery ran over one of these gauges, according to the lawsuit filed by Turner’s attorneys, Erika Birch and Guy Hallam, who have filed several wrongful termination cases against the state.
“This event triggered a review of the ITD’s Nuclear Density Gauge Program, in an effort by ITD to avoid an audit by the Nuclear Regulatory Commission,” states the complaint. It was this review that found ITD in violation.
ITD asked Turner to review files pertaining to the gauge program. Turner reported he found “inconsistencies and shortcomings” within the department’s files at headquarters.
Turner asked to conduct on-site inventories around the state of the radioactive gauges; his supervisor denied the request, according to the complaint. Turner then asked if each district could be contacted to inventory its gauges. The supervisor again refused, the complaint states.
A few days later, when Turner was told ITD had 104 gauges in the program, he became concerned because he was only able to account for 82 of them via the files.
Turner notified ITD leadership that he thought the missing nuclear gauges must be reported to the Nuclear Regulatory Commission, the complaint states.
“Because the nuclear gauges were radioactive devices containing dangerous materials, Mr. Turner was concerned with the potential for these devices ending up in the wrong hands, particularly as ‘dirty bombs,’” states the complaint. “On one occasion, when Mr. Turner informed his superiors of his concerns related to dirty bombs and asked if ITD had any idea ‘how much radioactive material’ ITD was missing, the supervisors responded that ITD was aware and was ‘hoping that the FBI doesn’t show up here [at the Department].’”
When a number of missing files “suddenly appeared at an ITD facility, in an area previously searched by Mr. Turner and others” Turner sent an email to management requesting an in-person meeting to discuss his belief that there was an active internal agency coverup regarding the missing nuclear gauges, according to the complaint.
“ITD denies the folders suddenly appeared,” the department stated in its response to the court.
“A member of ITD management responded that he had personally concluded there was no cover up at the Department,” the complaint states.
On Aug. 31, 2017, Turner met with Nuclear Regulatory Commission staff regarding his concerns about the gauges and ITD’s actions. The NRC opened an investigation related to Turner’s concerns.
About 10 days after his meeting with federal investigators, ITD notified Turner he was on “investigative suspension” effective immediately, according to the complaint.
ITD then terminated Turner on Oct. 13, 2017, “for falsifying testing records and failing to perform required tests of concrete, thus putting the traveling public at risk, and failing to perform his job duties,” according to ITD’s court filing responding to Turner’s complaint.
ITD also denies that it took steps to try to keep Turner from talking with the commission, stating it did not learn the federal agency was investigating Turner’s concerns “until March 2018, when [Turner] attached a copy of a ‘status of concerns’ letter to a tort claim he submitted to the Idaho Secretary of State.” A tort claim is a precursor to a lawsuit.
In addition to its review sparked by the damaged gauge, the federal nuclear agency separately investigated Turner’s allegations.
Following that investigation, the commission notified Turner it had substantiated two of his three allegations pertaining to ITD’s inadequate gauge inventories and audits. While the federal agency found ITD had violated record-keeping requirements, it said it determined that there were no missing gauges, explaining that ITD was authorized to have up to 104 gauges, but it did not acquire that many, which led to the reporting discrepancy.
“[The commission’s] inspectors were able to confirm with a high degree of certainty that at the time of the inspection, [ITD] could account for all portable nuclear gauges in its possession, with no unaccounted for portable nuclear gauges,” states the letter the commission sent to Turner.
Inspectors also discovered that ITD was in violation of its federal permit because it had more gauges of a specific model than allowed under the permit.
Turner’s third allegation made to the commission — that he was fired because he raised concerns regarding ITD’s nuclear gauge program — is the basis of his pending lawsuit.
The Idaho Office of Risk Management, which is handling the lawsuit for ITD, said it does not comment on pending litigation.
As for the violation notice ITD received from the Nuclear Regulatory Commission, ITD states the federal agency “ determined that there were no nuclear gauges missing, but that the [chief radiation security officer] and some members of ITD management were not aware of how many nuclear gauges ITD possessed.”
ITD further admits that the NRC determined ITD’s chief radiation security officer had not been performing reviews of the program content and implementation.”
The Nuclear Regulatory Commission ordered transportation department to submit an action plan to correct the violations.
ITD told the court it submitted such a plan, and on Jan. 12, 2018, the NRC informed ITD that it had adequately addressed the violations.