Environmental Whistleblowers: An Endangered Species

by

William Sanjour(1) and Stephen M. Kohn(2)

February 1994

Environmental Research Foundation
P.O. Box 5036
Annapolis, MD 21403-7036

 
    Year after year it is responsible for saving countless lives, yet its occurrence is as rare as public understanding and appreciation of it. The popular misconception sees whistleblowers as malingerers, malcontents or incompetents, who invent tales of wrongdoing or grossly exaggerate in order to protect their jobs or to get revenge against their employer. In reality, most whistleblowers are overachievers with excellent histories of performance before they felt compelled to blow the whistle.
    In nearly all cases whistleblowers are responding to a moral dilemma that is thrust upon them, not one they seek or anticipate. Usually the dilemma pits the interests of their boss or employer against doing what is dictated by principles of morality or professional responsibility.(3) Nine out of ten -- or more likely, ninety-nine out of a hundred -- workers choose the safer and easier course, holding their tongue when faced with such a dilemma. Remembering where their bread and butter comes from, most simply persuade themselves that there is no dilemma.
    Those who pursue the principled course start out naively believing that they will be appreciated for "doing the right thing." But once they encounter a hostile reaction from their supervisor or co-workers, most potential whistleblowers back down, minimizing the risk to themselves. Those who continue, convince themselves that once "upper management" (or the administrator, or some other figure of authority) learns of the situation, the problem will be addressed and they will be vindicated.
    The true whistleblower is the one who, even after coming to understand that upper management is not going to save him or her, remains unrepentant and even defiant. What follows inevitably is harassment, persecution, and vilification. This is not the path for a malingerer.
    Americans pay billions of dollars every year to safeguard the public health and safety through police protection, inspection of food and other products, and enforcement of laws and regulations in other areas ranging from the environment to transportation and the workplace. Yet one whistleblower can frequently accomplish more good than a roomful of bureaucrats. Here are some examples:
 

Beverly Paigen and Love Canal(4)(5)

    In Niagara Falls, New York in 1978, controversy was raging over the Love Canal. Countless tons of toxic, chemical wastes had been dumped years before in the abandoned canal by Hooker Chemical Company. A school had been built alongside the dump site and housing developments had been built around it. Chemicals from the canal had leached into lawns, playgrounds, and even into the basements of houses in the neighborhood which was, in the words of New York State's commissioner of health, "a great and imminent peril to the general public residing at or near the site." Frightened citizens were demanding government action while the government did what governments usually do --- procrastinated--- asking for more time and more studies. An atmosphere of mutual contempt and distrust had grown up between the homeowners and the state government.
    Into this scene stepped Dr. Beverly Paigen, a biologist, geneticist, and cancer research scientist at the Roswell Park Memorial Institute, a world famous research hospital in Buffalo and part of the New York State Department of Health (DOH). The health concerns of the Love Canal citizens were the very subject of her research interests, which were to study family patterns of genetic reaction to chemicals and to develop easy, efficient methods of assessing health hazards from environmental chemical exposure.
    The Love Canal homeowners, for their part, needed scientific expertise to give them credibility in pursuing their case with the government's scientific bureaucracy. As a result, a close working relationship developed between the homeowners and Dr. Paigen. She became their scientific advisor and consultant and the homeowners in turn became the source of data, as well as data gatherers, for her research. This, of course, did not sit well with government authorities, who were trying to keep the lid on all scientific data and analysis.
    Soon, Dr. Paigen found herself being subjected to petty harassments. Since she was a senior scientist engaged in basic research at the institute, she alone decided the areas of her research and the government could not call her off, but they could make her life miserable in many other ways including a state tax audit and the denial of a research grant which she would have normally received. Nevertheless, she persisted in her mission and freely expressed her findings and expert opinion to the health bureaucracy as well as to the public, the press, the governor, and the U.S. Congress.
    Eventually, the state followed Dr. Paigen's recommendations and relocated all the Love Canal residents. Moreover, although the state health bureaucracy had criticized her research, they ended up adopting its. results as their own. Her larger contributions, however, were to focus national attention on the health hazards of toxic waste, and to join the chorus of public advocates responsible for the passage of federal "Superfund" legislation. Along with the persistent citizens of Love Canal, we owe her our deepest gratitude.
 

Adrian Gross and Pesticide Safety(6)

    Dr. Adrian Gross was a veterinary pathologist and a senior science advisor with the EPA pesticides office. Both at EPA and at his previous position with the U.S. Food and Drug Administration he frequently spoke out against drug and pesticide manufacturers when he felt their products were unsafe, and their health research shoddy.
    Dr. Gross ran afoul of his own agency in 1982 when he wrote a memo accusing his superiors of illegally aiding two major chemical companies in their efforts to register the pesticide permethrin, which he and other EPA investigators had found to cause cancer. A week later he was transferred to an obscure division where he no longer had access to the agency's health and safety files. Moreover, his colleagues were instructed not to speak with him.
    Despite the petty harassments he suffered throughout his government career, Dr. Gross continued his life-saving work. Up until his death in 1992, he also frequently appeared as an expert witness in product-liability lawsuits against chemical companies and he continued to speak out whenever he felt the government was needlessly putting the public health at risk, and encouraged his colleagues to do likewise.
    Among the chemicals he had blown the whistle on at one time or another are the drugs: DES, flagyl, aldactone, aldactazide, bendectin, enovid, ovulen, aspartame (artificial sweetener) and several pesticides -- aldrin, dieldrin, ethylene dibromide, malathion, and malaoxon. His example of courage and commitment continues to inspire other scientists to, in Gandhi's words, "speak truth to power."
 

Charles Hamel and the Trans Alaska Pipeline Whistleblowers(7)(8)(9)

    The Alyeska Pipeline Service is the company that operates the Trans Alaska Pipeline. It is owned by a consortium of oil companies including Exxon, British Petroleum and Atlantic Richfield. In the early 1980's, Charles Hamel, an oil broker, got involved in a business dispute with Alyeska. Hamel felt he had been cheated and as a result began leaking information about Alyeska's environmental wrongdoing.
    Sympathetic workers at Alyeska, who were disturbed by their employer's harmful environmental practices but were fearful of their jobs, began passing incriminating internal Alyeska documents to Hamel who, in turn, passed them on to regulators and Congress. Eventually Hamel accumulated a sizable network of fifteen whistleblowers within Alyeska and its member companies who had access to information which was not available to government inspectors and environmental enforcement officials.
    This network provided Hamel with information about violations of the Clean Water Act by Exxon and British Petroleum that resulted in citations by EPA. They revealed air pollution violations at the Valdez terminal. They supplied Hamel with documents which showed that the system for detecting leaks in the Trans Alaska Pipeline was faulty, that the pipeline was severely corroded, and that neither federal nor state regulators were adequately monitoring its operations. This material was used in a report by the U.S. General Accounting Office. Hamel also exposed oil discoveries which industry was trying to keep secret in order to convince Congress of the need to drill in the Alaska National Wildlife Refuge.
    The network's revelations cost the oil companies millions of dollars in fines and more millions to correct the environmental problems. Hamel appeared frequently on television and in Congressional hearings and his charges were reported in the press all over the world.
    In 1990, in an effort to stop the leaks, Alyeska hired the Wackenhut security agency to spy on Hamel. Wackenhut set up a bogus environmental organization called Ecolit which offered to help Hamel pursue litigation against the oil industry, but the real purpose was to find out who was leaking the documents. Wackenhut agents watched Hamel's home, picked through his trash, used sophisticated electronic eavesdropping devices, and obtained his credit, banking and telephone records, as well as personal information about his family. They even hired women to entice Hamel into revealing his sources.
    However, with information supplied by disgusted Wackenhut agents at great personal risk, Hamel sued Alyeska, Wackenhut and Exxon for invasion-of-privacy and in December of 1993, they settled with Charles Hamel for an undisclosed amount, which is reported to be in the millions. While Charles Hamel may not have been primarily motivated by a moral desire to prevent Alyeska's defilement of the Alaskan environment, his anonymous sources clearly were so motivated and Hamel earned their and our gratitude by protecting those sources from Alyeska's wrath at great risk to himself.
 

Greater Legal Protections Needed

    Congress has recognized the unique position of workers to monitor and report violations of environmental law, noting in its conference report on the 1977 Clean Air Act: "...the best source of information about what a company is actually doing or not doing is often its own employees...."(10)
    The examples above demonstrate that whistleblowers deserve to be revered and encouraged, yet whistleblowers more often encounter hostility than support. Their only recourse may lie in "whistleblower protection" laws, which offer little more than the possibility of hanging on to one's job, usually in a diminished role while subjected to ongoing harassment or abuse.
    In the environmental arena, Congress has included nearly identical whistleblower protection provisions in six laws: the Clean Air Act; the Safe Drinking Water Act; the Solid Waste Disposal Act; the Water Pollution Control Act; the Toxic Substances Control Act; and the Comprehensive Environmental Responses, Compensation, and Liability Act (CERCLA or Superfund). The provisions in these six acts were crafted to encourage and protect both government and private industry employees, who report violations of environmental, health and safety regulations. Congress also mandated that employees who blow the whistle should be protected from retaliation, harassment, intimidation, and other forms of discrimination by their employers.
    The laws were intended to cover Americans from all walks of life. Among those covered have been a painter who cooperated with an investigation into toxic dumping,(11) a teacher who complained about asbestos in a school house,(12) an engineer who filed reports regarding a shipyard's noncompliance with hazardous waste regulations,(13) and an employee who told a newspaper reporter about the discharge of sludge into the Cedar Rapids.(14)
 

Serious Defects in the Laws

    However, while the intent of these six laws was good, there are several serious defects which almost undo the good intentions. The laws' two most significant defects are the extremely short 30-day statute of limitations and the fact that almost nobody is aware that they exist. The National Whistleblower Center summarized the problem in its 1991 petition to the EPA urging amendment of the provisions:" Confusion about where to file a complaint as well as ignorance of the 30-day statute of limitations has resulted in the dismissal of numerous whistleblower complaints filed under the six acts, and has defeated congressional purpose behind the acts."
    For example, in 1990 there were only eight federal environmental whistleblower complaints docketed for hearing under these six acts in the entire United States. Many cases are dismissed for failing to meet the 30-day limit because the complainant was unaware that the laws existed, let alone the strict filing requirements.
    Whistleblowers generally do not even learn about the existence of relevant whistleblower protection laws until the deadline has passed. The "clock" starts the day an employee is threatened with any adverse action for reporting violations to authorities. In most cases that go forward, complainants deplete their own savings in legal battles, while out of a job and blacklisted.
    In a 1981 whistleblower case under the Toxic Substances Control Act, the U.S. Secretary of Labor attempted to broadly construe the 30-day filing period in order to allow some employees who had good cause for missing the filing period to still be protected. However, the U.S. Court of Appeals rejected this reasoning and dismissed the case, finding that the 30-day period must be strictly construed. Since that time, all other federal courts which have reviewed this issue, as well as the Department of Labor, have followed that precedent and adopted the strict interpretation.
    The second major problem is the almost universal ignorance within the workforce and among environmental organizations, labor unions and even the legal community itself, regarding the extent of whistleblower protection available under the six acts. Even knowledgeable EPA whistleblowers who were union officials or were attorneys or investigators in the office of the Inspector General were unaware of these provisions. Likewise, awareness of state whistleblower protection laws, which often have longer statutes of limitations and other benefits unavailable under federal law, is all but nonexistent.
    Other problems with the six federal acts are: the ambiguity in the definition of protected activities which has given rise to a split in the U.S. Court of Appeals; the fact that the pesticide laws administered by EPA do not have any whistleblower protection provision; and the long delays encountered in cases brought before the Secretary of Labor.
    This last problem is especially galling. For example, Joseph Guttman, whose position as head of a laboratory at a major water treatment plant in New Jersey had been eliminated, filed a whistleblower complaint with the U.S. Department of Labor in 1985. The Secretary of Labor did not issue a final and enforceable order requiring Mr. Guttman's reinstatement until seven years later in March of 1992.(15) The infamous delays in the issuance of final orders by the Secretary of Labor are unfair to both complainant and employer, typically taking three to six years to render a final order upholding a whistleblower claim. Justice delayed is still justice denied.
 

Proposals to Strengthen whistleblower Protections

    A similar situation previously existed in the whistleblower provisions of the laws administered by the Nuclear Regulatory Commission. In October of 1992, Congress remedied these problems for nuclear whistleblowers with amendments to the Energy Reorganization Act. This law enlarged the statute of limitations from 30 to 180 days and required employers to post notice of the remedies available to whistleblowers in the workplace. To speed up justice, the amended Energy Reorganization Act provides that, if an employee wins before an administrative law judge, he or she is entitled to immediate reinstatement pending the review of the judge's decision by the Secretary of Labor and the Court of Appeals. As a result, many more serious flaws in nuclear power plants may now be brought to light. Already, seven times more employees in the nuclear industry report wrongful activity than workers reporting under the six environmental laws.
    Nevertheless, Congress has not yet seen fit to make the same changes to the six environmental laws. The following simple and technical modifications of these acts would make them more effective and consistent with similar employee protection provisions contained in other federal legislation.

  • Extend the statute of limitations to 180 days.

  •  
  • Require posting in the workplace of the laws and information about where to file a complaint.

  •  
  • Provide a uniform definition of "Protected Activityt' under the six acts in order to promote consistency with other laws.

  •  
  • Provide coverage for all employees who work on projects regulated or concerning the responsibilities of the EPA.

  •  
  • Eliminate administrative delays in the resolution of complaints.
  •     The National Whistleblower Center has also advocated that these changes be included in the legislation currently being considered to elevate the EPA to cabinet-level status, as a new Department of the Environment.
        Either way, correcting shortcomings in the laws protecting environmental whistleblowers and their enforcement is not merely a matter of compassion or individual rights. It is also vital to the public interest. These courageous and competent souls represent precisely the kind of integrity and leadership needed in top management and research positions in government and industry. Whistleblowers are usually creative and efficient achievement- oriented workers -- the kind who are concerned that things be done right. In addition, they have the moral fiber to stand up to corruption and attempts to cut corners or cover up mistakes and dangers to the public.
        Whenever a whistleblower is removed, he or she is replaced by someone willing to tolerate such corruption and abuse in order to get ahead. This serves not the public interest, but only that of corrupt or incompetent officials.
    It is not so much the whistleblower who needs protection, but the public that needs the protection or the whistleblower.
     

    About the Authors

    William Sanjour

        Mr. William Sanjour is a long-time employee of the U.S. Environmental Protection Agency
    (EPA) and an active whistleblower since 1979. He has been an Environmental Research
    Foundation associate since 1991.
        In the late seventies, Sanjour fought from within the EPA to make the Resource Conservation and Recovery Act work in the true spirit of its regulations, some of which he drafted. The Agency responded by transferring him to a position with no duties. He successfully fought that transfer and in 1980 was made head of the Hazardous Waste Implementation Branch.
        He continued to expose Agency abuse, testifying against EPA policy in Congressional hearings and actively helping grass- roots environmental groups. Sanjour's reward for years of dedicated environmental service has been harassment and a succession of superficial job assignments. Since 1989, he has had no substantive assignments.
     

    Stephen M. Kohn

        Mr. Stephen M. Kohn is an attorney in Washington, D.C. specializing in whistleblower law and the chairperson of the National Whistle- blower Center. He is the author of numerous books and articles including The Whistleblower Litigation Handbook, The Lawyers Guide to the Rights and Responsibilities of Employee Whistleblowers and Protecting Environmental and Nuclear Whistleblowers: A Litigation Manual.
        The National Whistleblower Center is a nonprofit organization established to provide whistleblowers with legal representation that they could not obtain elsewhere. The Center also educates the public to the existence of legal protections and provides training materials and workshops on how to assist nuclear and environmental whistleblowers.
        The National Whistleblower Center is located at 517 Florida Avenue, N.W., Washington, DC 20001-1850; telephone: (202) 667-7515.
     
     

    ENVIRONMENTAL RESEARCH FOUNDATION

        Environmental Research Foundation (ERF) provides technical assistance to grass-roots environmental groups working to strengthen democracy at the local level. ERF's projects are designed to sustain a democratic movement of grass-roots groups, to curtail abuses of toxic and radioactive materials and to advocate reduction of the use of hazardous materials. Our weekly newsletter, Rachel's Hazardous Waste News and our on-line computer database RACHEL (Remote Access Chemical Hazards Electronic Library) provide timely information to citizens. RACHEL can be reached by calling (410) 263-8903. Modem settings 8-N-1. RACHEL is free.
        To receive a free four-issue trial subscription to Rachel's Hazardous Waste News, contact ERF (P.O. Box 5036, Annapolis, MD 21403-7036; phone: 410-263-1584; fax: 410-263-8944; Econet: erf; Internet: rf@igc.apc.org).
     
     

    END NOTES

    1. William Sanjour is a long time employee of the U.S. Environmental Protection Agency and has frequently blown the whistle on corrupt practices within that agency.
    2. Stephen M. Kohn is an attorney in Washington, D.C. specializing in whistleblower law and is chairperson of the National Whistleblower Center. He is the author of numerous books and articles including The Whistleblower Litigation Handbook and The Labor Lawyer's Guide to the Rights and Responsibilities of Employee Whistleblowers.
    3. For example, see Phillip H. Jos, Mark E. Tompkins and Steven W. Rays, "In Praise of
    Difficult People: A Portrait of the Committed Whistleblower," Pubic Administration Review
    (November/December 1989), pg. 552.
    4. Lois Marie Gibbs as told to Murray Levine, Love Canal, My Story (Albany, N.Y.: State University of New York Press, 1982).
    5. Adeline Gordon Levine, Love Canal: Science, Politics, and People (Lexington, Mass.: D.C. Heath and Company, 1982).
    6. Keith Schneider, "Hard Times, Government scientists fall victim to the administration's policy to silence debate," The Amicus Journal (Fall 1982), pg. 22.
    7. Charles McCoy and Richard B. Schmitt, "Alyeska Settles Suit by a Whistle-Blower," The Wall Street Journal (December 21, 1993), pg. B8.
    8. Allanna Sullivan, "Arctic Dogfight, Battle Over Oil Hunt In a Wildlife Refuge In Alaska Gets Nasty," The Wall Street Journal (November 1, 1991), pg. Al.
    9. "Interview With Oil Industry Critic Charles Hamel," Corporate Crime Reporter (September
    30, 1991), pg. 17.
    10. Legislative history of Water Pollution Control Act, cited in conference report of Clean Air Act, US. Congressional and Administration News (1977): pgs. 1077, 1404.
    11. Haney v. North American Car Corporation, Case No. 81-SWDAA-1, slip opinion of
    Administrative Law Judge (December 15, 1981), adopted by Secretary of Labor (June 30,  1982).
    12. School District of Allentown v. Marshall, 657 F.2d [vol.657 of the Federal Reporter, 2nd series], pg. 16 (3rd Circuit 1981).
    13. Pogue v. U.S. Department of Labor, 940 F.2d [vol.940 of the Federal Reporter, 2nd series], pg. 1287 (9th Circuit 1991).
    14. Wedderspoon v. Milligan Case No. 80-WPCAA-1, slip opinion of Administrative Law Judge (July 11, 1980), adopted by Secretary of Labor (July 28,1980).
    15. See, Guttman V. Passaic Valley Sewerage, slip opinion of Secretary of Labor (March 13,  1992).
     
     

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