NATIONAL WHISTLEBLOWER CENTER
3238 P. STREET, N.W.
WASHINGTON, D.C. 20007-2756
TELEPHONE (202) 342-1902 www.whistleblowers.org
TELECOPIER (202) 342-6984 EMAIL: firstname.lastname@example.org
November 4, 1999
Hon. F. James Sensenbrenner, Jr.
ChairmanCommittee on Science
U.S. House of Representatives
Washington, D.C. 20515
Hon. Ralph M. Hall
Ranking Minority Member
Committee on Science
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Sensenbrenner and Congressman Hall:
On behalf of the National Whistleblower Center ("Center") and the individuals and organizations listed below, I want to thank you for planning hearings that concern whistleblowing at the U.S. Environmental Protection Agency ("EPA"). As a current 27 year veteran of EPA, and as an employee who has been active in whistleblower-related activities since the late 1970's, I have witnessed the tremendous problems caused by EPA's institutional failure to protect whistleblowers or take action to ensure that the "employee protection" provisions of the Safe Drinking Water Act, the Clean Air Act, the Solid Waste Disposal Act, the Superfund law, the Clean Water Act and the Toxic Substances Control Act are followed. The EPA cannot properly protect the environment unless all persons covered by these laws, including contractors and employees of the EPA, are fully protected when expressing their concerns about potential violations of law, poor scientific practices, regulatory deficiencies and other problems that could negatively impact public health and the environment.
The protection of environmental whistleblowers at EPA must begin within the highest levels of the administration. Unfortunately, based both on my personal experience, the experiences documented by the National Whistleblower Center and the undisputed public record, the EPA has institutionally, over a significant period of time, violated the environmental whistleblower statutes at every level. The U.S. Department of Labor has issued numerous findings documenting these violations, including the wrongful discharge, badmouthing and harassment of senior scientists merely for raising scientific issues that may be in contrast to the regulatory positions taken by the agency. Persons involved in these violations have included assistant administrators, officials within the Office of General Counsel and the Office of the Inspector General, and heads of other important offices. The highest ranking officers of the EPA have had knowledge of these violations for years and they have repeatedly failed to discipline officials who have illegally harassed whistleblowers or take any action to prevent further violations. This has sent a chilling effect throughout the agency. A review of the published decisions of the U.S. Department of Labor demonstrates that the EPA itself is the single largest violator of the environmental whistleblower laws in the United States.
It is inexcusable that the EPA, instead of providing an example for open scientific discussion, has continuously violated key environmental legislation. I have written to EPA management seeking internal reform, but without success. Consequently, I urge this Committee, in a bipartisan manner, to take the strongest possible steps to mandate that EPA stop violating the whistleblower laws and institute affirmative measures ensuring that whistleblower laws are respected.
Most of the steps that EPA should take in order to reverse the cycle of retaliation are very simple. At a minimum, we urge that this Committee insist that the agency undertake the following steps to protect whistleblowers:
1. POSTING NOTICE OF THE LAW
The EPA has failed to inform employees of their legal rights under the environmental laws with whistleblower provisions, and has taken no action to protect employees who have engaged in conduct protected under these laws. As a result, most EPA employees and managers are unaware of the statutory remedies available to whistleblowers. As a first step, managers and those they supervise should be made aware of their rights to "blow the whistle" should they believe public health or the environment is put at risk by the actions of their employer. Therefore, there should a mandatory posting requirement for all employers covered under the six environmental statutes with whistleblower provisions cited earlier.
2. MEMORANDUM OF UNDERSTANDING
The indifference, if not outright hostility, which EPA officials have demonstrated toward employee protection provisions is perhaps most noticeable in the failure to execute a Memorandum of Understanding with the Department of Labor (the agency that adjudicates labor-related aspects of whistleblower cases). Consequently, EPA has yet to develop any mechanism whereby appropriate officials in the agency are notified of concerns its employees have raised with the Department of Labor ("DOL"). The U.S. Nuclear Regulatory Commission ("NRC"), concerned with parts of the Atomic Energy Act modeled after whistleblower provisions in the Clean Air Act, implemented such an instrument over fifteen years ago.
3. TRAINING WITHIN THE EPA
As noted above, the EPA has failed to properly inform its own employees of their legal rights under environmental whistleblower laws. As a result, most persons in a position to advise employees of their rights, or prevent illegal retaliation, are unaware of these legal protections. Depositions conducted in a number of high-profile EPA whistleblower cases demonstrated that employees at all levels within the EPA - from assistant administrators to agency ethics officials to criminal investigators for the Inspector General's office, are unfamiliar with whistleblower provisions of environmental laws. Even the Administrator's former Chief of Staff was not aware of protections offered EPA whistleblowers, according to a 1996 deposition. EPA, therefore, should institute an agency-wide training program regarding legal protections afforded to whistleblowers under environmental statutes.
4. REFORM WITHIN THE OFFICE OF INSPECTOR GENERAL
The EPA Office of Inspector General ("OIG") has responsibility for monitoring EPA employees with regard to obeying, the law. Not only has the OIG failed to recommend discipline for any of the managers found guilty of illegally retaliating against whistleblowers, it has targeted whistleblowers with retaliatory investigations and engaged in coverups of illegal actions against whistleblowers. In one case that gained national publicity, the OIG conducted a four-year investigation of an EPA Senior Science Advisor for publicly disagreeing with the agency's position. When a DOL case was filed for determining whether EPA's conduct in this matter violated whistleblower provisions of environmental laws, the OIG - in violation of federal laws and its own regulations concerning the Freedom of Information Act ("FOIA") documents - shredded hundreds of pages of relevant (and requested) documentation. Although the EPA stipulated that the shredding occurred in violation of the FOIA, no action was taken against officials who approved or conducted the shredding. Moreover, the special agent who shredded the material was soon promoted to a supervisory position.1The Inspector General has also issued agency wide warnings which misinformed employees of their rights. Because of their past offenses and neglect of duty in this area, the OIG office should be restructured in such a manner as to ensure that whistleblowers are no longer targeted by retaliatory investigations. This could be done by establishing an independent office within the EPA to properly review whistleblower allegations of retaliation.
5. FORMULATION OF AN APPROPRIATE SAFETY NET
Congress, with overwhelming bipartisan majorities, passed seven environmental and nuclear safety laws. Six of the laws cover substantive areas regulated by the EPA and one, the employee protection provision of the Atomic Energy Act, covers substantive areas regulated by the NRC. The NRC is to be commended for instituting a broad program aimed at providing an appropriate administrative safety net for protecting whistleblowers. The EPA, which has hitherto taken no action to enforce or implement these legally guaranteed protections, should be required to put forth a similar level of effort.
National Advisory Board
National Whistleblower Center
SUBMITTED ON BEHALF OF THE NATIONAL WHISTLEBLOWER CENTER AND ENDORSED BY THE FOLLOWING ORGANIZATIONS AND PERSONS:
Lois Marie Gibbs
CENTER FOR HEALTH, ENVIRONMENT & JUSTICE
Beverly Wright, Ph D
DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE
Peter Montague, Ph D
ENVIRONMENTAL RESEARCH FOUNDATION
TRI-STATE ENVIRONMENTAL COUNCIL
MOTHERS ORGANIZED TO STOP ENVIRONMENTAL SINS
GOOD NEIGHBOR PROJECT
David Ozonoff, MD, MPH*
Professor and Chair, Dept. of Environmental HealthBoston University School of Public Health
Linda Price King
ENVIRONMENTAL HEALTH NETWORK
SIERRA CLUB OF NEW HAMPSHIRE
Caroline Snyder, Ph D
CITIZENS FOR A FUTURE NEW HAMPSHIRE
MONTANA COALITION FOR HEALTH, ENVIRONMENTAL & ECONOMIC RIGHTS
WASHINGTON TOXICS COALITION
Charlotte Hartman & James Bynum
NATIONAL SLUDGE ALLIANCE
Prof. Paul Connett, Ph D*
Professor of Chemistry,St. Lawrence University
Charles and Helane Shields
Rebecca Leighton Katers
CLEAN WATER ACTION COUNCIL OF N.E. WISCONSIN
FRIENDS OF FORT BRAGG
NORTHEAST ORGANIC FARMING ASSOCIATION OF NEW HAMPSHIRE
NEIGHBORS PROTECTING OUR ENVIRONMENT
NORTH CAROLINA WASTE AWARENESS AND REDUCTION NETWORK
VERMONT PUBLIC INTEREST RESEARCH GROUP
SCIENCE AND ENVIRONMENTAL HEALTH NETWORK
AGRICULTURAL RESOURCES CENTER
CHATTANOOGA RIVER WATERSHED COALITION
PURE WATER COALITION
NEW HAMPSHIRE COALITION FOR ALTERNATIVES TO PESTICIDES
NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES
*Affiliation for identification purposes only.
1. The scientist in this case eventually won his whistleblower claim and was ordered reinstated, with back pay and damages, by Secretary of Labor Robert Reich.
2. In addition to serving, without pay, on the National Whistleblower Center's Advisory Board, William Sanjour has worked in various EPA offices for 27 years. He is currently a policy analyst in the Technology Innovation Office. Before blowing the whistle, Mr. Sanjour was a branch chief in the Office of Solid Waste with responsibilities for drafting hazardous waste regulations. He was the victorious plaintiff in the landmark First Amendment lawsuit Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)(en banc), on remand, 7 F. Supp.2d 14 (D.D.C. 1998), in which he obtained a nation-wide injunction against the EPA for issuing an "ethics" opinion which violated the constitutional rights of EPA employee-whistleblowers. His whistleblowing activities are documented on the Web at http://pwp.lincs.net/sanjour. In compliance with EPA ethics requirements, the opinions expressed in this letter do not reflect the position of the EPA.