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#484 - Citizens Could Improve Feeble Enforcement at U.S. Environmental Protection Agency, 06-Mar-1996

So-called "conservatives" in this Congress have targeted the U.S.
Environmental Protection Agency (EPA) for the largest percentage cuts
of any federal agency (other than those they want to eliminate
entirely). And even though they have backed down a bit in response to
polls showing public support for environmental legislation, they still
are urging huge cuts --up to 50% --in the one area they seem to hate
the most, which is enforcement. Ironically, grass-roots
environmentalists also have a low opinion of EPA's enforcement record
but for different reasons.[2] When Congress savages a program that is
already viewed as dismal, communities can look forward to little or no
environmental enforcement unless something is done to replace or
augment the agency's feeble enforcement program.

The best source of information on corporate lawbreaking is often the
company's own employees. When it comes to reporting violations of
environmental laws these so-called "whistleblowers" offer many
advantages over hired enforcement officials:

** They know what's really going on and where the skeletons are buried.

** They are not easily snowed by management the way government
officials often are.

** Unlike hired enforcement agents, they and their families live and
work exposed to the pollution produced when environmental laws are
violated.

** Workers can witness violations at night and on weekends when hired
enforcement officials are not normally on the job.

** Whistleblowers cost the taxpayers nothing.

For these reasons, Congress 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 [P.L. 95-95]: "The best
source of information about what a company is actually doing or not
doing is often its own employees...."[3]

Of course workers do not usually come forward when they witness
corporate violations because they fear losing their jobs or being
harassed and persecuted by management and even by their co-workers.

To stimulate whistleblowing by employees, Congress has included nearly
identical whistleblower protection provisions in almost all major
environmental laws, including 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 Response, Compensation, and Liability Act (Superfund).

The whistleblower 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. Harassed whistleblowers can (and
do) file suits with the Department of Labor to end harassment, restore
their jobs, and be reimbursed for legal fees and even collect damages.

The main reason more whistleblowers have not come forward is because
the vast majority of people are unaware of the protection available to
them. EPA has made no attempt to implement the whistleblower protection
provisions of the statutes. As a result, corporate employees and
corporate management are ignorant of these provisions, and so are EPA
and state officials. 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.

EPA's responsibilities under these acts mirror those of other agencies
which rely upon the free flow of information between employee-
whistleblowers and a regulatory agency to protect the public interest.
For example, the U.S. Nuclear Regulatory Commission (NRC) has nearly
identical responsibilities for protecting employee-whistleblowers under
the Energy Reorganization Act as does EPA under the Solid Waste
Disposal Act. In July, 1993 the NRC established a review team to
"reassess the NRC's program for protecting allegers [i.e.,
whistleblowers] against retaliation." The review team issued its
comprehensive report in January, 1994.[4] The NRC has undertaken a
broad program to implement Congressional mandates and requirements
concerning the protection of whistleblowers. Furthermore, the NRC has
undertaken various administrative actions to regulate the processing of
whistleblowers' allegations.

By contrast, in the environmental area, there is the almost universal
ignorance within the federal and state EPAs, the workforce and even
among environmental organizations, labor unions and the legal community
itself, regarding the whistleblower protection provisions available
under the six acts. Even investigators in the EPA's Office of the
Inspector General (which is charged with protecting whistleblowers),
are unaware of these provisions. Employee-whistleblowers who call the
state or federal EPA are often shunted around to different offices
because nobody has been trained in what to do with them. They are
usually not informed of their right of anonymity or their right to be
protected from harassment or firing by their employer BECAUSE THE EPA
PERSON THEY ARE TALKING TO IS UNAWARE OF THESE RIGHTS. Unlike nuclear
facilities regulated by the NRC, there is no notice on employee
bulletin boards of facilities regulated by EPA outlining whistleblower
rights under the law and how to obtain them.

A review of the NRC report reveals the kinds of actions an
administrative agency should take to implement employee-whistleblower
procedures and regulations:

** Allegations of safety concerns by employee-whistleblowers are
reviewed by technical staff and an "Allegation Review Board" pursuant
to a Management Directive. EPA has no such procedure. EPA has not
established any guidelines for regional offices or headquarters to use
in reviewing allegations by employee-whistleblowers. Furthermore, there
is no oversight or monitoring of state actions taken in response to
employee concerns.

The NRC has published formal regulations on employee-whistleblower
protection.[5] EPA has failed to formulate any such regulations.

The NRC regulations require that employers provide notice to their
employees of "their right to raise concerns about potential violations
or safety concerns," how to raise such a concern with the U.S.
government and "how to file a complaint" with the U.S. Department of
Labor if the employee believes that he or she was discriminated against
for raising a safety concern.[6] EPA has taken no action to ensure that
employees know how to file a safety complaint with EPA. Likewise, the
agency has taken no steps to ensure that employees are aware of the law
forbidding discrimination against them for raising a concern with EPA.

The NRC takes enforcement action against employers who attempt to
interfere with the free flow of information to the government from
employee-whistleblowers.[7] EPA has no regulations providing for such
enforcement action.

The NRC has taken action against employment contracts or settlement
agreements which prohibit the free flow of information between
employees and the government.[8] EPA has not taken any action regarding
the problems related to restrictive contracts in the area of
environmental enforcement.

What Can Be Done?

The NRC did not take action out of a sense of duty or public spirit. It
took action only after Congress investigated NRC's egregious handling
of health and safety complaints by nuclear power plant workers. My
observation is that EPA is equally shabby in its treatment of
whistleblowers. But since environmental pollution does not arouse the
same fear in the public as nuclear radiation does, Congress has never
shown the same interest in forcing EPA to implement its whistleblower
protection provisions as it did with the NRC. And this Congress will be
even less interested than previous ones.

Therefore it is up to the environmental movement, particularly the
people who have the most to lose from the lack of environmental
enforcement, i.e. community grass-roots groups, to pressure EPA to
implement these laws. Fortunately citizens are aided by the fact that
this is a presidential election year and, at least until Novem-ber 5th,
President Clinton and EPA Administrator Carol Browner are courting the
environmental movement in order to contrast themselves with the anti-
environmental Congress.

The EPA Administrator has the authority to require notices to be posted
in all EPA-regulated workplaces:

** encouraging workers to report violations of environmental laws;

** informing them whom to notify;

** advising them of their right of anonymity and their right to be
protected from retaliation; and

** advising them of where and when they should seek redress if they are
retaliated against.

This and many of the other provisions implemented by the NRC could be
implemented by EPA without any act of Congress and without any
additional funding. Just as the NRC has learned, EPA can, for zero
cost, get better enforcement than it is losing by Congressional budget
cuts. But EPA is not going to do this voluntarily. Like the NRC, EPA
would need to feel pressure from citizens before it would make its
enforcement more efficient and effective by encouraging whistleblowers.

by William Sanjour[1]

=====

[1] William Sanjour, an associate of Environmental Research Foundation,
is a long time employee of U.S. Environmental Protection Agency where
he has often blown the whistle on corrupt practices within the agency.
With attorney Stephen M. Kohn [National Whistleblower Center,
Washington, DC; phone: (202) 234-4663], he co-authored ENVIRONMENTAL
WHISTLEBLOWERS: AN ENDANGERED SPECIES (Annapolis, Md.: Environmental
Research Foundation, February, 1994), providing suggestions for
strengthening the nation's whistle blower protections. His other
published work includes the 3-part series, ANNALS OF THE EPA (PART 1.
WHO POLICES THE POLICEMAN?, July, 1991; PART 2. WHY EPA IS LIKE IT IS
AND WHAT CAN BE DONE ABOUT IT, February 1992; and PART 3. AN ODOR LIKE
A SKUNK DIPPED IN CREOSOTE AND BURNED: EPA'S REGULATION OF COMMERCIAL
HAZARDOUS WASTE INCINERATORS, January, 1993), all published by
Environmental Research Foundation, Annapolis, Md. 21403; phone: (410)
263-1584.

[2] Citizens know from experience that EPA's record of enforcement is
poor and getting worse. See, for example, William Sanjour's
publication, AN ODOR LIKE A SKUNK DIPPED IN CREOSOTE AND BURNED: EPA'S
REGULATION OF COMMERCIAL HAZARDOUS WASTE INCINERATORS cited above in
note 1. The newsletter INSIDE EPA November 3, 1995, pg. 16, reported
that the number of enforcement actions taken by EPA in 1995 was 208,
compared to 428 actions taken in 1994.

[3] UNITED STATES CODE U.S. CONGRESSIONAL AND ADMINISTRATION NEWS (St.
Paul, Minn.: West Publishing, 1977) pg. 1404.

[4] James Lieberman and others, REPORT OF THE REVIEW TEAM FOR
REASSESSMENT OF THE NRC'S PROGRAM FOR PROTECTING ALLEGERS AGAINST
RETALIATION (Washington, D.C.: U.S. Nuclear Regulatory Commission,
January 7, 1994).

[5] See, for example, the following sections of the CODE OF FEDERAL
REGULATIONS (CFR): 10 CFR 30.7, 40.7, 50.7, 60.9, 61.9, 70.7 and 72.10.

[6] Lieberman, cited above in note 4, pg. I.C-10.

[7] Lieberman, cited above in note 4, pgs. I.C-10, I.C-11.)

[8] Lieberman, cited above in note 4, pg. App. B-5-6.)

Descriptor terms: epa; william sanjour; whistle blowing; whistle
blowers; enforcement; violations; clean air act; nuclear regulatory
commission; clean water act; sdwa; tsca; cercla; superfund; lawsuits;
dol; solid waste disposal act; swda;