=======================Electronic Edition========================
RACHEL’S ENVIRONMENT & HEALTH WEEKLY #484
March 7, 1996
News and resources for environmental justice.
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Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@rachel.clark.net
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CITIZENS COULD IMPROVE FEEBLE ENFORCEMENT
AT U.S. ENVIRONMENTAL PROTECTION AGENCY
by William Sanjour [1]
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.
                                                                    
===============
[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.)