Whistleblowers : March-April 1 9 9 6 - February 1996
By Carolyn Raffensperger
Science is a process, not a given outcome. In the uneasy alliance between science and policy, politics can demand an outcome which undermines scientific integrity. Politics currently requires that mad cow disease not be found in the United States, that the health effects of dioxin be downplayed, and that particulate standards for air quality be based on outdated health studies. Any scientist worth his or her salt can tell you we have little evidence one way or the other about the prevalence of mad cow disease in the U.S. A good scientist will not base his or her assessment of dioxin on the Wall Street Journal or the New York Times. And any scientist who cares if good policy is based on good science will not allow vested interests to interfere with air standards to protect public health.
Sometimes politics can interfere with the scientific process itself. When politics demand that scientific reports are white-washed, or withheld from the public, the process is flawed. When scientists with financial interests are allowed to sit on government peer review or standard setting panels, the process cannot result in good science or good policy. When academic
scientists are denied tenure, funding or publications if they engage in multi-disciplinary, participatory research, politics has damaged the scientific process.
This edition of the Networker is a meditation on courage--scientific courage. It follows on the heels of the publication of "Our Stolen Future", the book which recounts what we do and do not know about endocrine disruptors. It also follows on the heels of the 3d Citizens Conference on Dioxin in Baton Rouge, Louisiana where almost 600 people gathered to plan the next steps in
eliminating dioxin from our bodies and the environment. The scientists who investigated dioxin and other endocrine disruptors and told the public about these chemicals have suffered unbelievable vilification. They deserve medals of courage.
In these pages you will find invitations to courage and you will read stories of scientists who acted courageously. These turn the old aphorism upside down - does good science make good policy? Sometimes. But these stories describe how politics can make good scientists when those scientists stand up and
tell the truth.
By Brian Holtzclaw
I offer this sliver of my story and some lessons which may help readers who may, someday, find themselves with a dire ethical problem which requires whistleblowing.
My saga began in 1993, when as an U.S. EPA environmental engineer, I went to work on a special assignment in Kentucky. I accepted a challenge to make a difference for two communities-at-risk overwhelmed by pollution. During the signing of my contract, I never would have believed what turned out to be true:
- My superiors, being Kentucky governor-appointed officials, would place politics and corporate interests above human life;
- My activities and requests for adequate attention on public health, enforcement, technical reports and community-right-to-know would trigger reprisals including harassment by management and termination of my contract;
- A groundswell of support would come from grassroots groups within the Environmental Justice movement; and
- I would end up filing a whistleblowing lawsuit against my employers - the U.S. EPA and the Kentucky Department of Environmental Protection - for the sake of justice.
I'd like to impart some ideas about how to defend yourself, especially if you're in the business of protecting public health/safety and the environment and you choose to blow the whistle on unethical behavior by your corporation or government agency.
The first step is to think through the predicament and ask how vital it is to the public interest. If you are responding to a moral dilemma, it may pit your principles of morality or professional responsibility against your boss or employer. It has been said that 99 workers out of a 100 choose the safe course, holding their tongue when faced with such a dilemma. Many who
pursue the principled path, upon raising the subject internally, may encounter a hostile reaction and back down. The true whistleblower isthe one who, even after coming to understand that management is not going to resolve the misconduct or "protect" him/her, remains steadfast and reveals the information necessary to protect the public.
The second step in defending yourself is to decide how to release the information, so as to best serve the public interest. To maintain your integrity in a low-risk manner, you may choose to be an anonymous whistleblower. Channeling information to other sources has the greatest advantages. One whistleblower says it best:
"Remember that whistleblowing will most likely ruin your career, so if you are young and have a good career ahead of you, and you feel you must blow the whistle, good for you - but do it anonymously." William Sanjour (EPA whistle-blower)
If the information can be traced to you, you may decide to make the commitment to be a whistleblower. Keep in mind you may be placing your career, income, personal relationships and health on the line. In our society, instead of being rewarded, all too often whistleblowers who alert others to a dangerous or illegal situation face harsh reprisals.
The third step in defending yourself is to learn the basics of laws that protect you. Congress enacted in piecemeal fashion, six environmental whistleblower protection bills to safeguard American employees who report violations or concerns of environmental, health and safety regulations. These are amendments to federal laws covering clean air, clean water, hazardous waste and substances, solid waste and toxic chemicals. The vast majority of work-places do not post these employee protection rights. You may want to contact a lawyer about your rights and the rights of the public under these laws.
In passing these laws, Congress recognized that employees are often in the very best position to know of corporate or government violations of environmental laws. To encourage employees to report health/safety concerns or violations, Congress mandated that such employees should be protected from retaliation, harassment and other forms of discrimination from their employers. It is crucially important that you record all direct or circumstantial evidence of discrimination.
The categories of employees covered under the whistleblower protection laws were intended to cover Americans from all walks of life, including private sector (e.g. industry), local, state and federal employees. As long as you are an employee with a role that is connected to the administration, implementation and enforcement of these federal laws, you are most likely
"Protected activity" is the legal description for employee conduct covered by law. Thanks to brave whistleblowers, the legal scope of protected activities has expanded to include:
- Actually reporting environmental concerns or violations directly to governmental sources;
- Threatening or stating an intention to disclose concerns or violations to the government;
- Internal complaints; and
- Providing information to the news media, a citizen environmental organization or a trade union.
Under environmental whistleblower laws, employees are required to file their complaint to the U.S. Department of Labor (DOL) within 30 days upon learning of a discrimination.
Since case resolution may last from 90 days to 4 years, you must be a spiritual warrior with endurance, resources, and a support system. One ethical resistor provides this advice:
"As a whistleblower you will experience every emotion known to mankind... Be prepared for old friends to suddenly become distant. Be prepared to change your type of job and life style. Be prepared to wait years for blind justice to prevail... You may feel alone, but you blaze the trail for others, just as others have done before you. Someday the law will have more
teeth, but until then I go to sleep at night with a clear mind, with my pride intact, and a purpose in life" - Chuck Atchison (nuclear plant whistleblower)
If the DOL rules in your favor, you may obtain reinstatement, back pay with interest, compensatory damages, damages for pain and suffering and loss of reputation, and other affirmative relief necessary to abate the violation.
Unfortunately, the availability of legal and tactical support for whistleblowers is scarce. While you might want to explore emerging new policies being drafted by various agencies, existing law can be gleaned from the references which follow this article. And most importantly, the best thing to do for moral support is to contact others who have had the courage to challenge unethical behavior in corporate and government organizations. You are not alone!
1. Stephen M. Kohn, The Whistleblower Litigation Handbook,(New York: John Wiley & Sons, 1994 supplement).
2. William Sanjour and Stephen Kohn, "Environmental Whistleblowers: An Endangered Species," Environmental Research Foundation 1994.
3. Myron Glazer and Penina Glazer, The Whistleblowers: Exposing Corruption in Government & Industry, (New York, Basic Books, Inc., 1989).
4. For general information or an attorney referral call the Attorney Referral Service at the National Whistleblower Center and Legal Defense Fund at 202-667-7515.
5. Between 1972 and 1980, Congress passed these federal laws with employee protection provisions: Water Pollution Control Act (WPCA), the Clean Air Act (CAA), the Safe Drinking Water Act (SDWA), the Solid Waste Disposal Act (SWDA), the Toxic Substances Control Act (TSCA), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Brian Holtzclaw is an environmental engineer employed by U.S. EPA. Brian and his lawyers (Kohn, Kohn and Colapinto, P.C.) settled with EPA out-of-court. Regarding his claims against the Kentucky Agency, a recommended decision from a DOL judge is expected in May, 1996 and a final decision by the Secretary of DOL in 1997. Opinions expressed in this article are his own and not his employer's. He can be reached at email@example.com
At its March Board meeting PSR (a SEHN member) passed the following resolution:
Whereas global contamination by dioxin and related compounds is a significant health risk to human and animal populations of the planet due to their persistence, bioaccumulation, high affinity for cellular receptors leading to a broad variety of toxic effects at extremely low doses - including cancer, male and female reproductive system disorders, birth defects and impaired neurological development, impaired immune function, and endocrine
disruption, in addition to liver, spleen, thymus, and skin organ toxicity;
And whereas children, infants, and fetuses are especially vulnerable to dioxin exposure and these effects;
And whereas medical waste incineration is a significant source of U.S. dioxin pollution, placing on physicians a special responsibility to work towards eliminating this source of pollution;
And whereas medical supply reuse and medical waste reduction could result in pollution prevention as well as cost, materials and energy saving;
Therefore be it resolved that PSR believes the scientific evidence for dioxin toxicity is sufficient to warrant vigorous action to prevent further generation of and exposure to dioxin;
And further that PSR supports scientific action to reduce the continued generation of dioxin from the incineration of organochlorine plastic feed stock in the medical waste stream.
By Deborah Shprentz
A critical public health issue facing the EPA Administrator this year is whether to revise air quality standards for particulates to reflect the latest scientific evidence of health effects at levels below the current standards.
Over the last five years, dozens of new epidemiological studies have been published that show an association between particulate air pollution at levels below the current health standards, and increases in respiratory problems, hospital admissions, and premature death. EPA has estimated that 70,000 premature deaths occur each year due to particulate pollution, more than die
from AIDS and breast cancer combined. The impact on longevity is significant - lives can be shortened by one to two years in the most polluted areas.
There is a growing consensus in the international scientific and medical community that current levels of air pollution, and the regulatory air quality standards, must be lowered in order to protect public health. For instance, a British Expert Panel recently recommended new daily standards for PM-10 (particulate matter less than 10 microns in diameter) at levels one-third
the U.S. standards.
EPA is currently considering revisions to the National Ambient Air Quality Standards for particulates. Public health advocates believe that EPA needs to revise its 24-hour and annual average PM-10 standards downward, and to establish new 24-hour and annual}average standards for fine particles, at levels that will protect public health with an adequate margin of safety.
However, the scientific advisors on this matter are heavily weighted towards industry. In fact, the advisory panel that reviews EPA's scientific criteria documents is chaired by Dr. George Wolff of General Motors.
The EPA public docket on this matter contains only one letter from an independent scientist supporting stronger air quality standards. Instead, the docket is stuffed with depositions from scientists that are serving as paid consultants to the mining, automobile, steel, and electric utility industries.
EPA decision makers need to hear the other side of the story particularly from scientists and health professionals committed to public health. Letters should be sent to:
The Honorable Carol M. Browner Administrator U.S. Environmental Protection Agency 401 M St. SW Washington, DC 20460
Natural Resources Defense Council
1350 New York Ave NW Suite 300
Washington, DC 20005
A libel lawsuit against Peter Montague has been dismissed from court because the plaintiff died. William R. Gaffey, a mathematician who worked for Monsanto, the chemical giant in St. Louis, Mo., had sued Montague for libel in 1992. The case was scheduled to come to trial in 1996.
In the early 1980s, Gaffey and one Judith Zack had conducted epidemiological studies of Monsanto workers who had been exposed to dioxin while manufacturing Agent Orange for use as a chemical warfare agent in Vietnam. Gaffey and Zack reported finding no evidence of cancer among workers exposed to dioxin for many years. The Veterans Administration relied in part on Gaffey's study to deny medical compensation to cancer-stricken Vietnam vets, and Monsanto successfully used Gaffey's work to defend themselves against lawsuits by Vietnam vets and by Monsanto workers.
However, a lawyer discovered, during unrelated litigation against Monsanto, that Gaffey and Zack had categorized 4 workers as "unexposed" to dioxin, whereas the exact same workers had been categorized as "exposed" to dioxin in another Monsanto study co-authored by Zack. Thus it was apparent that the data had been cooked. When an official of U.S. Environmental Protection Agency (EPA) discovered this, she sent a memo to her superiors, attaching a legal brief about the Monsanto studies, indicating that she believed there was evidence of fraud.
In Rachel's Hazardous Waste News #171, Montague reported on the legal brief, and the EPA memo, and was subsequently sued by Mr. Gaffey for $4 million in damage to his reputation. The Atlanta Constitution and the Austin (Tex.) Statesman, among other papers, also reported the allegations of fraud, but were not sued. Mr. Gaffey died unexpectedly of a heart attack in October,
1995, and a federal judge dismissed the libel case in January, 1996.
Environmental Problems Reference Page National Institute of Environmental Health Sciences (NIEHS) Center of Excellence at New York University
The National Institute of Environmental Health Sciences (NIEHS) Center of Excellence at New York University has developed an "environmental problems reference page" to provide access to department faculty members and other Internet resources in the environmental health field. A project of their Community Outreach program, the page presents a list environmental topics. Under each topic are listed the faculty members with relevant expertise; the faculty members' names link to their own webpages, which provide further information on the scholars' research interests, publications, and backgrounds.
In the last issue of The Networker we asked, "Does Ockham's Razor apply in complex, systemic,
William of Ockham was a philosopher who lived from 1285-1349 A.D. He employed the principle of parsimony in scientific explanation. That principle says that the best explanation uses the simplest and fewest assumptions to explain a phenomenon.
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