United States GAO General Accounting Office Washington, D.C. 20548 Resources, Community, and Economic Development Division B-281868 January 29, 1999 The Honorable F. James Sensenbrenner, Jr. Chairman, Committee on Science House of Representatives Subject: Environmental Protection: Allegations bv EPA Emulovees Dear Mr. Chairman: The mission of the Environmental Protection Agency (EPA) is to protect human health and to safeguard the natural environment. EPA’s purpose is to ensure that all Americans are protected from significant environmental health risks and that national efforts to reduce environmental risks are based on the best available scientific information. On June 10, 1998, The Washington Times published a letter from 20 individuals,1 including EPA employees and others having business with the agency, alleging mismanagement by EPA and retaliation against whistleblowers. The individuals alleged fraud and waste in EPA and claimed that EPA regulations and enforcement actions are based on poor science and consequently harm, rather than protect, public health and the environment. Moreover, the individuals claimed that EPA retaliates against whistleblowers and rewards individuals who carry out the retaliations. Most of the individuals making the allegations were employees in either EPA’s Office of Research and Development or in EPA’s regional offices. Some of the individuals had sought relief from retaliation under whistleblower protection statutes. You requested that we (1) provide specific information on the allegations made by the 20 individuals and EPA’s response to the allegations and (2) determine ‘The Washington Times published the letter with 13 signatures. The original letter the newspaper received had 19 signatures. Six of the signatures were not published because the newspaper did not get permission from those individuals to print their names. The actual author of the letter was not among its signers but was considered for the purposes of this report to be the 20th individual involved. GAOLRCED-99-61R Allegations by EPA Employees B-281868 whether these and other individuals sought relief under whistleblower statutory provisions and, if so, the resolution or status of the cases and whether the 20 individuals are still employed by or have business with the agency. RESULTS IN BRIEF Of the 20 individuals who sent the letter making the allegations to the newspaper, 10 provided us with 16 specific allegations. The other 10 individuals told us that they either signed the letter to support fellow employees (8 individuals) or to protest fraud and waste in an EPA regional office (2 individuals). Generally, the allegations involved the inappropriate use of scientific evidence, the mismanagement of contracts, and other issues discussed below. - Nine of the allegations questioned EPA’s use of science to support risk assessments and regulations. Two of these allegations involved matters considered by EPA in the last 2 years; the others involved matters that were considered 6 to 12 years ago. In some cases, EPA’s actions were alleged to have not been sufficiently protective; in others, EPA was accused of taking actions not supported by the science. As of December 1998, EPA stated that it disagreed with the basis for eight allegations and indicated that it did not have sufficient information or details to formulate a response to the remaining allegation. - Four allegations made by the individuals concerned specific contract irregukuities or contract activities. EPA’s Office of Inspector General confirmed that the contract irregularities cited in one allegation had occurred. For another allegation, EPA’s Office of Inspector General reviewed the contract and did not take further action on the allegation. In response to the other two contract allegations, EPA said that one was unfounded and that it was unaware of the specifics of the other allegation and could not comment on it. EPA’s Office of Inspector General was not involved in these two allegations. - The three remaining allegations involved issues such as the approval of grants without adequate documentation. In response to these allegations, EPA indicated that corrective action had been taken for one, that it disagreed with the basis for another, and that it was unaware of the specifics of the remaining allegation and therefore could not comment on it. The specific allegations and EPA’s responses are listed in detail in enclosure I to this letter. 2 GAOLRCED-99-61R Allegations by EPA Employees B-281868 Of the 20 people who sent the letter to the newspaper, 8 had filed 12 complaints against EPA alleging that the agency had retaliated for whistleblower activities. These complaints were not always linked to the allegations about scientific evidence or contract mismanagement. Five of those who sent the letter are no longer employed by or associated with the agency; four of the five had filed complaints about retaliation. Another individual remains on EPA’s payroll but is on a detail to a university position. From January 1992 through December 1998, approximately the same period during which these 12 complaints were filed, an additional 24 complaints were filed by 20 other EPA employees seeking whistleblower protection. Overall, for the 36 complaints, 6 were resolved in favor of the individuals,2 and 14 were dismissed at the request of both parties. Seven cases were resolved in favor of EPA Nine cases are still in litigation. BACKGROUND The 20 individuals who sent the letter to The Washington Times alleged that EPA employees have been harassed and fired for criticizing EPA’s enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act; the Clean Air Act; the Safe Drinking Water Act; and other environmental statutes. The individuals alleged that retaliation against whistleblowers occurs at every management level and is supported throughout EPA Additionally, the letter stated that even if whistleblowers’ claims are substantiated, whistleblowers are tied or their careers are “dead-ended” and that the agency employees carrying out the retaliation are rewarded. Employees who beheve they have been retaliated against by an employer, including EPA, for whistleblower activities related to the Clean Air Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Federal Water Pollution Control Act; the Safe Drinking Water Act; the Solid Waste Disposal Act; and the Toxic Substances Control Act may file a complaint with the Secretary of Labor under employee protection provisions contained in these laws. Complaints filed under these environmental laws are reviewed by an Occupational Safety and Health Administration investigator3 If the investigator determines that retaliation has occurred, the Occupational Safety and Health Administration may order corrective actions. If the Occupationa 2The cases shown as resolved in favor of the individuals include three mutually agreed upon settlements between the employees and EPA in which the employees received some form of compensation. 3The Occupational Safety and Health Administration is an agency within the Department of Labor. Prior to February 3, 1997, these matters were investigated by the Department of Labor’s Wage and Hour Division. 3 GAO/RCED-99-61R Allegations by EPA Employees B-281868 Safety and Health Administration’s findings and remedy are not appealed, the order becomes a final order of the Secretary of Labor. However, either party may request a hearing before a Department of Labor administrative law judge. If a hearing is requested, any findings made by the Occupational Safety and Health Administration are rendered legally moot, and a new review of the complaint is begun. Recommended decisions and orders issued by the administrative law judges may be appealed to the Department of Labor Adrninistrative Review Board and after that to the United States court of appeals for the circuit in which the alleged discrimination occurred. Federal employees, including EPA employees, may also seek whistleblower protection from the Office of Special Counsel and the Merit Systems Protection Board under the Whistleblower Protection Act of 1989. The Office of Special Counsel is an independent executive agency whose responsibilities include investigating whistleblower complaints brought by federal employees and litigating cases arising out of these complaints before the Merit Systems Protection Board. The Office of Special Counsel reviews whistleblower complaints to determine whether there is reason to believe prohibited personnel practices have occurred. It may seek early resolution of a complaint with an agency or write to an agency recommending corrective action. If an agency declines to take action, the Office of Special Counsel or the employee may take the case to the Merit Systems Protection Board for resolution. If the action involves a matter appealable to the Merit Systems Protection Board, the employee has the option of filing with the Office of Special Counsel or directly with the Board. The Merit Systems Protection Board is an independent agency in the executive branch that is responsible for hearing and adjudicating appeals by federal employees and cases brought by the Office of Special Counsel alleging prohibited personnel practices, including charges in connection with whistleblowing. The Board has the authority to enforce its decisions and to order corrective and disciplinary actions. Final decisions of the Board can be appealed to the United States Court of Appeals for the Federal Circuit. SPECIFIC ALLEGATIONS BY INDMDUALS AND EPA’S RESPONSES The letter in The Washington Times was general in nature regarding EPA’s alleged mismanagement and retaliation against whistleblowers. When we contacted the 20 individuals who sent the letter, 10 provided information on 16 specific allegations. Nine of those specific allegations involved the inappropriate use of scientific evidence, four involved contract mismanagement, and three involved miscellaneous issues. Of the 10 employees who did not provide specific allegations, 8 stated that they signed the letter to support fellow employees, and 2 stated that they were protesting fraud and waste in the EPA Region VIII Office in Denver. Enclosure I details the 16 specific allegations 4 GAO/RCED-99-61R Allegations by EPA Employees B-281868 made by the individuals and any aReged retaliation by EPA, with the disposition of the retaliation complaints as well as EPA’s responses to and comments on the allegations and complaints. Of the nine allegations involving the inappropriate use of scientific evidence, eight were focused on or related to criticism of EPA’s rule-making process. The eight allegations involved five rules that had been promulgated over the period from 1987 through 1997. The topics of these rules and their effective dates were particulate matter, 1997; land disposal of sewage sludge, 1993; wood preserving, 1990; the pesticide Alar, 1990; and wastewater discharge, 1987. One of the eight allegations also involved a risk assessment for secondhand smoke that EPA prepared in 1992. The science-related allegations involved a lack of scientific support for regulatory decisions, the use of poor-quality scientific evidence to support decisions, or the manipulation of scientific support. In some cases, as with the wood preserving rule, the allegation was that the rule did not go far enough to protect the environment, and in other cases, as with the sludge rule, the allegation was that the rule was not supported by the scientific evidence. EPA generally disagreed with the basis of these allegations or indicated that it was unaware of an allegation. For example, two individuals alleged that the sludge rule was not based on good science and that EPA managers overruled and did not consider the concerns of the agency’s scientists. EPA’s response was that this allegation was not factual and that the agency encouraged its scientists to publicly comment on the rule. The scientists’ comments, along with those of others, were considered and used in the development of the final rule, according to EPA An example of an allegation regarding the poor quality of scientific evidence is one individual’s claim that the Alar pesticide rule was not based on the best science. EPA’s response to the allegation was that EPA’s Office of Research and Development reviewed and commented on the risk assessment for the rule and that the rule was peer-reviewed by scientists outside EPA as well as by EPA’s Science Advisory Board. Regarding the manipulation of scientific evidence, an individual alleged that EPA’s risk analysis of secondhand smoke, which was based on an extrapolation of data derived from animal tests to humans, was “bogus.” EPA stated that in the risk assessment, no direct animal data extrapolation was used, but that animal test data did support the findings based on human data. The final scientific allegation did not involve EPA’s rule-making process, but rather the risk assessment and cleanup method for a specific Super-fund site. An EPA employee alleged that the agency did not perform the required risk assessment before beginning the site’s cleanup and that the agency disregarded 5 GAOLRCED-99-61R Allegations by EPA Employees B-281868 scientific findings that raised concerns about copper leaching from the Super-fund site into the groundwater and soil. EPA stated that it took cleanup action at the site based on very little documentation of risk, an allowable procedure for interim response actions, according to the agency. In connection with copper leaching, EPA stated that another source of copper contamination is suspected but has not been found. In the category of contract mismanagement, the four allegations involved specific contracts or contract activities. In response to one allegation, involving two contracts, EPA’s Office of Inspector General conducted audits and concluded that irregularities, such as a violation of the Antideficiency Act when EPA ordered a building lease to run longer than the available appropriation, had occurred in both contracts. Another allegation was that procedures had not been followed when a contract was modified to increase the contract amount for additional work. EPA stated that it had followed the appropriate procedures in modifying the contract. The remaining two allegations involved free contractor services provided to EPA and contractor personnel directing EPA employees to change contract terms to be favorable to the contractor. EPA stated that the Office of Inspector General investigated the allegation about free contractor services and concluded that further action on the allegation was not warranted. EPA said it was not aware of any allegations being forwarded by employees to the Office of Inspector General involving the modification of contract terms to be favorable to the contractors. The three miscellaneous allegations involved the approval of improper or illegal EPA funds in a grant to a state for pesticide inspections; efforts to terminate the employment of an individual employed under an EPA grant because of his association with an EPA employee; and problems with documentation, controls, and duplication in EPA’s financial systems. EPA’s responses to these allegations were, respectively, that regarding the state grant, it could not respond without specifics about the grant; regarding the efforts to terminate the employment of an individual, EPA stated that no one sought to terminate his employment; and regarding the financial systems, EPA stated that the Office of Inspector General is reviewing the adequacy of the financial systems and, as problems are identified, that they will be resolved as systems are improved. WHISTLEBLOWER CASES FILED BY INDIVIDUALS Of the 20 individuals who sent the letter to The Washington Times, 8 had filed a total of 12 whistleblower complaints with the Department of Labor, the Office of Special Counsel, or the Merit Systems Protection Board. EPA denied that any retaliatory actions were taken with respect to these employees. As of December 31, 1998, three complaints had been resolved in favor of the 6 GAOLRCED-99-61R Allegations by EPA Employees B-281868 individuals, and four had been dismissed at the request of both parties. One complaint had been resolved in favor of EPA, and the remaining four complaints were still in litigation. The complaints alleged retaliation by EPA for actions taken by the employees. For example, one employee alleged that his performance rating was lowered because of his disclosures of contract irregularities to EPA’s Office of General Counsel and the Office of Inspector General. The settlement of the complaints occurred over time, with some being settled as recently as 1998 and others dating to 1994. A summary of the number of employees’ whistleblower complaints and the dispositions of those complaints as of December 31, 1998, is in enclosure II. The employees’ tiegations about retaliation did not always flow from their allegations about the inappropriate use of scientific evidence, the mismanagement of contracts, or other issues. Therefore, we cannot conclude that the allegations they made about these issues prompted the alleged retaliation for whistleblower activities. For example, one employee stated that he was the subject of retaliation for publicly criticizing EPA in a magazine article. The Department of Labor’s investigator determined that the employee had been discriminated against, and EPA requested a hearing on that determination. The employee and EPA subsequently agreed to a monetary settlement. However, the employee’s specific allegation about the inappropriate use of scientific evidence involved the rule governing the land disposal of sludge. The magazine article for which the employee alleged retaliation was not related to this rule, and, therefore, the alleged retaliation was not directly linked to the allegation about the inappropriate use of scientific evidence. Another uncertainty about the complaints alleging retaliation and the dispositions of those complaints is the impact that they had on the employees’ future employment with EPA Of the eight individuals filing whistleblower complaints, three have left EPA since the publication of the letter in & Washington Times in June 1998. One of these individuals left EPA after the grant he was working on expired; the others were full-time employees. Two individuals who sent the letter, but who did not file whistleblower complaints, also left the agency. One of these individuals was a full-time employee; the other was a contractor employee. Another employee has remained on EPA’s payroll, but as part of his settlement with EPA, he began a 2-year Intergovernmental Personnel Act assignment at the University of Georgia on December 13, 1998. In addition to the 8 employees who filed whistleblower complaints and sent the letter to The Washington Times, another 20 EPA employees filed 24 whistleblower cases during the period from January 1992 through December 1998. Three of these cases were resolved with terms favorable to the individuals, and 10 were dismissed at the request of both parties. For six cases, 7 GAO/RCED-99-61B Allegations by EPA Employees B-281868 the decisions were resolved in favor of EPA The remaining five complaints were still in litigation as of December 31, 1998. AGENCY COMMENTS We provided a draft of this report to the Environmental Protection Agency, the Occupational Safety and Health Administration, the Merit Systems Protection Board, and the Office of Special Counsel for review and comment. EPA provided comments and clarifying language. We added clarifying language in the appropriate areas of the report. For three of EPA’s comments we did not make changes. In the first comment, EPA stated that there were 34 whistleblower complaints, not 36 as we cite in the report. We reverified the number of complaints and concluded that the correct number was 36. A second comment involved our characterization of complaints that resulted in mutually agreed settlements between EPA and the complainants as having been settled in favor of the employees. EPA stated that in these cases, there was no prevailing party and the cases should be characterized as having been dismissed at the request of both parties. We believe that the settlements reached were favorable to the individuals and that the cases should be so characterized. The third comment for which we did not change report language was in regard to an employee referred to in table I.1 as employee 1. EPA stated that it had applied its ethics standards to the employee’s outside writing, which was both critical and not critical of the agency. With regard to the articles that were not critical, EPA determined that proper procedures had been followed. EPA requested that we revise the “alleged retaliation” column of the table accordingly. However, this column reports the employee’s retaliation allegation, not EPA’s position. With regard to EPA’s position on the alleged retaliation, the “disposition” column presents the conclusions of the independent Department of Labor investigation, which determined that EPA discriminated against the employee. Also, EPA requested that in the tables in enclosure I, under “EPA’s comments on allegation” for employees 1, 2, 3, 4, 7, 10, 11, and 12, we add that the agency denies that any retaliatory action was taken with regard to the employees. We did not make these changes because that column is intended to present EPA’s comments on the allegations of inappropriate use of scientific evidence, mismanagement of contracts, and other issues-not its response to the retaliation allegations. Instead, we added a sentence to the text of the report to reflect EPA’s position on alleged retaliatory actions. The Occupational Safety and Health Administration, Merit Systems Protection Board, and Office of Special Counsel provided comments on the draft report that were technical in nature and were incorporated as suggested. For example, the Occupational Safety and Health Administration suggested clarifying language in footnote 3 indicating when it had succeeded the Wage and Hour Division as 8 GAO/RCED-99-618 Allegations by EPA Employees B-281868 the investigator of whistleblower complaints. Similarly, the Merit Systems Protection Board suggested clarifying language on the appeals process for whistleblower complaints. Both the Merit Systems Protection Board and the Office of Special Counsel suggested language to clarify the disposition of two whistleblower complaints. The report was modified to reflect these suggestions. SCOPE AND METHODOLOGY To obtain information on the allegations made by the individuals, we interviewed the individuals who made the allegations and reviewed the supporting documentation that they provided. We obtained and reviewed EPA’s written responses to the ahegations about scientific, contract, and other matters. To determine whether the employees sought relief under the whistleblower protection statutes, we reviewed information provided by the employees and by EPA’s Office of General Counsel on EPA whistleblower cases that were filed with the Department of Labor, the Office of Special Counsel, or the Merit Systems Protection Board from January 1, 1992, through December 31, 1998. We did not evaluate the merits of the scientific, contract, and other allegations; the alleged retaliation; or the disposition of the retaliation cases. We conducted our review from November 1998 through January 1999 in accordance with generally accepted government auditing standards. GAO/RCED-99-61R Allegations by EPA Employees B-281868 As arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days from the date of this letter. At that time, we will send copies of this report to the appropriate congressional committees; interested Members of Congress; the Administrator of EPA; and other interested parties. We will also make copies available on request. Please call me at (202) 512-6111 if you or your staff have any questions. Major contributors to this report were Doreen S. Feldman, Hamilton C. Greene, Robert E. Lippencott, Everett 0. Pace, Rosemary Torres-Lerma, and John A. Wanska Sincerely yours, Peter F. Guerrero Director, Environmental Protection Issues Enclosures - 2 10 GAO/WED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I ALLEGATIONS MADE BY INDMDUALS This appendix lists the specific allegations made by the individuals who sent the letter critical of EPA that appeared in The Washington Times on June 10, 1998. Twenty individuals sent the letter, including 16 EPA employees, 2 EPA grantee employees, and 2 EPA contractor employees. Ten of these individuals made 16 specific allegations, which are summarized here. Of the 10 individuals who did not provide specific allegations, 8 stated they signed the letter to provide support for their fellow employees, and 2 stated that they were protesting fraud and waste in the EPA Region VIII Office in Denver. In tables I.1 through I.4, employees are referred to by number. Some employees made more than one allegation, so their numbers may appear two or three times in the tables. Of the 10 individuals who made specific allegations, all were EPA employees except for employee number 7, a grantee employee. The allegations are organized into three categories: - the inappropriate use of scientific evidence, 9 allegations (see table 1.1); - the mismanagement of contracts, 4 allegations (see table 1.2); and - miscellaneous, 3 allegations (see table 1.3). Within each category, the individuals who had alleged whistleblower retaliation by EPA are listed first, followed by those employees who did not allege retaliation. In total, 8 employees made whistleblower retaliation allegations against EPA in 12 complaints: - Ten complaints were filed with the Department of Labor requesting relief under the employee protection (whistleblower) provisions in six environmental statutes (the Clean Air Act, 42 U.S.C. 7622; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9610; the Federal Water Pollution Control Act, 33 U.S.C. 1367; the Safe Drinking Water Act, 42 U.S.C. 3OOj-9(i);the Solid Waste Disposal Act, 42 U.S.C. 7622; and the Toxic Substances Control Act, 15 U.S.C. 2622). - One complaint was filed with the Office of Special Counsel pursuant to the Whistleblower Protection Act of 1989. The employee appealed the initial decision dismissing the case, and the matter is pending before the Merit Systems Protection Board. - One complaint was filed with the Merit Systems Protection Board pursuant to the Whistleblower Protection Act of 1989. The Merit Systems Protection Board did not order corrective action when the case came before it. The United States Court of Appeals for the Federal Circuit affirmed the Merit Systems Protection Board order denying corrective action. 11 GAOLRCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I Of the 12 cases, 3 were resolved in favor of the employees, 4 were dismissed at the request of both parties, 1 was resolved in favor of EPA, and 4 are still in litigation. Table I.4 summarizes information about two employees who did not have specific scientific or contract allegations, but did have complaints investigated by the Department of Labor, the Office of Special Counsel, or the Merit Systems Protection Board. 12 GAOLRCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I Table 1.1: Specific Alleaations: Inatmrom-iate Use of Scientific Evidence EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (1) Employee 1, of EPA’s Office EPA’s Office of Research and The employee wrote an article in EPA applied its ethics standards A Department of Labor investigator of Research and Development, . Development stated that the N.&U@ on June 27,1996, and was a to the employee’s outside writing determined on January 10, 1997, that stated that most scientists at EPA allegation has no basis In fact. guest editor for the Athens, Ga., critical of EPA, but not to articles the employee was discriminated do not believe the rule (issued in According to EPA, scientists were Banner Herald on October 1, 1996. not critical of EPA. against by EPA. The investigator 1993) governing the land encouraged to publicly comment In both articles he was critical of EPA determined that EPA’s accusation that application and disposal of on the proposed rule. Their and alleged that EPA was bypassing EPA publicly accused the the employee had violated the sewage sludge was based on comments along with those from sound science because of political employee of violating its ethics agency’s ethics standards was directly good science. The employee the general public and a pressure. standards by communicating its linked to the employee’s public stated that EPA administrators Workgroup of international experts accusations in a letter to a criticisms of EPA. and senior managers completely were used in the development of On October 29, 1996, the employee Congressman. overruled the agency’s scientists the final rule. EPA also filed a complaint with the Department EPA requested an appeal before the and did not consider their commented that the rule received of Labor alleging retaliation. Office of Administrative Law Judges. scientific concerns on the land positive reviews by the National On March 20,1998, the Department application and disposal of Academy of Sciences/National of Labor dismissed the complaint sewage sludge. Research Council. pursuant to an agreement entered into by the parties. As part of the EPA officials stated that the settlement, EPA agreed to pay articles for which the employee $115,000 to the employee, which alleges retaliation did not deal included the payment of attorneys’ with the sludge rule, which is the fees. focus of the employee’s allegation. 13 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (2) Employee 1 was generally Since this matter is in litigation, See allegation (1). The employee applied for a A Department of Labor investigator critical of the poor quality of EPA had no comment other than promotion and filed a complaint determined on August 18, 1998, that science at EPA. to reject the employee’s version with the Department of Labor on the employee was discriminated of the facts. February 27, 1998, after the against by EPA and that the promotion was denied. promotion process was inherently flawed because the promotion According to the employee, all process was not defined. The four EPA officials serving on the investigator recommended that the employee’s panel recommended employee be provided an opportunity against promotion because to present his promotion package to a certain data were missing from new promotion panel and, if the promotion package. approved, that the employee be provided back pay from the date he According to the employee, his could have been promoted had the promotion application had been original promotion panel selected him. denied even though all five outside experts involved in the Both parties requested a hearing process unanimously supported before the Office of Administrative it. Law Judges. The proceeding was stayed pending the outcome of a settlement discussion. The settlement reached included the employee’s withdrawing his case and EPA’s paying for a 2-year Intergovernmental Personnel Act assignment for the employee at the University of Georgia. The settlement also included EPA’s agreement to consider a request for an extension beyond the original period, and the employee’s agreement to resign or retire no later than May 28, 2003. The employee began his e-year assignment with the University of Georgia on December 13, 1998. 14 GAO/RCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (3) Employee 1 was generally Since this matter is in litigation, According to the employee, In June The employee stated that an EPA The Department of Labor has not critical of the poor quality of EPA had no comment other than 1998, he was contacted by the New official intentionally and knowingly ruled in this case. science at EPA. to reject the employee’s version Hampshire chapter of the Sierra Club interfered with activities protected of the facts. to serve as an expert witness in under whistleblower statutes. litigation against the state of New The employee alleged that an Hampshire on EPA’s rule governing EPA official, in testimony to the the land application and disposal of New Hampshire House of sewage. Permission was granted by Representatives said (1) that the EPA for the employee to be an employee would attempt to expert witness. The employee stated misrepresent himself as speaking that it appeared that an EPA on behalf of the agency when he management official attempted to would not be and (2) that the discredit his planned testimony as a employee’s testimony to be given witness. was false. On December 1, 1998, the employee In his complaint, the employee filed a complaint with the Department stated that EPA’s actions would of Labor. harm his reputation, result in the loss of wages, and interfere with his ability to engage in protected activities. He stated that his future financial support will be derived from consulting and expert witness work done to supplement his federal retirement pension. He also alleged that the EPA official’s testimony on the EPA rule governing land application and disposal of sewage questioned the employee’s credibility and thus jeopardized his standing as an expert witness. 15 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (4) Employee 2 stated that, on EPA stated that the employee’s Beginning in 1988, the employee filed The contractor wrote a letter to In one complaint, a Department of the basis of scientific evidence, a allegations were extensively a series of complaints against EPA the EPA Administrator Labor Administrative Law Judge 1990 EPA wood preserving rule investigated and that EPA has with the Department of Labor that complaining about the employee, issued a Recommended Decision and does not go far enough to protect appropriately regulated wood alleged retaliation for various actions which resulted in an Inspector Order on December 14,1992, the environment. The employee preserving waste chemicals that the employee believed were General (IG) investigation of the ordering EPA to offer the employee stated that a contractor study on include dioxins. protected by the statutory employee. reinstatement to her former or a dioxin was used to support the whistleblower provisions. comparable position and to regulation, but that other studies According to the employee, the compensate her for costs. This supporting a stronger regulation The employee filed a complaint with IG investigation found that she decision was adopted by the were available. the Department of Labor on April 11, had written a letter to a Member Secretary of Labor on May 18, 1994. 1988, alleging adverse actions were of Congress using EPA taken against her. Subsequently, letterhead, a violation of federal For the second case, on July 10, she filed four amended complaints on regulations. 1998, a Department of Labor July 12, 1988; September 27, 1990; Administrative Law Judge determined May 28, 1991; and November 13, that any adverse actions EPA took 1991. On February 28, 1996, all the against the employee from 1987 to employee’s allegations were 1991 were taken for legitimate consolidated in one document. The business reasons and were not employee’s actions concerning the retaliatory. The Administrative Law dioxin study were among the issues Judge recommended that the case be in the case. dismissed in its entirely. In 1991, the employee wrote a letter of complaint to a Congressman about the contractor study EPA used to support the rule on wood preserving waste chemicals. 16 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (5) Employee 3 stated that he According to EPA, it can take According to the employee, he wrote According to the employee, 5 The Department of Labor investigator had concerns about the way the cleanup actions based on very a letter to the EPA Administrator days after he released the results determined on January 28, 1998, that Summitville Super-fund Site was limited documentation of risk discussing the Summitville Superfund of his study, the EPA’s Inspector the employee had not been being cleaned up. The employee posed by a site. At Summitville, Site and stating that a risk General (IG) started a criminal discriminated against as a result of stated that EPA did not perform it identified four areas of cleanup assessment had never been done on investigation of his activities. The protected activities. On February 2, the required rlsk assessment activities, with management the site. employee stated that the IG tried 1998, the employee filed a request for before beginning the site cleanup. approval of the corresponding to prove that he had a conflict of a hearing before the Office of In addition, the employee stated cleanup interim records of The employee filed a complaint with interest because he was a Administrative Law Judges. In his that he questioned EPA’s cleanup decisions. These decisions were the Department of Labor on graduate student using agency complaint, the employee cited his method of moving the waste piles based on fully completed and December 23, 1997, alleging training funds at the same time work at the Summitville Superfund and covering them up with dirt. peer-reviewed baseline human discrimination in retaliation for he was involved with the Site and claimed his ability to perform He was concerned about the health and ecological risk protected activities. Summitville site. the critical and time-sensitive work leaching of copper through the assessments according to EPA. was compromised by his soil and into the water supply. management chain of command and The employee performed field EPA stated the allegation was by the EPA’s Office of Inspector studies to quantify the copper correct in that EPA was not General. In June 1998, the Office of exposure to sheep grazing in the concerned about a significant risk Administrative Law Judges conducted area. The study reported that of copper far downstream from a hearing. Subsequently, the parties copper levels were 23 times the site. A follow-on field reached a settlement of the complaint, higher than in the controlled sampling program to investigate and an order recommending dismissal environment. To the employee, areas of uncertainties was of the matter was issued on October this amount of copper suggested commissioned by EPA. EPA 14, 1998. According to the employee, a significant danger to the sheep stated that another source of as part of the settlement, he received ranching industry. However, contamination as great or greater a $100,000 payment from EPA. On according to the employee, EPA than the Summitville site is November 7,1998, the employee and the state were not concerned suspected but has never been resigned from EPA. with the findings of the study. The found. employee recommended more studies be done, but EPA did not perform any more studies. (6) Employee 4 stated that EPA EPA’s Office of Administration None. Not applicable. Not applicable. used scientific data from a and Resources Management, contractor to support a regulation which awarded the contract, on particulate matter (issued in stated that it was unaware of 1997) but that EPA was denied such an incident. EPA further access to the supporting data stated that the employee’s from the contractor. allegation did not contain sufficient information or details to formulate a response. 17 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (7) Employee 5, of EPA’s Office EPA’s Office of Research and None. Not applicable. Not applicable. of Research and Development, Development stated that it stated that EPA regulations are reviewed and commented on the not based on the best science. risk assessment for the Alar The example presented was the pesticide rule, which was Alar pesticide rule (issued in developed elsewhere in EPA. 1990). The employee could not The Office of Research and provide any details or other Development further stated that information supporting her the rule was peer-reviewed by allegation. scientists outside EPA as well as by EPA’s Science Advisory Board. (8) Employee 6 stated that EPA EPA’s Office of Research and None. Not applicable. Not applicable. regulations were sometimes Development stated that it based on scientific data of margin- disputed the employee’s al quality that EPA manipulated to allegations. support the regulations. Two examples were presented. -- The wastewater discharge for -- For the wastewater discharge organic chemicals, plastics, and rule, EPA’s Office of Research synthetics rule (issued in 1987): and Development stated that it The employee stated that In had no knowledge of data developing this rule, some data manipulation intended to gain were selectively used while other acceptance of the rule. data were discarded. -- The secondhand smoking rule: -- EPA pointed out that there is The employee stated that EPA’s no secondhand smoking rule but risk analysis, which was based on a risk assessment of the issue extrapolation of data derived from was done In 1992. EPA stated animal tests to humans, was that no direct animal data “bogus.” extrapolation was used in the risk assessment but that animal test data were supportive of data obtained from human health studies. 18 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I II Allegation (9) Employee 7 (a grantee EPA’s comments allegation on EPA’s Office of Research and Action None. taken by employee Alleged retaliation Not applicable. Disposition Not applicable. employee) stated that certain Development disputed the EPA regulations have been allegations. It stated that it used all issued that were not well crops for which data were available supported by scientific evidence. in its study for the regulation. It One such regulation, according also commented that the effects on to the grantee employee, is the both humans and animals were fully rule governing the land considered in promulgating the rule. application and disposal of sewage sludge (issued in 1993). The grantee employee stated that EPA used a corn study to show that crops would not be affected by the heavy metals or human pathogens in the sludge, but EPA did not consider other crops or the effect on animals when it issued its rule. The grantee employee also contended that recently a number of cattle in Georgia had died after grazing on areas to which sludae had been aDDlied. 19 GAOAWED-99-GlR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I Table 1.2: SDecific Alleaations: Mismanaaement of Contracts EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (10) According to employee 9, According to EPA, the Inspector The employee reported the issue to The employee filed a complaint According to EPA, the Office of EPA and a contractor entered General investigated the allegations the Office of Inspector General. on March 22, 1993, with the Special Counsel completed its into a verbal agreement for the of an unauthorized augmentation of Office of Special Counsel, stating investigation of alleged retaliation contractor to provide free appropriated funds and did not refer that he had been relieved of his against the employee and notified services to EPA for 4 months. the matter for further actions. position as Chief, Systems and EPA that the investigation revealed The employee alleged that this Accounting Branch, and placed in insufficient evidence to warrant further was an unauthorized an unclassified position. actions. According to the employee, augmentation of appropriated he and EPA agreed that he would be funds. The free services were in reassigned to a different position. connection with the development of a travel tracking system. 20 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I q EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (11) Employee 4 stated that The Inspector General (IG) The employee contacted the Office The employee alleged that EPA The Office of Special Counsel issued there is considerable undue conducted an audit of the contract of Inspector General and the Office officials lowered his performance its ruling on October 28, 1994, political influence In contracting involving the award process of General Counsel (OGC) and rating because of his disclosures determining that the evidence that is condoned at the highest allegation. According to EPA, this discussed contract irregularities of information to the OGC and supported the employee’s allegation levels of EPA. The employee audit began before the employee regarding several specific contracts. the IG. that EPA lowered the performance alleged that the award process contacted the IG. EPA also stated rating because of his disclosures to for one contract included that the employee testified at a The employee filed a complaint the OGC and IG. The Office of irregularities and that a number hearing that he had no personal alleging retaliation with the Office of Special Counsel recommended that of wrongdoings occurred In knowledge about the contract. The Special Counsel on February 3, EPA raise the employee’s rating on another contract. contract was canceled in 1991 1993. his 1992 annual performance because of irregularities in the appraisal and take disciplinary action selection and award process against the supervisor who lowered discovered during the audit. the rating. The Office of Special Counsel stated that EPA’s The IG conducted an audit of the management treatment of the second contract and reported EPA employee was part of a larger pattern (1) bypassed the General Services of harassment of employees within Administration and the “intent of EPA’s Contracts Management several laws” by using an EPA Division, EPA agreed to remove the contractor to acquire a building employee’s 1992 appraisal from his without specific authority to do so, employee performance folder. (2) preselected the building site and manipulated the procurement process in order for the EPA contractor to lease the desired building, (3) failed to make and retain documentation of significant decisions and activities related to the establishment of the facility, (4) paid about $3.8 million more to lease and renovate the building than it would have cost to purchase such a building outright, and (5) violated the Antideficiency Act when it ordered that the building lease run longer than the available appropriation. !l GAO/RCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (It) Continued The employee filed a complaint on The employee alleged that EPA EPA complied with all of the Office of March 1, 1996, with the Merit Systems failed to promote him, placed Special Counsel’s recommendations. Protection Board. “derogatory” statements in his The employee, however disagreed performance appraisal, and with the Office of Special CoUnSel’S subjected him to an abusive and recommendations, and requested harassing work environment in further relief by filing an Individual retaliation for his protected Right of Action appeal to the Merit disclosures. Systems Protection Board. The Merit Systems Protection Board Administrative Judge and the full Board on July 2, 1996, found that the employee had not been retaliated against. The employee appealed this decision to the U.S. Court of Appeals for the Federal Circuit. The court denied the appeal and affirmed the Board’s denial of corrective action. 22 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (12) An EPA regional office In connection with the allegation The employee stated that she called The employee stated that EPA The Department of Labor Investigator employee (employee 9) stated that EPA did not have adequate the state of Texas and the EPA initiated an Inspector General determined in October 1998 that there that EPA had awarded a scientific data on which to base regional office in Dallas to tell them criminal investigation of her was no evidence of retaliation. The performance-based contract for performance measures, EPA that Texas planned to award a similar activities, alleging that she was employee has requested a hearing cleanup at a Superfund site in stated that it provided the bidders contract and similar problems could interfering in contracting. She before the Office of Administrative Mississippi but did not have with the best scientific information result. also stated she had been given a Law Judges. The case is currently in adequate scientific data on which available to it at the time the “do-nothing” job involving the litigation. to base the performance solicitation was Issued. The The employee filed a complaint with management of automated data measures. As a consequence, contract was later modified by the Department of Labor in April 1998, processing equipment. the employee stated, the incorporating revised alleging ongoing retaliation when she Furthermore, she alleged that contractor had lost money on the performance treatment standards was not promoted. she was removed from her contract. for the cleanup. workspace and forced to work in a library. Subsequently, EPA Issued a In response to the allegation that modification to the contract, the contractor had lost money on according to the employee, even the contract, EPA stated that though federal acquisition when the contract modification regulations would have required was made, $234,599 was added the contract to be re-advertised. to cover additional requirements contemplated and within the scope of the original contract requirements. EPA also pointed out that the contractor could have pursued, but agreed not to, reimbursement of additional costs due the company as part of the contract modification. In response to the allegation that federal acquisition regulations would have required the contract to be re-advertised, EPA stated that the contract modification was fair, reasonable, and in the best interest of the government and that the change in the performance standards did not require a re-advertising for bids. 23 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (13) Employee 2 stated that According to EPA’s Office of According to the employee, she Not applicable. Not applicable. EPA contractors are too close to Solid Waste, it was not aware reported the issue to the IG, and the representatives of regulated that any allegations regarding complaint is currently being industries. The contractor contractors being too close to investigated by the IG. involved in this allegation did representatives of regulated work for EPA to help develop industries had been forwarded to RCRA regulations. The the IG by this employee. employee complained to the Inspector General that her supervisor was not following federal acquisition regulations in the management of contracts. Specifically, contractor personnel had directed EPA supervisors to change the statement of work to meet objections from the regulated industry. 24 GAO/RCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I Table 1.3: SPecific Alleaations: Miscellaneous EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (14) A Denver regional EPA stated that It could not fully The employee refused to approve the Since refusing to sign off on the EPA investigated and on August 15, employee (employee 10) said a respond to this allegation state inspection plan, stating that the state management inspection 1997, issued a Final Agency Decision state management inspection because the specific state planned program was inadequate. plan, the employee states that he finding no discrimination against the plan for identifying the presence management inspection plan and The plan involved identifying the has been moved from one employee. According to EPA, the of pesticides for a state and state grants at issue were not presence of five pesticides. program to another and has been employee did not appeal the Final several Indian tribes was identified. the target of racial harassment by Agency Decision. inadequate. Also, this employee The employee also refused to sign off fellow employees. stated that grants awarded to on EPA grants to a state that he felt According to EPA, the employee was another state represented bad represented bad science and were The employee was also detailed in fact suspended for 9 days for the science and were improper or improper or illegal uses of EPA funds. on May 21, 1997, from the inappropriate use of a government illegal uses of EPA funds. Denver regional office to Athens, credit card. EPA state that it took On November 14, 1994, the employee Ga., at his own expense and then appropriate disciplinary action in complained to EPA that he was suspended for 9 days for using a response to the employee’s discriminated against with respect to a government credit card to cover misconduct. number of terms and conditions of some of the expenses in Athens. employment. On March 3, 1998, the employee filed a second complaint of discrimination with EPA. That complaint was ultimately withdrawn by the employee, with prejudice. The employee resigned from EPA, effective September 30, 1998. 25 GAO/RCED-99-6lR Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (15) According to a former EPA According to EPA, no one sought The grantee employee filed a The grantee employee stated that The Department of Labor investigated grantee employee (employee 7) to terminate this employee. A complaint with the Department of he had been targeted for the complaint and on June 17, 1998, an acquisition manager at an number of contractor employees, Labor on March 12,1998. retaliation by EPA officials for his stated that it found no discrimination. EPA laboratory worked actively including this employee, had close personal and professional to terminate his employment applied to be hired under an relationship with an EPA The grantee employee requested a because (1) he worked closely agency grant. In 1995, the whistleblower. hearing before the Office of with an EPA employee laboratory in Athens, Ga., Administrative Law Judges but (employee 1) in voluntary reviewed whether it was withdrew his complaint in July 1998. religious activities and (2) he also appropriate to hire these participated with the EPA contractor employees and The grantee employee left EPA in employee at a meeting with a determined that it was August 1998 because the grant he Member of Congress and appropriate. In June 1997, while was working under was due to expire. publicly supported the EPA the employee was still working as employee’s criticisms of EPA an EPA grantee employee, the science. The grantee employee employee was offered a federal alleged retaliation by an EPA position in the Athens laboratory. employee who interfered with his According to EPA, the employee request to obtain federal refused the position. employment with EPA. 26 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition (16) Employee 8 reported to EPA stated that its management None. None. Not applicable. EPA that he was concerned and the Inspector General have about EPA’s financial systems had ongoing reviews of the because (1) the systems lack adequacy of the agency’s flow charts, (2) there is an financial systems. EPA stated increased emphasis on that it is continuing to improve processing documents as fast as and enhance these systems, possible with no regard for consistent with prudent business accounting or system controls, and security practices, and within and (3) there are examples of budget constraints. EPA also government waste, including the agreed that some duplication of resources required to design and data entry is often part of the program three different document phase-in of a new system and tracking systems and the serves as a management control. operational resources required to According to EPA, this enter all data into two systems: duplication is gradually eliminated the document tracking system as the systems are improved and and the agency’s accounting enhanced. 27 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I Table 1.4: Emolovees Without Specific Allegations but Who Alleaed Retaliation EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition Employee 11 did not make a EPA had no specifics from this The employee filed a complaint with The employee alleged retaliation On October 27, 1997, the Office of specific allegation but stated that employee to comment on. the Office of Special Counsel alleging by EPA in that management was Special Counsel determined that the he was protesting fraud, waste, that EPA had committed fraud, waste, preventing him from doing his employee’s complaint did not rise to and abuse in the EPA Region and abuse in the manner in which the job, giving him mediocre the level of a protected disclosure. VIII Office. agency was allocating funds to states appraisals, and making The employee sought corrective and Indian tribes in the region, that a derogatory remarks and filing action from the Merit Systems state employee had been instructed to false accusations about him. He Protection Board. On May 15, 1998, avoid meeting with him, and that he also alleged that regional the Denver Office of the Board had been falsely accused of sexual management had also retaliated dismissed his appeal. The employee harassment. against him by spreading rumors appealed the decision to the full about him. Board. A final decision by the Board is pending. On January 15,1999, the employee was dismissed from the agency. 28 GAOLRCED-99-61R Allegations by EPA Employees ENCLOSURE I ENCLOSURE I EPA’s comments on Allegation allegation Action taken by employee Alleged retaliation Disposition The employee (employee 12) Since no specific allegation was The employee filed a complaint with The employee claimed that EPA The Department of Labor investigated had no specific allegations. made, EPA had nothing to the Department of Labor on August 15, retaliated against him in response the complaint and on December 8, comment on. 1994, alleging that EPA retaliated to a 1994 memorandum he 1994, determined that EPA had not against him by Issuing a derogatory prepared that criticized EPA’s retaliated against the employee. The memorandum regarding his work policy regarding dioxin. employee requested a hearing before performance. The employee the Office of Administrative Law subsequently alleged that EPA further Judges. The Department of Labor retaliated against him by giving him a dismissed the complaint on mediocre rating for 1994. November 1, 1995, at the request of both parties. The settlement of the case is subject to confidentiality provisions. Employee 12 had no specific Since no specific allegation was On October 16, 1996, the employee The employee alleged that EPA The Department of Labor investigated allegations. made, EPA had nothing to filed a complaint with the Department changed his position description the complaint and on June 17, 1997, comment on. of Labor alleging that EPA had in a manner that would require determined that EPA had not retaliated against him and that EPA him to perform lower-graded retaliated against the employee. On violated the terms of the settlement duties. June 23,1997, the employee agreement reached in his previous requested a hearing before the Office case. of Administrative Law Judges. The complaint was dismissed by the Department of Labor on December 19, 1997, at the request of both parties. The settlement of the case is subject to confidentiality provisions. 29 GAO/RCED-99-61R Allegations by EPA Employees ENCLOSUREII ENCLOSUREII SUMMARYSTATUSOFWHISTLEBLOWERCOMPLA?NTS F7LEDBYSIGNERSOFTHEWASHINGTONTlMESARTICLE AS OFDECEMBER31:1998 Employee Number of Dismissed at identification complaints Resolved in favor request of Resolved in numbers filed of employee both parties favor of EPA In litigation 1 3 2 1 2 2 7 1 3 1 1 4 1 1 7 1 1 9 1 1 I1 1 1 12 2 2 Total 12 3 4 1 4 Notes: The employees’ numbers are the same as shown in tables 1.1 through 1.4 in enclosure I, where the specific complaints are described. All complaints were filed with the Department of Labor except for those of employees 4 and 11, which were filed with the Office of Special Counsel and the Merit Systems Protection Board. The cases shown as resolved in favor of employees include two mutually agreed upon settlements between the employees and EPA in which the employees received some form of compensation. (160463) 30 GAO/RCED-99-61R Allegations by EPA Employees Ordering Information The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and Mastercard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. Orders by mail: U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 or visit: Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537. 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Environmental Protection: Allegations by EPA Employees
Published by the Government Accountability Office on 1999-01-29.
Below is a raw (and likely hideous) rendition of the original report. (PDF)