oversight

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)

      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.
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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.



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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.

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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

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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

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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

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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,

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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

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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
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     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.


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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.




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        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.




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        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
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