“Egregious” EPA Misconduct Delivers Whistleblower Win

Washington, DC — In a scathing decision, a U.S. Department of Labor judge has ruled that the U.S. Environmental Protection Agency improperly sought to conceal exonerating evidence and illegally retaliated against a whistleblower. In the ruling posted today by Public Employees for Environmental Responsibility (PEER), a U.S. Department of Labor administrative law judge catalogued a trove ofmisconduct by EPA lawyers covering years of litigation.

The April 15, 2015 ruling by Administrative Law Judge Linda Chapman involved EPA senior chemist Cate Jenkins, who had reported fraudulent agency limits on corrosive dust and improper testing and cover-up of the toxic properties of the dust emanating from the World Trade Center (WTC) disaster which contributed to deaths and illnesses of First Responders. Judge Chapman found that EPA had “failed to produce literally thousands of documents” in a campaign of concealment. Emptying the lexicon of opprobrium, using terms such as blatant, extreme, and willful, she concluded that EPA had—

• “Failed, and failed miserably, over an extended course of time in complying with its discovery obligations and…Court discovery orders”;

• Worked a “fraud on the Court” through numerous “false claims” and inaccurate claims of privilege which upon examination applied to “none of the documents provided” (Emphasis in original); and

• Deliberately and illegally destroyed an unknown number of documents which should have been under a litigation hold.

EPA’s obstruction of Dr. Jenkin’s attempts at discovery were further complicated by the agency’s belated disclosure of “shadow email accounts” (such as a pseudonym account used by then-Administrator Lisa Jackson) maintained by agency employees subject to discovery.

“The extreme efforts by EPA lawyers to conceal evidence had the exact opposite effect from what EPAintended,” stated PEER Senior Counsel Paula Dinerstein, noting that Dr. Jenkins had already been restored to her job after another court, the U.S. Merit Systems Protection Board, had ruled that EPAhad violated her due process rights in its attempt to remove her. “This ruling also illustrates the central role that the Office of General Counsel plays in sustaining a sick culture of reprisal inside EPA.”

The ruling came in response to a motion for sanctions filed by Dr. Jenkins’ legal team against EPA for repeatedly withholding or destroying evidence. Judge Chapman applied adverse inferences on issues affected by EPA discovery misdeeds but also ruled on the substance of the case, finding that the actions the agency accused Dr. Jenkins of committing “did not occur” and concluding –

“Dr. Jenkins, Complainant, has established that the U.S. Environmental Protection Agency, the respondent, has retaliated against her for her reports to Congress and the FBI, and to the public through the media, about her allegations of violations of environmental laws and regulations by the EPA in connection with the rescue and cleanup operations at the WTC, in violation of thewhistleblower provisions of [several federal environmental laws].”

“This ruling is as much a condemnation of EPA as it is vindication of Dr. Cate Jenkins,” Dinerstein added. “The only remaining question is whether EPA will learn from and atone for its actions.”

Attorney Mick Harrison, co-counsel with PEER in representing Dr. Jenkins, stated that this decision by Judge Chapman clearly vindicates Dr. Jenkins who had courageously risked her long and distinguished career to protect the first responders at the World Trade Center and the residents of New York City.

Judge Chapman’s ruling becomes final if EPA does not appeal it to the U.S. Secretary of Labor’s Administrative Review Board but the ruling makes it extremely unlikely for the agency to prevail. At the same time, PEER and Dr. Jenkins have pursued her efforts to tighten the corrosive dust standards through litigation, so that the tragedy of the 9/11 First Responders never happens again. That case is now before the U.S. Court of Appeals for the District of Columbia.