Environmental

A. Who Is Covered?

Numerous federal statutes provide whistleblower protection to employees who report potential violations of environmental standards. These include:

• Asbestos Hazard Emergency Response Act
• Clean Air Act
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
• Federal Water Pollution Control Act
• Safe Drinking Water Act
• Solid Waste Disposal Act
• Toxic Substances Control Act

The scope of these laws is summarized below.  Click on the links to learn more about whistleblower rights under each statute.

• Asbestos Hazard Emergency Response Act (AHERA): AHERA was passed in 1986 in response to findings by Congress that some primary and secondary schools contained friable asbestos that could harm schoolchildren. It was designed primarily to compel the EPA to address the problem of asbestos in schools and to coordinate inspections of U.S. educational facilities by establishing accreditation standards for private contractors. The Act also provides employee protection against retaliation for reporting violations of environmental laws relating to asbestos in elementary and secondary school systems, whether public or non-profit private.
• Clean Air Act: The Clean Air Act is a comprehensive statute establishing standards for air quality, acceptable pollutants, and related reporting and inspection procedures. The act was passed to protect people, animals, plants, habitats, and the atmosphere from the harmful effects of airborne pollution. The specific provisions of the statute are exhaustive, as it covers many aspects of air pollution. However, whistleblower cases are most often brought when a company misrepresents its emissions levels or fails to comply with reporting and cleanup standards. An employer may not retaliate against an employee who reports any misreporting or noncompliance by the employer.
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Congress passed CERCLA in response to concerns over the release of hazardous waste into the environment. Also known as the Superfund legislation, CERCLA established a tax on the chemical and petroleum industries to establish a trust fund to subsidize the cleanup of abandoned or uncontrolled hazardous waste sites. CERCLA provides for liability, compensation, and emergency response for hazardous substances that have been released or are threatening to be released into the environment. Employees are protected if they have provided information to the local or federal government, have filed a complaint about their employer under the Act, or have participated in any CERCLA proceeding – for example by testifying or aiding in an investigation – against her or his employer.
• Federal Water Pollution Act: The Federal Water Pollution Control Act or “Clean Water Act” is analogous to the Clean Air Act described above. It prohibits the release of hazardous levels of pollution into any waters that constitute a natural habitat for living things. As with the Clean Air Act, an employee who reports any misrepresentations or noncompliance by the employer is protected.
• Safe Drinking Water Act: The Safe Drinking Water Act (SDWA) concerns lead levels in drinking water from both above-ground and underground sources. Under the SDWA, any public building – whether constructed before or after the passage of the SDWA – must have lead-free drinking water. Additionally, any new construction -– public or private — must have lead-free drinking water. Employees are protected from retaliation for reporting potential violations of the law.
• Solid Waste Disposal Act: The Solid Waste Disposal Act regulates the management of hazardous waste. It also provides funds for and assists in the development of technology and facilities to recover energy and other commodities from waste. An employee is protected for reporting abuses of funding and assistance, violation of waste management requirements, or other potential violations of the Act.
• Toxic Substances Control Act: The Toxic Substances Control Act (TSCA) regulates the thousands of industrial chemicals produced or imported into the United States to protect the health and safety of humans and the environment. It sets guidelines for the EPA’s testing, inspection, and tracking of industrial chemicals. TSCA also allows the EPA to ban the manufacture of chemicals it considers to pose an unreasonably high risk. An employee who reports potential violations of TSCA or in any way assists in proceedings or investigations of such violations is protected from employment retaliation.

B. What Activity Is Protected Against Retaliation?

Your employer may not retaliate against you for reporting potential violations of environmental laws and regulations to your employer or to the government, or for assisting in a proceeding under one of these laws or regulations. Unfavorable personnel actions taken in retaliation for protected activity can include, but are not limited to:

1. Termination of employment;
2. Demotion;
3. Denial of promotion;
4. Failure to pay overtime;
5. Failure to hire/rehire;
6. Intimidation or other physically or verbally threatening behavior;
7. Unwarranted discipline;
8. Unwarranted negative performance review;
9. Suspension or other forced leave;
10. Reduction in pay or hours;
11. Denial of benefits;
12. Reassignment that negatively impacts promotion prospects, seniority, or otherbenefits;
13. Blacklisting; or
14. Alteration of job duties (removal or excessive addition).

Unlike transportation-related whistleblower statutes that expressly protect employees who refuse to work when conditions violate applicable laws, the environmental regulations contain no such provision. The Secretary of Labor, however, interprets the statutes to provide some limited protection to employees who refuse to work. Namely, an employee is protected if he or she has a reasonable belief that his or her working conditions are unhealthful or unsafe, and he or she does not receive an adequate explanation from a responsible official that the conditions are safe and that the employer is not violating any applicable environmental laws or regulations.

Note that an environmental whistleblower whose activity is protected by one of the above statutes has only 30 days to file a complaint with any office of the Occupational Safety and Health Administration (“OSHA”). If, however, the claim falls under the Asbestos Hazard Emergency Response Act, a claimant has 90 days to file. The complaint explaining the potential violation, your protected activity, and the unfavorable personnel action your employer took must be delivered to OSHA within the applicable time frame.

C. How Does A Successful Whistleblower Prove Retaliation?

Most statutes enacted to protect whistleblowers in various employment settings from retaliation by their employers are similar in key ways. Nearly every environmental statute has the same four general requirements:

1. The employer must be covered by the relevant statute;
2. The employee must have engaged in some protected activity by reporting a violation of environmental laws by her/his employer;
3. The employer must know of the employee’s reporting/protected activity; and
4. The employee must suffer some unfavorable personnel action or harassment, motivated at least in part by her or his protected activity.

Generally, “protected activity” refers to the reporting of a company’s violations of federal law to an employer or to the government.

D. What Remedies Are Available To A Successful Claimant?

If OSHA finds that the evidence supports your whistleblower claim under an environmental whistleblower statute, you may be entitled to remedies that include:

• Reinstatement with previous seniority and benefits
• Back pay with interest
• Other possible relief to make you whole, including attorneys’ fees, and in some cases including compensatory and punitive damages.

E. How Do I Decide Whether And How To Report Unlawful Conduct?

Whether to report concerns about violations of environmental standards — and, if so, when, how and to whom — can be a very difficult decision for an employee, as blowing the whistle on an employer’s unlawful practices can be a career-ending move. However, the environmental whistleblower laws provides strong legal protections, and employees who raise these concerns can look to a number of resources for assistance. If you are thinking about reporting such concerns, or if you already have and are facing retaliation, contact the experienced whistleblower lawyers at Katz, Marshall & Banks, LLP for an evaluation of your whistleblower case with no further obligation.