WASHINGTON, DC - June 9 - In a long-awaited whistleblower trial beginning today, the U.S. Environmental Protection Agency will have to justify dismantling its only independent public advocate. The National Ombudsman Office was closed early in the Bush administration as it pursued an array of EPA scandals, including its failure to issue health warnings after the World Trade Center collapse, use of toxic sewage sludge in widely distributed fertilizer and malfeasance at several Superfund cleanups across the nation, according to documents posted by Public Employees for Environmental Responsibility (PEER).
The complaint by Hugh B. Kaufman, who served as the Chief Investigator for the National Ombudsman Office from 1997 until its demise in 2002, charges violation of whistleblower anti-retaliation provisions of the very federal environmental laws that EPA is supposed to enforce. The hearing will feature witnesses harmed by agency misdeeds who had sought help from the Ombudsman Office.
After an initial investigation, the U.S. Labor Department ruled in Mr. Kaufman’s favor and found EPA’s removing his duties was in reprisal for his performing a “too effective job”. Then-EPA Administrator Christie Todd Whitman personally pulled the plug on the Ombudsman Office and was “committed to not putting Kaufman back”, according to one e-mail exhibit.
EPA appealed the Labor Department order restoring Kaufman, thus triggering the hearing beginning today before administrative law judge Thomas M. Burke in Washington, D.C.
Among the many interrupted Ombudsman investigations were a probe into the World Trade Center aftermath, several high-profile Superfund site breakdowns and EPA’s approval of using toxic sewage sludge containing heavy metals and other dangerous materials in fertilizer distributed for free to farmers. In a scathing ruling earlier this year, a federal district court in Georgia upheld farmers’ claims that the sludge ruined crops and contaminated their farmland (McElmurray v. USDA), finding –
“The EPA’s unexplained rejection of Kaufman’s [public health] position…was not based on substantial evidence….The administrative record contains evidence that senior EPA officials took extraordinary steps to quash scientific dissent, and any questioning of the EPA's biosolids program.”
“At this hearing, EPA itself will be on trial for some of its most irresponsible actions,” stated PEER Senior Counsel Paula Dinerstein, who is assisting lead attorney Regina Markey in the Kaufman case. “The value of an independent ombudsman at EPA has only increased with the passage of time.”
The decision in this case by the administrative law judge is subject to appeal first to the Administrative Review Board of the Secretary of Labor and then to a federal appeals court. As a result, the fate of a National Ombudsman Office may be one of the early decisions facing the next administration seeking to reform a very troubled EPA.
View the Kaufman complaint
See Christie Todd Whitman decision e-mail
Read the McElmurray toxic sludge federal district court ruling