Why Congress Must Extend Whistleblower Protections to Government Contractors

With the recent presidential election, violence in the Middle East, and intense natural disasters prominent in the current news cycle, it’s understandable that major legislation is getting overlooked. However, there is one bill in particular that the public should keep its eyes on due to its potential impact on all aspects of our politics, like government accountability, immigration, and even public health: S. 1524, the Expanding Whistleblower Protections for Contractors Act.

Although there is existing legislation aimed at protecting government contractors, it is lackluster at best. Contractors can still face roadblocks on the way to truth-telling, such as limited jury trials, blacklisting, retaliation, and even a dearth of protections for refusing to violate the law. However, the Expanding Whistleblower Protections for Contractors Act increases protections for jobs funded by taxpayer dollars and closes these loopholes for federal contractors to build greater transparency in our government.

To find a case study on the importance of this legislation, one needs to look no further than the February 3, 2023 Norfolk Southern train derailment in East Palestine, Ohio, which sent forever chemicals and combustible materials, such as vinyl chloride (a toxic flammable gas), across the community and temporarily displaced 1,500 to 2,000 people. Three days later, authorities burned 116,000 gallons of vinyl chloride and other highly toxic chemicals from five tankers, sending a dense black toxic cloud over the entire region that could be seen from space. It was recently determined that the toxic fallout of materials from the derailment and burn have been detected in 16 states.

Less than a day after the derailment, the Environmental Protection Agency (EPA) failed to follow procedures to fly its Airborne Spectral Photometric Environmental Collection Technology (ASPECT) plane for data collection of chemical levels in the area. Had it done so, the agency could have determined that the chemicals in the unexploded tanks were cooling and no longer posed a threat of explosion, making the so-called “control burn” unnecessary and its fallout avoidable. In fact, the ASPECT plane remained grounded for five days until the toxic cloud had dissipated. In the aftermath of the derailment, Dr. Robert Kroutil, an EPA contractor with Kalman & Company and a key developer in the ASPECT program, was concerned about the inordinate and unnecessary delays.

With improved and stronger whistleblower protections, Dr. Kroutil would most likely not have been forced into retirement because of the threats. He could have stood his ground while still on the job.

When he finally received data to analyze, he was shocked that the plane only collected data for seven minutes when more typical flights would collect hundreds of minutes of data. He also learned that the sensors were turned off when the plane flew over creeks, waterways, and the crash site itself. He and his fellow scientists reported that the presence of contamination was inconclusive. A few weeks later, the EPA used this report to conclude that the data collection was a success, and it was safe for residents to return to their homes when in fact the reason the results were inconclusive was because the EPA failed to collect the necessary data. Dr. Kroutil was so upset about what was happening, he filed a Freedom of Information request for documents such as back-dated flight plans. When he was threatened with termination unless he withdrew his requests, he decided to retire and go public with his revelations. He had no faith in the current, inadequate legal protections. The EPA retaliated by calling his claims “false” within minutes of hearing about them. The Office of Inspector General has determined, however, that a full investigation of his concerns is warranted, supported by many other whistleblowers.

With improved and stronger whistleblower protections, Dr. Kroutil would most likely not have been forced into retirement because of the threats. He could have stood his ground while still on the job. Unfortunately, similar events have already occurred surrounding the failure to deploy the ASPECT aircraft.

Since his disclosure of EPA’s mismanagement, two train derailments in Illinois and North Dakota have resulted in the spill of hazardous chemicals and mirror problems with the response to the derailment in East Palestine. In both incidents, the EPA failed to deploy its ASPECT chemical sensing aircraft to collect data. Instead, ASPECT at the time of the derailments was performing a nonemergency assessment near Buffalo, New York, collecting data on a legacy contamination issue from World War II.

With thousands of government contractors working tough jobs for our protection—from ensuring our food is safe to eat and defending us from foreign attacks to mitigating the impact of disasters like the derailment in East Palestine—it’s time we start protecting them too. The laws aimed at allowing contractors to speak truth to power must be modernized and repaired to make whistleblowers less vulnerable to retaliation. That is why we should pay attention to the Expanding Whistleblower Protections for Contractors Act of 2023, first introduced by Sens. Gary Peters (D-Mich) and Michael Braun (R-Ind.) and passed out of committee on a bipartisan basis, which would address the shortcomings in the current law.

Government contractors like these have a long history of saving thousands of taxpayer dollars, exposing our government’s wrongdoing, and, as in this case, saving countless lives; to be effective, laws that protect whistleblowers must encourage employees of conscience to speak up and deter employers from retaliating against them for doing so. If the Expanding Whistleblower Protections for Contractors Act is passed, more contractors could feel empowered to stand up for what is right with crucial information. Government Accountability Project is committed to continuing advocacy for greater whistleblower protections for government contractors and a more fair and transparent government.