Whistleblower Protection at TOCDF

Do you have concerns about the safety of
TOCDF, but are not sure what to do?

The law is clear: your employer cannot retaliate against you for raising safety and environmental issues in good faith!

Two former EG&G employees, a Safety Manager and a Hazardous Waste Coordinator, lost their jobs because they raised safety concerns. Both were awarded court rulings stating EG&G's retaliatory actions were illegal. Other EG&G employees have revealed safety problems at the plant, some of whom have settled their cases out of court.

The Chemical Weapons Working Group (CWWG), a coalition of citizens living near chemical weapons stockpile sites, is concerned with the public health and environmental risks associated with incineration. We support the implementation of safe, non-incineration disposal technologies at all stockpile sites.

If you are concerned about plant safety or potential violations of law, or if your job status has been threatened for raising such concerns, you are not alone. Legal consultation and support is available to employees who wish to voice safety concerns.

Call 1-859-321-1586 any time for help. Your call will be answered by one of the attorneys representing the CWWG who is highly knowledgeable about TOCDF issues. Anonymity and confidentiality is guaranteed.

Whistleblowers are protected by Federal Law

The underlying purpose of employee (whistleblower) protection laws is to allow employees to report or testify about employer actions which are illegal, dangerous or violate specific public policies without the employee suffering retaliation from the employer for doing so. In passing whistleblower protection provisions, Congress has

repeatedly recognized the importance of encouraging such speech. The best source of information about what a company is actually doing or not doing is often its own employees.

Following are some of the federal laws that protect you and your fellow workers as potential employee whistleblowers.

Constitutional Protection

Under the First and Fourteenth Amendments to the U.S. Constitution, state and local government officials (including the Army) are prohibited from retaliating against employee whistleblowers who speak out about an environmental or safety concern of public importance.

Environmental Law Statutes

The employee (whistleblower) protection provisions of the Federal environmental and occupational safety laws protect almost all employees from reprisal for reporting public safety, worker safety and/or environmental violations. The Solid Waste Disposal Act (a.k.a. RCRA)--42 U.S.C. § 6971; the Federal Water Pollution Control Act (a.k.a. Clean Water Act)-- 33 U.S.C. § 1367; the Toxic Substances Control Act--15 U.S.C. § 2622; and the Clean Air Act--42 U.S.C. § 7622, among other federal environmental laws, offer similar protections to employees. Your basic rights and the initial procedures required to exercise your rights under these laws are summarized below.

• Who may file? An employee who believes he or she has been discriminated against (retaliated against by being demoted, fired, harassed, given a poor evaluation, etc.) by an employer in violation of any of the environmental statutes (that is, the action by the employer against the employee was motivated by the employee having raised a safety or environmental concern with management, the government, OSHA, EPA, the media or a citizen group) may file or have another person (including an attorney) file on his or her behalf a complaint alleging such discrimination.
• Time of filing (deadline). Any complaint must be filed within 30 days after the occurrence of the violation. A complaint filed by mail shall be deemed filed as of the date of mailing.
• Form of filing. No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation (the details of the retaliation by the employer and the environmental or safety concerns raised by the employee that led to the retaliation).
• Place of filing. A complaint may be filed in person or by mail at the nearest local office of the Occupational Safety & Health Administration, listed in most telephone directories under U.S. Government-Department of Labor. A complaint may also be filed with the Office of the Assistant Secretary, OSHA, U.S. Department of Labor, Washington, D.C. 20210.

How could employees benefit from filing a complaint?

A Department of Labor Administrative Law Judge could order:

• reinstatement and back pay if applicable;
• compensatory damages for emotional distress or actual out-of-pocket expenses;
• payment of attorney fees and any expenses from lawsuit or complaint; and
• punitive or exemplary damages (a monetary award beyond the the employee's actual losses, large enough to punish the employer for the misconduct and deter the employer from engaging in similar conduct in the future).

Occupational Safety & Health Administration (OSHA) Regulations

OSHA--29 U.S.C. § 660(c) protects employees from any form of retaliation for raising complaints concerning workplace health and safety. Workers who believe they were unfairly treated because they complained about unsafe or unhealthy working conditions can file a complaint with OSHA. If, upon investigation, OSHA finds the allegation has merit, OSHA attempts to negotiate a settlement between the worker and employer. Although the complainant may be represented by outside counsel, only OSHA has the right to prosecute the whistleblower's OSHA complaint in court.

• Who may file? A complaint may be filed by the employee him or herself, or by a representative authorized to do so on his or her behalf.
• Time of filing. An employee who believes that he or she has been discriminated against in violation of OSHA regulations may, within 30 days after such violation occurs, file a complaint with the Secretary of Labor.
• Form of filing. No particular form of complaint is required.
• Place of filing. Complaint should be filed with the Area Director (OSHA) responsible for enforcement activities in the geographical area where the employee resides or was employed.

Federal Whistleblower Protection Act

Congress enacted the Whistleblower Protection Act of 1989 (Public Law No. 101-12) to strengthen protections for Federal employees who claim that they have been subjected to personnel actions because of their whistleblower activities. Whistleblowing under the Whistleblower Protection Act means disclosure of information that an employee believes is evidence of a violation of law or gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.

Federal employees have the right to appeal certain retaliatory actions taken against them to the Merit Systems Protection Board (MSPB). Appeals must be filed in writing with the Board's regional office serving the area where your duty station was located when the action was taken. Appeals must meet the filing deadlines, which depend on the kind of appeal being made. For more information, copies of the Board's regulations are available at any Board office, agency libraries, agency personnel or administrative offices, most public libraries and the national Union.

The regional MSPB office for Utah is: Denver Field Office, 12567 W. Cedar Drive, Suite 100 Lakewood, CO 8022, 303-969-5101, Fax 303-969-5109.

Protection from gender, age, race or disability discrimination

Several federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act and Age Discrimination in Employment Act provide employees with additional protections against certain types of discrimination.

If an employee believes he or she has been discriminated against by an employer because of race, color, sex, religion, national origin, age or disability, he or she may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Charges may be filed in person, by mail or by telephone by contacting the nearest EEOC office. If there is not an EEOC office in the immediate area, call toll free 800-669-4000 or 800-669-6820 (TDD) for more information. Charges must be filed with EEOC within 180 days of the alleged discriminatory act.

TOCDF Workers:
Are you being exposed to unnecessary health risks?

TOCDF workers are at risk of nerve agent exposure.

CWWG is concerned because at TOCDF there have been numerous common stack and furnace duct ACAMS alarms, and several "unusual occurrences" of ACAMS reading agent in observation corridors. There have also been detections of agent by ACAMS between the carbon filters in the HVAC system, and failures of various components of the HVAC system.

Even more disturbing is the recent, March 30, 1998, metal parts furnace (MPF) shutdown. This MPF incident, based on the evidence available to CWWG, appears to have involved a major release of nerve gas (agent GB or Sarin) from the common stack. The MPF duct ACAMS read more than 511 Allowable Stack Concentration (ASC) during the incident. The Army and EG&G say that the stack ACAMS did not alarm and the duct ACAMS alarm was not confirmed for agent. However, it is CWWG's understanding that: 1) there is no DAAMS unit located with the MPF duct ACAMS; and 2) the stack ACAMS and DAAMS units may not have been on-line or in proper condition to determine the nature of the release at that specific time.

Even if the Army and EG&G could prove that the chemicals released in this and other stack alarm incidences were not chemical warfare agents, a serious concern still exists. In deposition and court testimony, Army and EG&G officials stated that, although chemicals are being emitted, they do not know the identity or toxicity of these chemicals.

CWWG is also concerned because TOCDF agent monitors are only setup to read one specific chemical agent at one time. Therefore, other chemical agents such as Lewisite and mustard agent could be present at levels capable of affecting workers' health, while TOCDF monitors are not capable of detecting these agents. The on-going and frequent occurrence of "hot cut-outs" at TOCDF increases this concern.

CWWG is also concerned about other employee-reported agent exposure risks at TOCDF. These concerns include:

• 1) workers life-support supplied air hoses (used during DPE entries) have become contaminated with nerve agent GB;
• 2) employees have become acutely ill on the job at TOCDF during DPE entries (while in protective suits), requiring the workers to be sent home or for medical treatment, and;
• 3) some employees, after being involved in a hot cut-out incident (where the protective suit must be removed in an air lock while a monitor shows agent is still present), have had their bodies monitored after suit removal and the monitor still indicates the presence of agent.

Do you exhibit any of the symptoms of exposure to agent?

Signs and symptoms of exposure to nerve agents such as GB (sarin) include: pin-pointed pupils, drooling, sweating, easy fatigue and weakness, headaches, confusion, diarrhea-like symptoms, convulsions, and coma.

Signs and symptoms of exposure to mustard agents and Lewisite include: skin blisters or rash, swollen eyes, respiratory problems, and deterioration of the immune system. Delayed effects may be manifested years after exposure ends. Cancer may also result from exposure to mustard agents.

Prioritizing production over safety creates worker risks.

JACADS is the prototype chemical warfare disposal facility upon which the design of TOCDF was based. JACADS is still in operation on Kalama Island (or Johnston Island). In November 1997, a JACADS employee died in an accident while performing repair work. He had not been properly trained regarding certain modifications to the DFS feed chute, which involved installation of an expansion joint, a heavy piece of metal that is not anchored on one end. The employee hooked a come-along to this piece after removal of the tipping valve (which, unknown to the employee, left the expansion joint unanchored) and the piece was pulled down on top of him. CWWG believes that this tragic death was preventable. CWWG believes that this unfortunate incident is an example of the larger risk problem at TOCDF and JACADS as the result of

• 1) Army and contractor management insisting on use of a flawed technology -- incineration, and
• 2) management placing production over safety concerns.

CWWG is also concerned that TOCDF management is covering up the extent of lost-time job related accidents and illnesses at TOCDF by failing to timely and accurately report these events, mischaracterizing them, and not providing proper and timely medical examination and treatment or necessary rest to employees who become ill or are injured on the job. CWWG is also concerned about the stress levels to which employees are exposed at TOCDF.

In November and December 1996, an investigation by TOCDF's Employee Safety Committee found that 100% of respondents reported low morale and/or high stress. Following is a sampling of anonymous feedback through the Committee's survey:

• "A great deal of stress is being caused by mandates to perform to schedules workers know can't be met."
• "The attitude and ability of management gives all employees the feeling of riding out a very slow train wreck"
• "Everyone here is afraid they will lose their jobs if they say anything."
• "Safety issues are voiced to supervisors and no action is taken."

TOCDF employees have raised concerns about risks to workers.

If you decide to speak out (or to speak confidentially to EPA, OSHA, the press or CWWG), you will not be the first TOCDF employee to have raised environmental or safety concerns.

A TOCDF Quality Assurance Specialist wrote in 1996 that "It is a very dangerous position to be found in on restarting [TOCDF agent operations] at the sacrifice of safety, quality and the environment," and "...my biggest problem is the fact that I think this plant is going to kill some one [and] I am helpless to prevent it."

Former General Manager Gary Millar in 1996 wrote "The TOCDF facility cannot be operated safely in the long-term by EG&G with the present management staff experience and 'mindsets.' If these issues are left unaddrsesed, another Three Mile Island or Challenger type of accident at TOCDF could occur." Millar also wrote "I strongly believe that...EG&G management attitude puts the employees and public at undue risk."

Former TOCDF Health Technician James DeHaven revealed to his superiors a pattern of heart irregularities among plant employees. DeHaven resigned in February 1997 after being repeatedly harassed for raising his health concerns. DeHaven stated in 1997 that "I believe that workers' safety at TEAD, DCD and the downwind communities is compromised, and that this is being kept secret. I believe there is significant risk that should an accident occur, the potential exists for a greater number of casualties than any other accident in American history."