A veteran U.S. EPA whistle-blower will get his day in a federal appeals court tomorrow.
Hugh Kaufman, who currently works for the Office of Solid Waste and Emergency Response, will argue at the U.S. Court of Appeals for the District of Columbia Circuit that EPA unlawfully retaliated against him for his work in the agency's now-defunct ombudsman office from 1998 to 2000.
Kaufman claims that a series of public hearings he held as the ombudsman's chief investigator of Superfund and other hazardous waste sites "pissed off" EPA's management. Ultimately, he said, the agency abolished the ombudsman's office, transferring those responsibilities to the inspector general's office.
"They moved it to the IG," Kaufman said in an interview. "Then they told me, 'You cannot apply for the IG doing ombudsman work.'"
He added: "They tried to stop me, and they had to find all types of excuses."
Kaufman has been a controversial figure at EPA for some 40 years and a legend among federal whistle-blowers. A former Air Force captain, Kaufman has in recent years spoken out about toxic chemicals to which cleanup workers were exposed after the 2010 Deepwater Horizon oil spill. He made similar remarks about ground zero first responders after the 2001 terrorist attacks on the World Trade Center in Manhattan (Greenwire, Jan. 6, 2011).
Tomorrow's case, which has been ongoing for a dozen years, focuses on fewer than 10 public hearings that Kaufman oversaw during his time with the ombudsman office. The hearings occurred across the country and typically centered on allegations that EPA wasn't doing enough to clean up toxic waste.
Some allegations are strong. According to court documents filed by the Labor Department, Kaufman at times claimed EPA was in collusion with the party responsible for pollution. At one hearing, he claimed the public was being "used as pawns" by EPA. In another he compared EPA to the Soviet Union.
The hearings led EPA to conclude Kaufman "did not always perform his Ombudsman duties in an objective, impartial, and civil manner."
Further, he "demonstrated a blatant lack of objectivity" and was "aimed at inciting public angst, rather than objective fact-finding."
The agency would not comment on the lawsuit, referring press requests to the Labor Department. Labor did not return requests for comment in time for publication.
Arguments tomorrow will focus on whether Kaufman's retaliation claims are moot because he took too long to file them. Initially, the Labor Department found Kaufman's claims to have merit and said EPA retaliated against him for being "too effective" in the ombudsman office.
However, an administrative law judge, on appeal, dismissed Kaufman's claims in 2009, ruling that he took too long to file them under relevant environmental statutes. The judge also held that Kaufman was retaliated against not for whistle-blowing but for criticizing EPA employees.
To which Kaufman replied: "That's what whistle-blowing is!"
Kaufman also claims the judge erred by viewing his retaliation claims collectively, instead of one at a time.
The case also highlights what many lawyers consider insufficient protections for government whistle-blowers.
Gary Baise, a lawyer who served as EPA's first chief of staff, said Congress has not done enough to assure whistle-blowers -- and potential whistle-blowers -- will not face retaliation.
Kaufman echoed that sentiment, noting that his case has taken 12 years to resolve so far and there is no end in sight.
"This thing may not come to ultimate resolution for another 10 years," he said. "You're talking about over 20 years of litigation to try and resolve a whistle-blower dispute gentlemanly. That means for all intents and purposes, there really are no whistle-blower protections."
Baise said Kaufman's work shouldn't be simply dismissed.
"There is always a kernel of truth in some of his stuff," Baise said, "but you never know if it's the whole story."
Kaufman said he doesn't want money from the lawsuit. He was in talks to settle the case for a small sum before EPA's lawyers pulled out of the negotiations. He said he likes his current job and has "a great boss now."
Asked what he hopes will come of the lawsuit, Kaufman said he hopes for a return of the ombudsman.
"Ultimately, maybe we can get an ombudsman function back," he said. "That would be nice."