Protection for Federal Water Pollution Control Act Whistleblowers
The Federal Water Pollution Control Act regulates the discharge of pollutants into water in the United States. The Act makes illegal the discharge of any pollutant from a point source into any navigable water unless a permit is first obtained. The Act also establishes surface water quality standards for contaminants.
Under Section 507 of the Act, employees are protected from discrimination or firing by their employer for participating in a proceeding to enforce any requirement of the Act. Section 507, 33 U.S.C.S. § 1367, provides:
No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.
While the Environmental Protection Agency administers the general provisions of the Federal Water Pollution Control Act, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 507 occurs (although that deadline may be tolled if the discrimination is continuing in nature).
Section 507 of the Federal Water Pollution Control Act protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the Federal Water Pollution Control Act. An employee’s complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under the Act.
Actionable discrimination under the Act is viewed broadly and includes not only termination from employment but also any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee’s participation in a Federal Water Pollution Control Act proceeding.
Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted, is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.
Remedies for the employee include abatement of the discrimination and rehiring or reinstatement of the employee or representative of employees to his former position with compensation. The employee may also be awarded all costs, including attorney fees, incurred in obtaining an abatement order.
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