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EPA to appeal critical ruling in River Valley probe
Agency says employee transfer was not punishment
Friday, October 6, 2000
Ohio EPA Director Chris Jones said yesterday that he'll fight a ruling that sharply criticizes the Environmental Protection Agency's handling of an investigation into contamination at River Valley schools in Marion.
Thomas F. Phalen Jr., a federal administrative-law judge based in Cincinnati, ruled earlier this week that the agency illegally punished Paul Jayko, the former coordinator of its Marion probe, for writing memos that took issue with the way top EPA officials were handling the investigation.
Phalen granted Jayko protection under federal whistle-blower laws and ordered the agency to immediately reinstate him as the lead investigator in Marion. But it appears Jayko won't be returning soon because the agency appealed the decision to a U.S. Department of Labor review board.
Trying to separate legal issues in the case from questions about the agency's credibility, Jones said critics are ignoring the "different approach'' to the investigation since Gov. Bob Taft appointed him to lead the agency in January 1999.
He noted that events disputed in the Jayko case occurred during former Gov. George V. Voinovich's tenure, during which Don Schregardus was EPA director.
"We certainly understand that we have to address the credibility issue,'' Jones said. "But this is not a whistle-blower case. We have not covered up anything and we will not cover up anything.''
State officials began investigating contamination in the Marion area three years ago after parents told Jayko about higher-than- normal rates of leukemia among River Valley High School graduates. The school is on the site of a former military depot where chemical waste was dumped for years.
EPA officials moved Jayko to other projects in the agency's Bowling Green office a year later after they accused him of having "difficulty working with the investigation team and communicating effectively with other team members.''
The reassignment came after top EPA officials suspended Jayko for 10 days for drinking two beers before a public meeting -- punishment that Phalen ruled was groundless and was retaliation for memos written by Jayko that criticized the way his superiors were handling the investigation.
Jayko and others testified during an administrative hearing last year that other EPA officials rejected his calls for more thorough tests of the air, soil and water on the River Valley campus.
The agency later accepted many of Jayko's recommendations, including regular monitoring of air quality and tests for dioxin and other cancer-causing chemicals.
"That doesn't mean there was a violation of the law,'' Jones said. "We have to encourage people to look at what the facts are.''
This is the second time the agency has appealed a ruling that favored Jayko. In January 1999, the U.S. Occupational Safety and Health Administration reached the same conclusions as Phalen and granted Jayko whistle-blower protection.
Michael Kohn, general counsel of the National Whistleblower Center in Washington, D.C., called the latest appeal "frivolous in the extreme and contrary to well-established case law.''
"A greater waste of tax dollars is hard to imagine,'' he said.
Leukemia cases in Marion have not been tied to specific causes. After erecting fences around portions of the River Valley campus where contamination was found, state officials declared the high school and nearby middle school safe.
However, state and district officials are concerned enough by what they've learned to propose relocating the schools.
As Jones announced he was appealing Phalen's decision, a group of environmentalists and River Valley parents stood outside the Riffe Center in Downtown Columbus and urged the state to bring Jayko back to Marion.
"This has been a battle of David vs. Goliath and David has won,'' said
Mike Griffith, who transferred his son out of River Valley schools. "The
deception of the people of Marion needs to stop right here, right now.''
Copyright © 2000, The Columbus Dispatch