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  • Ohio EPA files suit to block court order

    The agency contends it enjoys immunity from an employment complaint filed by a man who had criticized the probe into cancer rates in Marion.

    Saturday, October 7, 2000

    Michael Hawthorne
    Dispatch Environment Reporter

    Under fire for the way it has handled a toxic-waste investigation in Marion, the Ohio Environmental Protection Agency sued the federal government yesterday, claiming an order to reinstate an EPA whistle- blower is unconstitutional.

    The agency contends it enjoys "sovereign immunity'' under the Constitution from an employment complaint filed by Paul Jayko, an EPA site coordinator who sharply criticized the early stages of the probe into higher-than-normal rates of leukemia in Marion.

    Suing the federal government is the state's latest maneuver in a 2- year-old legal battle about Jayko. Earlier this week, an administrative judge rejected the EPA's appeal of a ruling that Jayko was illegally taken off the Marion investigation for questioning his bosses and demanding more-thorough pollution tests.

    The state also asked U.S. District Judge Edmund A. Sargus Jr. yesterday to block an order that the EPA immediately reinstate Jayko as leader of the Marion probe and pay him $138,000 in damages and lost wages.

    "It would be senseless to reinstate Mr. Jayko if in two, three or four weeks the court came to a different conclusion about his status,'' Jack Decker, an assistant attorney general, told Sargus.

    Jayko's attorney, Dennis Muchnicki, agreed not to press the issue before a Nov. 3 hearing on the state's request for a temporary restraining order. But Muchnicki argued that the EPA lost its legal shield by taking the case to Thomas J. Phalen Jr., administrative judge in Cincinnati.

    "They requested the hearing before the administrative judge, not us,'' Muchnicki said. "Now they want to go somewhere else because they lost.''

    Sargus was skeptical of the state's claims during a hastily assembled conference. Among other things, he asked Decker to address questions about whether the state was "venue shopping,'' or seeking any legal avenue it can find to block Jayko.

    EPA Director Chris Jones acknowledged earlier this week that the agency has a "credibility problem'' in Marion, but he questioned the legality of the order reinstating Jayko.

    In a scathing ruling Tuesday, Phalen said the EPA reassigned Jayko to other projects in the agency's Bowling Green office after pushing his supervisors to focus on immediate health threats and long-term sources of contamination in Marion.

    State officials began their investigation after parents told Jayko about an unusually high number of leukemia cases among graduates of River Valley High School, located on the site of a former military depot where chemical waste was dumped for years.

    "He knew that past (pollution) sources might be both inseparable and continuing, as a result of which he felt an obligation to pursue all avenues that were indicated by his investigation,'' Phalen wrote. "For this he was branded as not being a 'team player,' frozen out of important conferences and documentary distribution, and finally transferred.''

    In its request for a temporary restraining order, the state argues that case law allows the federal government to sue states on behalf of individuals, but it grants states immunity from litigation brought by individuals such as Jayko.

    The EPA later accepted many of Jayko's recommendations, including regular air monitoring and tests for dioxin and other cancer-causing chemicals.

    Jones argued that those decisions involved differences in management styles, not conduct that should afford Jayko protection under federal whistle-blower laws.

    "He wanted to do certain tests and the agency didn't do them,'' Jones said. "But there is no evidence that there was any violation of the law.''

    Although leukemia cases in Marion have not been traced to specific causes, the EPA, Ohio Department of Health and U.S. Army Corps of Engineers continue to investigate.

    State officials declared the high school and nearby middle school safe after contaminated areas were fenced off.

    School district voters next month will decide a bond issue that would provide money to move the middle- and high-school students into new buildings at another site.




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