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Judge sides with EPA whistleblower

Oct 6, 2000
Tom Henry, Jim Drew
Toledo Blade

MARION -- A state regulator who lives in Toledo has won a $138,000 settlement and convinced a federal judge he was wrongly punished for being forthcoming about the early stages of the biggest environmental investigation in Ohio’s history.

Paul Jayko, employed since 1991 as a site coordinator at the Ohio Environmental Protection Agency’s district office in Bowling Green, must be reinstated to the leukemia investigation he helped start in 1997 at the River Valley junior high/high school campus two miles east of Marion, O., according to a ruling. The 106-page ruling that contains some 330 findings of fact was issued by Judge Thomas F. Phalen, Jr., an administrative law judge in Cincinnati who hears U.S. Labor Department cases.

The judge said in his ruling he agreed with Mr. Jayko’s assertion that the agency violated federal whistleblower laws by reassigning him in the summer of 1998 after he exposed sensitive facts about the case.

In addition, the judge:

  • Ordered state officials to pay Mr. Jayko $48,000 in lost overtime and regular wages, $45,000 in punitive damages, and $45,000 for emotional distress
  • Ordered the agency to pick up his legal fees. His attorneys - Dennis Muchnicki of Columbus and Michael Kohn of Washington - said they have not tabulated the amount, but Mr. Muchnicki said "you can quote me as saying it will be a six-figure legal bill."
  • Ordered the agency district office in Bowling Green and its headquarters in Columbus to post notices of Mr. Jayko’s reinstatement on the Marion case for at least 90 days.
Whistleblower laws are intended to protect people from their employers when they bring safety-related issues to light.

Mr. Jayko is the first Ohio EPA employee to test those laws. His case was taken on by the National Whistleblower Center, a Washington group that assists in the legal defense of employees who seek whistleblower protection.

Ohio EPA Director Chris Jones, a lawyer in the state attorney general’s office when Mr. Jayko was reassigned, said yesterday he doesn’t agree with management decisions that were made.

"But they were made, and I wasn’t there when they made them. I don’t know what the process was," he said.

Even so, Mr. Jones said the agency will appeal because it does not believe illegal conduct occurred. "What was alleged is that Mr. Jayko wanted certain tests done, and a decision was made not to do those tests. That was a judgment call," he said.

An appeal would be heard by the Labor Department’s administrative review board in Washington.

Mike Griffith, a geologist and member of an activist group called Concerned River Valley Families, disagreed with the Ohio EPA director’s view. "A judge has very meticulously outlined what we had suspected. Reality has hit us in the face like a brick. It will be disgustingly absurd if the state appeals this decision," he said.

Mr. Jayko said he had no comment beyond statements released through Mr. Muchnicki.

One of the statements quoted Mr. Jayko as saying: "It’s still so hard for me to believe that my supervisors could go so far as to set me up, frame me, and destroy my whole life. ... I just tried to do my job and tell the truth."

The River Valley investigation, the largest undertaken by the Ohio EPA since it its creation in the 1970s, centers on a suspected leukemia cluster in Marion. The school was built in 1962 on 78 acres the military used to burn or bury tons of highly toxic chemicals years before.

An Ohio Department of Health study has shown Marion’s overall cancer rate is only slightly above normal, but that leukemia - one of the rarest forms of cancer - is 21/2 times higher than what would be expected among 5,345 students who have graduated from River Valley since 1963.

Officials have not determined whether the former military dump is to blame, but the school district has negotiated a multimillion-dollar package to build a new campus.

The case has been compared by activist Lois Gibbs to the landmark Love Canal case that resulted in 900 families being evacuated from their homes in Niagara Falls, N.Y., in the late 1970s, because of chemical contamination. Ms. Gibbs is a former housewife who brought Love Canal to national prominence in a case that inspired the U.S. EPA’s Superfund cleanup program.

Members of Concerned River Valley Families rejoiced upon hearing Mr. Jayko had been vindicated, saying he is one of the few government officials they trusted. As Mr. Griffith’s wife, Jodi, put it: "Paul Jayko was the kind of [Ohio] EPA employee you always hoped you would have."

At the same time, group members raised questions about the recent dismissal of a nationally-known toxicologist from the University of Pennsylvania who was brought in to provide an independent review of the Marion case this year.

Dr. Bruce Molholt told a Marion advisory board July 27 that the campus was not safe to reopen this fall, even in the short term. Shortly thereafter, the Ohio EPA went on record disputing what he said.

On Sept. 28, the advisory panel - funded by the U.S. Army Corps of Engineers to bring in outside experts - voted on whether to renew the contract of J.R. Kolmer, who had brought in Dr. Molholt for the toxicology analysis. A majority was necessary to renew the contract, but the panel deadlocked 6-6, effectively ending the community’s relationship with Mr. Kolmer and Dr. Molholt.

"I guess what they’re saying is that they don’t want to hear what the experts have to say unless they agree with them," Ms. Griffith.

Said Kim Tolnar, a 1983 River Valley graduate who developed leukemia, "They did it with Paul Jayko, and now they’re trying to do it with Bruce Molholt. Every time there’s someone trying to talk about the risk to kids, they get suppressed by government agencies."

Ms. Tolnar and two other River Valley graduates who have developed leukemia - Jami Cummings and Amanda Lovett - yesterday sent a letter asking the governor to look into Dr. Molholt’s dismissal.

"We paid the price with our health, and we have experienced a tremendous loss of youth and time in fighting this deadly disease. Please don’t let more children pay the price," the letter states.

Ms. Tolnar’s mother, Roxanne Krumanaker, said in a prepared statement that it has "become blatantly obvious that the federal and state agencies, Marion leaders and River Valley school officials have misled and misrepresented the River Valley investigation."

Ms. Cummings’s mother, Linnea, agreed. She said the Jayko case "set the investigation back months, if not years."

Environmental groups responded to the Jayko decision by calling a news conference in Columbus yesterday.

"Paul Jayko is a hero," Marilyn Wall, the Ohio Sierra Club’s conservation chairman, said. "Over and over, we have found that Ohio EPA isn’t doing its job - isn’t enforcing the law - and the judge has now found this as well. It is time for real reform at Ohio EPA."