Whistleblower Vindicated in Federal Law Judge Decision

A federal administrative law judge has ruled that the U.S. Bureau of Land Management (BLM) illegally fired one of its employees for blowing the whistle on environmental and worker safety hazards at an abandoned Nevada copper mine.

Earle Dixon, who was hired by BLM in October 2003 to manage the cleanup of hazardous materials at the Anaconda Mine near Yerington, Nev., filed a complaint with the Department of Labor after BLM dismissed him on Oct. 5, 2004. When an OSHA regional administrator determined BLM had legitimate business reasons for firing Dixon, Dixon filed an appeal with the Department of Labor's Office of Administrative Law Judges.

Dixon argued that BLM terminated him because he voiced concerns that the Anaconda Mine cleanup efforts were not being conducted in compliance with environmental laws such as the Safe Drinking Water Act and the Comprehensive Environmental Response, Compensation and Liability Act. Dixon also claimed that he clashed with BLM and other parties involved in the mine cleanup because Dixon believed BLM safety and health policies were being ignored, putting workers at risk of exposure to radiological hazards.

Administrative Law Judge Richard Malamphy, who presided over a 3-day hearing in February in Reno, Nev., ruled Aug. 31 that BLM fired Dixon in retaliation for his whistleblowing activities. Malamphy ordered BLM to award Dixon back pay as well as $10,000 in moving expenses. The judge also ordered BLM to provide Dixon "a favorable or at least a neutral job reference."

Since Dixon's job with BLM was a 2-year appointment with a possible extension to 4 years Malamphy ruled that "reinstatement is not an issue."

EPA Pushed for Superfund Listing

The Anaconda Mine site covers more than 3,400 acres in central Nevada, located approximately 65 miles southeast of Reno.

The Anaconda Copper Co. conducted mining and milling operations at the mine from 1941 to 1978, according to EPA. In 1977, the Atlantic Richfield Co. (ARCO) bought Anaconda but a drop in copper prices, among other reasons, forced ARCO to close the mine in 1978.

The most recent owner of the mine, Arimetco, processed copper at the site from 1989 through the late 1990s, when the company filed for bankruptcy and abandoned the site.

According to EPA, Anaconda mining operations generated approximately 360 million tons of ore and debris from its open pit; 15 million tons of overburden; 400 acres of waste rock; 3,000 acres of contaminated tailings; 1,377 acres of disposal ponds; 850,000 tons of copper metal; 162,000 tons of oxide and sulfide ore; and 189,000 tons of waste.

Contamination of the local groundwater which was one of the concerns allegedly voiced by Dixon to state and federal officials is mentioned as one of the "major threats" that could impact human health and surface water, according to EPA.

"The U.S. Geological Survey described a groundwater plume of arsenic, cadmium, cobalt, copper, iron, lead manganese, mercury, molybdenum, selenium and zinc below the site and migrating northward," EPA states on its Web site. The agency adds that studies conducted by NDEP in the late 1970s and 1980s "discovered that contamination from the mining, milling and metal salvaging operations had migrated into the groundwater, forming a contaminant plume."

EPA says it proposed placing the Anaconda site on its national Priorities List as a Superfund site but acknowledges state and local officials opposed such a move. In Malamphy's opinion, he notes that NDEP, the Lyon County Commissioners and state officials objected to a Superfund designation "due to the stigma and economic harm a community experiences as a result of such a listing."

To avoid moving in the direction of a Superfund designation, NDEP in March 2002 signed a memorandum of understanding with EPA and BLM to coordinate cleanup of the site between the three agencies.

However, in late 2004, "NDEP requested that EPA take the regulatory lead at the site, due to the increased complexity of contaminants at the site such as radioactive contamination," according to EPA.

Supervisor Recommended Dixon for Continued Employment

BLM, in its response to Dixon's complaint with the Office of Administrative Law Judges, argued that "[l]ong-standing disagreement by local, state and federal political leadership over whether to have the mine site listed on the National Priorities List" played a role in the "legitimate business reasons" for firing Dixon. BLM said the interagency squabbles made it difficult for former BLM Nevada Director Robert Abbey who fired Dixon to "settle on an ideal strategy for BLM's involvement as the lead regulatory agency."

BLM painted Dixon as a troublemaker who "would not recognize the need for fostering consensus or respectful disagreement under the [interagency] partnership" and who "alienated key players in the partnership after only several months on the job," Malamphy summarized in his opinion.

However, at the February hearing, Dixon's co-workers at BLM and colleagues from other federal and state agencies described Dixon's dogged efforts to bring the Anaconda site into environmental compliance.

Dixon, at the hearing, acknowledged that he spoke publicly about test results showing high levels of radiation at the mine that he believed were not naturally occurring and also blasted NDEP and the state of Nevada for conspiring to cover up the hazards at the site. Dixon testified that in June 2004, Abbey threatened to fire him, and Dixon agreed to attend a course on communication skills in order to keep his job.

Still, Dixon's first-, second- and third-line supervisors also testified that from June 2004 until Dixon's termination, they found Dixon was performing his job duties as required. His immediate supervisor, Chuck Pope, in September 2004 signed a form stating that Dixon had passed his 1-year probationary period and recommended his continued employment.

Dixon Lawyer: Government "Not Above the Law"

Richard Condit, general counsel for Public Employees for Environmental Responsibility and co-counsel for Dixon, called Malamphy's ruling "both a victory for Earle Dixon and for the idea that the federal government is not above the law."

"The people of Nevada should now be asking hard questions about whether they are being put at risk by the very public agencies that are supposed to be protecting them," Condit said.

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