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For years, activist Adrienne Anderson has been a thorn in the side of bureaucrats who would rather bury the garbage of Colorado's past than make it public.
But this fall, that thorn came out smelling like a rose.
In May 1997, less than a year after Anderson had been officially confirmed as one of Denver's representatives on the board of the Metro Wastewater Reclamation District, a governmental entity that treats wastewater from over fifty municipalities and sanitation districts throughout the Denver area, she filed a complaint with the U.S. Department of Labor claiming that Metro had retaliated against her for engaging in protected activities. Specifically, for being a whistleblower, alerting the public to everything from conflicts of interests on the board to dangers at the Lowry Landfill.
This past September, Judge David W. DiNardi, the Massachusetts administrative-law judge assigned to hear Anderson's case, found in her favor. Anderson suffered "compensable harm as a result of her adverse treatment" by Metro, he determined. And she was entitled not just to compensatory damages -- $150,000 for injury to her professional reputation and another $125,000 for mental anguish caused by Metro's "continued egregious, discriminatory and disparate retaliation" over the past five years -- but also punitive damages of $150,000.
Those punitive damages are among the largest ever issued in the thirty-year history of environmental whistleblower case law, according to Stephen Kohn, chairman of the National Whistleblower Center in Washington, D.C. "When an administrative-law judge awards that kind of damage," Kohn says, "that is telling you that absolute gross misconduct existed."
But DiNardi didn't stop there. In addition, he recommended that Metro withdraw any negative references from Anderson's file, as well as send copies of the judge's lengthy September 18 ruling to a cast of characters including all Metro boardmembers, assorted Colorado officials and numerous media outlets, both local and national. And Metro was also to buy a full-page ad in the Sunday Denver Post, "issuing an apology to Adrienne Anderson for its illegal and retaliatory acts on behalf of workers' safety and health concerns over the Lowry Landfill Superfund Site discharge permit, which includes plutonium and other radioactive material" -- with the wording to be approved by Anderson's attorney.
The judge's own words might have been a good starting point.
"This entire case is about a dedicated, conscientious and public-spirited citizen," DiNardi said, "who, in following the tradition of Karen Silkwood, Erin Brockovich, A. Ernest Fitzgerald, Casey Ruud and others, has spent her entire adult life in pursuing union and environmental activities and in attempting to correct perceived wrongs and problems in society. Complainant's beliefs, in my judgment, are reasonable and well-founded, based upon her years of research into the problems and remedial action taken with reference to the so-called Superfund Sites by the state and federal governments."
The Superfund site that became the focus of this case was the Lowry Landfill, an old Army facility that the City of Denver took over in 1964, when it was used as a repository for everything from household garbage to pesticides to wastes from some of the area's biggest companies -- and many of its local governments. In 1984, the landfill was named a Superfund site and added to the federal government's list of the country's most contaminated sites. But more than a decade would pass before Denver arrived at a secret cleanup agreement with assorted entities responsible for dumping at the site ("The Lowdown on Lowry," April 12).
Part of that agreement called for the Metro Wastewater Reclamation District, which also had dumped at Lowry, to pump groundwater from the site, treat it, and then discharge the treated wastewater into the South Platte River. The sludge, or biosolids, that were produced in the treatment process would be sold as fertilizer -- MetroGrow -- and spread on Metro's property on the plains east of Denver.
"Complainant raised concerns about the safety and legality of the Lowry Landfill Superfund Site," DiNardi determined, "and thus began the hostile environment for the Complainant." In fact, Anderson mentioned the problems at Lowry at her first board meeting, in July 1996.
By the following summer, Anderson was claiming that the plan to pump groundwater out of the landfill would expose wastewater workers and the public to plutonium. "Environmental Protection Agency records and well reports show that there's plutonium in the groundwater from north to south and east to west," Anderson said. "They dumped radioactive water there from Rocky Flats" ("Sister Sludge," July 24, 1997).
By 1997, no one disputed that the groundwater contained a toxic mix of acid and alkaline sludge, solvents and pesticides. But the EPA flatly denied that there was any radioactive waste at the site.
"She hurls charges without much validity," Denver City Councilman Ted Hackworth, also a member of the Metro board, told Westword at the time. "When they put the effluent in the system, it will be monitored, and if it violates the standards, it won't be accepted. There's no threat to Metro or its workers or the people in eastern Colorado."
In giving that interview to Westword, Hackworth was not subject to the "disclaimer requirement" that Metro board chairman Dick Plastino had issued on April 16, 1997, threatening Anderson with censure if she failed to precede all of her public comments with a disclaimer that she was speaking only for herself.
Hackworth, who gave a lengthy deposition in Anderson's case, was cited in DiNardi's decision: "Mr. Hackworth testified that, in response to the issues raised by Ms. Anderson concerning the Lowry Landfill, other Board members commented: 'We never should have let her on this Board.' Mr. Hackworth admitted telling 'the individual that does the appointing' of Metro directors that 'he would hope that he didn't reappoint Adrienne Anderson."
Anderson wasn't reappointed -- but her mistreatment by Metro continued, the judge said.
At least one former boardmember agrees. "I, for one, was shocked and appalled at the way Adrienne Anderson was treated when she served on this board by MWRD's upper echelon, when she simply attempted to bring important information about worker safety and health concerns to our attention," former boardmember Al Levin wrote in a letter he distributed to the board at a meeting October 16. "From documents I have since reviewed, I now know that the majority of board members, including me, were kept in the dark about important facts about the Lowry deal by management and certain key MWRD leaders, who failed to disclose significant conflicts of interest over Lowry."
Metro plans to appeal DiNardi's decision.
"I think that they file this appeal at their own risk," Kohn says. "I have seen cases go from the tens of thousands into the millions because of the intransigence of the employer, and it looks like the Metro district is headed that way."
Ironically, some of the facts that were such a matter of dispute back in 1997 have been settled -- not by a judge, but by the Environmental Protection Agency. In a draft report released this summer, the EPA finally acknowledged that "the remedy in its present state is not protective of human health and environment" at Lowry. Among other problems, the EPA cited low levels of plutonium and other man-made radioactive contaminates in the site's groundwater.
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