Three hundred thousand residents of Charleston, West Virginia are unable to use tap water because a chemical storage facility spilled 7,500 gallons of 4-methylcyclohexane methanol (MSHM), a chemical used to “clean” coal, into the Elk River.  This tragic incident highlights the need to update the Toxic Substances Control Act (TSCA), including the TSCA’s whistleblower protection provisions.

Incredibly, the EPA and the company that contaminated Charleston’s water supply have very limited data on the health risks posed by MCHM.   And the site of the chemical spill has not been inspected since 1991.   According to theEnvironmental Defense Fund, TSCA has fundamentally failed to protect the public against harmful chemicals.  Due to a nearly impossible burden on the EPA to prove actual harm in order to control a dangerous chemical, the EPA has required testing of approximately 200 of 30,000 chemicals and has succeeded in mandating restrictions on the production or use of only five substances.  In addition, TSCA enables chemical companies to conceal safety and health data from the public  by designating all submissions to the EPA as confidential business information.

Hopefully, the chemical spill in Charleston will spur Congress to act on pending legislation that would strengthen chemical testing and regulation.  But the proposed TSCA reform legislation is missing a critical element – a much-needed update of TSCA’s weak whistleblower protection provision.

TSCA’s whistleblower protection provision ostensibly protects whistleblowers from retaliation for reporting violations relating to violations of TSCA or for assisting or participating in a proceeding to carry out the purposes of TSCA .  But the statute of limitations is just 30 days and the burden of proof for the whistleblower is higher than the burden of proof imposed on whistleblowers in most analogous whistleblower protections laws administered by the Department of Labor.

In reforming TSCA, Congress should update TSCA’s whistleblower protection provision to include the following features that have become standard in most of the whistleblower protection laws that Congress has enacted in the past decade:

• The causation standard should be contributing factor, i.e., the whistleblower prevails by proving that protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.
• Once the whistleblower proves that protected conduct was a contributing factor in the adverse action, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee’s protected conduct.
• Extend the statute of limitations to at least 180 days.
• Authorize preliminary reinstatement, i.e., the employer would be required to reinstate the whistleblower at the conclusion of an OSHA investigation finding that the employer violated the TSCA whistleblower protection provision.
• Offer whistleblowers the option to remove their claims from the Department of Labor to federal court to try their claims before a jury.
• Eliminate the “duty speech” loophole to ensure that employees who blow the whistle in the ordinary course of their job duties are protected.

When an independent investigation was performed of the explosion at the Upper Big Branch Mine in West Virginia that killed 29 workers, the investigators found that a culture of fear and intimidation contributed to the explosion.  Miners were discouraged from reporting safety violations and miners who disclosed safety issues were fired or ostracized.   In order for TSCA reform to be effective, whistleblowers in the chemical industry must be protected against retaliation.

This article was originally printed on Whistleblower Protection Law Blog on January 15, 2014.  Reprinted with permission.

About the Author: Jason Zuckerman is Principal at Zuckerman Law (www.zuckermanlaw.com)  and represents whistleblowers nationwide.  He is the author of the Whistleblower Protection Law Blog (www.whistleblower-protection-law.com).