Kalamazoo River Oil Spill Whistleblower Sues for Retaliation

A former employee of SET Environmental, Inc. filed suit against his former employer for whistleblower retaliation, alleging that he was terminated after telling the media and state and federal agencies about deficiencies in the cleanup of the Kalamazoo River oil spill.  The Kalamazoo Gazette reports that John Bolenbaugh filed suit against his former employer, SET Environmental, Inc., on November 9, 2011, and that a hearing for the case is scheduled for Monday in Calhoun County.

Bolenbaugh alleges in his lawsuit that he was fired because he “reported and threatened to further report to the EPA and other public bodies what he believed to be illegal activities relating to the improper cleanup efforts,” including “covering up oil, spreading out oil, and hiding spilled oil from the public and EPA.”  Bolenbaugh has published numerous videos on YouTube showing and describing areas that he alleges were improperly cleaned up or covered up.  Bolenbaugh states that he “saw a crime being committed by Enbridge and contractors to Battle Creek, Marshall, and Kalamazoo and the environment.  I had no choice to report it.”

For its part, SET takes the position that the company was following what it considered were best practices under the circumstance, which is to first “go after the first 90 percent, the visible, the obvious” oil, and then go back for a second sweep to clear the remaining oil and meet EPA requirements.  SET’s brief claims that Bolenbaugh does not have “the education or training to understand the strategy behind a river clean-up,” and so his opinions about deficiencies in SET’s cleanup efforts were inaccurate.  Additionally, SET claims that because Bolenbaugh’s disclosures to the media did not qualify as protected whistleblower activity, and those disclosures were what he was fired for, his termination was a lawful one.

While this is a state case, workers for environmental cleanup operations are also covered by federal environmental whistleblower laws.  However, the filing deadline in these cases is typically extremely short – sometimes as little as 30 days from the retaliatory action(s).  David J. Marshall, a partner at the whistleblower and employment law firm of Katz, Marshall & Banks, says that his firm has had success representing environmental whistleblowers in the past.  “This case, however, is all too likely to end up as a cautionary tale for whistleblowers to be careful about approaching the media with their concerns,” said Marshall.  “It cannot be stressed enough that you should speak to an attorney well-practiced in whistleblower law before blowing the whistle.  It’s your career on the line.”