Anderson v. U.S. Dept. of Labor, 03-9570.

Citation422 F.3d 1155
Decision Date02 September 2005
Docket NumberNo. 03-9570.,03-9570.
PartiesAdrienne ANDERSON, Petitioner v. UNITED STATES DEPARTMENT OF LABOR, Respondent, Metro Wastewater Reclamation District, Intervenor-Respondent, PACE 5-477; Paper, Allied-Industrial, Chemical and Energy Workers Union, Local 5-477 (PACE), Amicus Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
422 F.3d 1155

Administrative Review Board Lee Katherine Goldstein, Senn, Visciano, Kirschenbaum, P.C., Denver, CO (Susan J. Tyburski, Boyle & Tyburski, Denver, CO, with her on the briefs), for Petitioner.

Mary J. Rieser, Attorney, (Howard M. Radzely, Solicitor of Labor; Steven J. Mandel, Associate Solicitor; and Paul L. Frieden, Counsel for Appellate Litigation, United States Department of Labor, Office of the Solicitor with her on the briefs), Washington, DC, for Respondent.

Joel A. Moritz, Richard P. Brentlinger, Robert J. Thomas, Inman, Flynn, Biesterfeld, Brentlinger & Moritz, P.C., Denver CO; Donn C. Meindertsma, Winston & Strawn LLP, Washington, DC, filed an answer brief for Intervenor.

Donald S. Holmstrom, Denver, CO, filed an amicus curiae brief for Paper, Allied-Industrial, Chemical & Energy Workers Union, Local 5-477 (PACE).

Before HARTZ, McKAY and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

This is a whistleblower action brought by Adrienne Anderson (Anderson) against

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Metro Wastewater Reclamation District (Metro) pursuant to various environmental statutes which prohibit discrimination against "any employee or any authorized representative of employees." Pursuant to the recommendation of one of Metro's local unions, the City of Denver's mayor appointed Anderson to Metro's Board of Directors (Board) to represent the citizens of Denver. Anderson contends that during her tenure on the Board, Metro discriminated against her for speaking out against its plan to treat the effluent from the Lowry Superfund site on account of her belief that its effluent contained plutonium and other radionuclides which Metro was incapable of treating. Among other things, Anderson alleges Metro discriminated against her by (1) ruling her out of order and cutting her off at Board meetings, (2) denying her requests to distribute materials to other directors and to hold a special Board meeting, (3) threatening her with censure, (4) accusing her of lying, (5) altering the Board's meeting minutes, and (6) leading a campaign to defame her and destroy her professional reputation.

We are called upon to determine whether Anderson, as a political appointee to Metro's Board, was an "authorized representative of employees" during her tenure as a Board director. The Administrative Review Board (ARB) of the United States Department of Labor (DOL)1 concluded she was not and therefore determined she lacked standing to sue under the employee protection provisions of the environmental statutes.2 We agree.3

I. Factual Background
Metro Reclamation District

Metro was created in 1961 by the Metropolitan Sewage Disposal Districts Act, Colo.Rev.Stat. §§ 32-4-501-547, and is a political subdivision of the State of Colorado. It provides wholesale wastewater treatment to its members, which consist of over fifty municipalities and sanitation districts

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in metropolitan Denver. These members provide retail wastewater services to their constituents, approximately 1.3 million people.

Metro is governed by a policy-setting Board of Directors (Board). Individual directors are appointed for a two-year term by the chief executive officers of the member municipalities. The number of directors each member has on the Board is based on its population.4

The Board holds monthly meetings which are open to the public and run by a chairman. The Board follows Robert's Rules of Order and a majority vote is required for Board action. In addition to the directors, members of Metro's management team, including the District Manager and Metro's legal counsel, are present at the meetings. The meetings are tape-recorded and action minutes are prepared from those tapes. The tapes are destroyed once the minutes are approved by the full Board at the next meeting.

Metro has over 330 employees. Approximately 26-27 of those employees belong to the Oil, Chemical and Atomic Workers Union (OCAW)5 and 140-145 belong to the International Union of Operating Engineers. In 1993, OCAW's collective bargaining agreement with Metro expired. Despite numerous negotiations, a new agreement was not reached until December 1997. Because of the lack of a contract, the relationship between OCAW and Metro was acrimonious in 1996-1997.

Metro's Treatment and Pretreatment Process

Metro receives approximately 160,000,000 gallons of wastewater a day from its members. When the wastewater first enters Metro's treatment plant, large objects are screened out. The water is then placed into large settling tanks where heavy solids settle to the bottom. Bacteria and other micro-organisms are added to the waste water; these "bugs" eat the organic pollutants and nitrogen in the wastewater. To kill these "bugs," chlorine is added to the water; to remove the chlorine, sulphur dioxide is added. The treated wastewater, called wastewater effluent, is then discharged pursuant to a state permit into the South Platte River.

During the treatment process, solids, called sludge, are removed. Each day, Metro's treatment process produces well over a hundred tons of wastewater sludge. This sludge is placed into tanks where bugs digest a large quantity of it and disinfect the remainder. Once disinfected, this sludge, now called bio-solids, is applied as fertilizer to farmland in eastern Colorado, including Metro's own farmland.6 Metro produces between 70 to 80 dry tons of bio-solids each day.

In addition to treating wastewater that comes to it from its members, Metro has a pretreatment program which regulates the wastewater it receives from industry. This program is mandated by the Clean Water Act and helps maintain the quality of Metro's treatment process and its bio-solids program. Metro's pretreatment

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program requires industries, pursuant to the requirements of a pretreatment permit, to remove certain pollutants from its wastewater prior to sending it to Metro. In addition to limiting the pollutants that may enter Metro's treatment facility, these pretreatment permits contain monitoring and reporting requirements. Metro enforces these permits by issuing notices of violation, compliance orders, cease discharge orders and penalties; a failure to enforce these permits could result in action against Metro by the Environmental Protection Agency (EPA).

Lowry Site and Settlement

The Lowry site consists of 480 acres at the intersection of Quincy Avenue and Gun Club Road, approximately fifteen miles east of the City and County of Denver. From about 1940 to 1962, the United States Air Force utilized the Lowry site, as well as surrounding land, as a bombing range. From 1966 until 1980, the City of Denver operated part of the Lowry site as a landfill. Over 120 million gallons of liquid wastes were disposed of in waste pits at the Lowry Landfill. Approximately eight million tires and thirty-seven million gallons of sewage sludge were also disposed of at Lowry.

In 1984, the Lowry site was named a Superfund site.7 It was estimated that it would cost 4.5 billion dollars to clean it up. Over 400 entities were designated as "potentially responsible parties" (PRP) including Adolf Coors Company, Conoco Inc., Gates Rubber Company, Rockwell International (Rocky Flats Plant) and Shell Oil Company. In May 1988, Metro was named a PRP based on its application of sewage sludge at the site. Subsequently, the EPA issued two administrative orders requiring several PRP's, including Metro, to perform remedial investigations and feasibility studies on Lowry. Pursuant to these orders, Metro, along with several other PRP's, formed a coalition, called the Lowry Coalition, to study Lowry and determine how best to clean it up. Metro contributed over $4,700,000 dollars to demonstrate it was not a responsible party and to perform its obligations under the administrative orders. Its efforts to disprove its liability were unsuccessful. Based solely on the volume of sludge it applied to the Lowry site, Metro was considered a ten percent contributor, which exposed Metro to 450 million dollars in liability. Metro attempted to look to its general liability insurance carriers but they denied coverage, eventually leading to litigation between Metro and its insurers in 1988-89.

In 1994, the City and County of Denver, Waste Management of Colorado and Chemical Waste Management, the owners/operators of the Lowry Landfill, sued Metro and several other PRP's in the United States District Court for the District of Colorado seeking contribution to the costs they were incurring in cleaning up Lowry. In early 1996, as trial was approaching, the parties began settlement negotiations. Denver, Waste Management and Chemical Waste Management initially sought $30-35,000,000 to settle the matter with Metro. However, the parties eventually reached a settlement in June 1996, which required Metro to: (1) pay $1,900,000; (2) contribute $400,000 to the construction of a sewer line from Lowry to the City of Aurora's wastewater system; and (3) treat the effluent from the Lowry Landfill pursuant to the terms and conditions of a pretreatment permit. Under the

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treatment portion of the agreement, called the Publicly Owned Treatment Works (POTW) treatment option, Lowry's wastewater would be pretreated at the site pursuant to a pretreatment permit, discharged into the City of Aurora's public sewer system and Metro's Sand Creek sewer, and then sent to Metro's facility for further treatment. If at any time the Lowry effluent failed to satisfy the standards set forth in the permit, discharge to Metro would be stopped.8 Metro's Board unanimously approved the settlement at a special meeting on June 4, 1996.

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