## F I L E D United States Court of Appeals Tenth Circuit 

### September 2, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ADRIENNE ANDERSON, Petitioner,

v. UNITED STATES DEPARTMENT OF LABOR, Respondent,

--------------------------------------------- METRO WASTEWATER RECLAMATION DISTRICT Intervenor - Respondent,PACE 5-477; PAPER, ALLIEDINDUSTRIAL, CHEMICAL AND ENERGY WORKERS UNION, LOCAL 5-477 (PACE),
Amicus Curiae

. No. 03-9570

Appeal from the United States Department of Labor

Administrative Review Board

Lee Katherine Goldstein, Senn, Visciano, Kirschenba um, P.C., Denver, Colorado (Susan J. Tyburski, Boyle & Tyburski, Denver, Color ado, with her on the briefs), for Petitioner.-2-

Mary J. Rieser, Attorney, (Howard M. Radzely, Solic itor of Labor; Steven J. Mandel, Associate Solicitor; and Paul L. Frieden, C ounsel for Appellate Litigation, United States Department of Labor, Off ice of the Solicitor with her on the briefs), Washington, D.C., for Respondent. Joel A. Moritz, Richard P. Brentlinger, Robert J. T homas, Inman, Flynn, Biesterfeld, Brentlinger & Moritz, P.C., Denver Col orado; Donn C. Meindertsma, Winston & Strawn LLP, Washington, D.C., filed an an swer brief for Intervenor. Donald S. Holmstrom, Denver, Colorado, filed an ami cus 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 Metro Wastewater Reclamation District (Metr o) pursuant to various environmental statutes which prohibit discriminatio n against “any employee or any authorized representative of employees.” Pursu ant to the recommendation of one of Metro’s local unions, the City of Denver’s m ayor 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 effluentfrom the Lowry Superfund site on account of her belief that its effluent containe d plutonium and other radionuclides which Metro was incapable of treating . Among other things,1 In 1996, the Secretary of Labor created the ARB to inter alia act for the

Secretary in reviewing decisions of Administrative Law Judges pertaining to the environmental whistleblower statutes. 61 Fed. Reg. 19,978, 19,978 (May 3, 1996).

2All citations to the record in this case refer to the administrative record. Citations to Metro’s Vol. I, II or III and Anderson ’s Vol. III-A, III-B or III-C refer to the volumes of exhibits which were introdu ced into evidence at the administrative hearing before Administrative Law Ju dge David W. Di Nardi.

3 Six of the seven environmental statutes at issue i n this case provide for judicial review of the ARB’s decision in the Circui t Court of Appeals in which either the complainant resides or transacts busines s or where the environmental violation occurred. See 15 U.S.C. § 2622(c)(1), 33 U.S.C. §§ 1367(b), 1369(b)(1), 42 U.S.C. §§ 300j-9(i)(3)(A), 5851(c)(1 ), 6971(b), 6976(b), 7622(c)(1). However, one statute, the Comprehensiv e Environmental Response, -3- 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) al tering the Board’s meeting minutes, and (6) leading a campaign to defame her a nd destroy her professional reputation. We are called upon to determine whether Anderson, a s a political appointee to Metro’s Board, was an “authorized representative of employees” during her tenure as a Board director. The Administrative Rev iew 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 emp loyee protection provisions of the environmental statutes. 2 We agree. 3Compensation and Liability Act (CERCLA) vests exclu sive jurisdiction in the

federal district courts. 42 U.S.C. §§ 9610(b), 961 3(b). The ninth circuit confronted a similar conundrum inRuud v. United States Dep’t of Labor , 347 F.3d 1086 (9th Cir. 2003), a case involving the Cle an Air Act and CERCLA. It concluded: We hold that the court of appeals should entertain a petition to review an agency decision made pursuant to the agen cy’s authority under two or more statutes, at least one of which p rovides for direct review in the courts of appeals, where the petition involves a common factual background and raises a common legal question. Consolidated review of such a petition avoids incon sistency and conflicts between the district and appellate courts while ensuring the timely and efficient resolution of administrative c ases. Id. at 1090. See also Int'l Bhd. of Teamsters v. Peña , 17 F.3d 1478, 1481-82 (D.C. Cir. 1994) (review of United States Federal H ighway Administration’s implementing rule). We agree and hold we have juri sdiction to review the merits of this case in its entirety. -4- I. Factual Background Metro Reclamation District Metro was created in 1961 by the Metropolitan Sewag e Disposal Districts Act, Colo. Rev. Stat. §§ 32-4-501-547, and is a politica l subdivision of the State of Colorado. It provides wholesale wastewater treatme nt to its members, which consist of over fifty municipalities and sanitation distric ts in metropolitan Denver. These members provide retail wastewater services to theirconstituents, approximately 1.3 million people. Metro is governed by a policy-setting Board of Dire ctors (Board). Individual directors are appointed for a two-year term by the chief executive officers of the4During the relevant time period of this suit, the Board consisted of fiftynine directors. The City of Denver, the largest mu nicipal member, had twenty directors on the Board, including Anderson.

5 Due to a merger in 1999, OCAW was succeeded by the Paper, AlliedIndustrial, Chemical and Energy Workers Union (PACE ). For purposes of this opinion, we will continue to refer to the union as OCAW. The union has filed an amicus curiae brief in support of Anderson. -5- member municipalities. The number of directors eac h 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 Orde r and a majority vote is required for Board action. In addition to the dire ctors, members of Metro’s management team, including the District Manager and Metro’s legal counsel, are present at the meetings. The meetings are tape-rec orded 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 Unio n (OCAW) 5 and 140-145 belong to the International Union of Operating Engi neers. 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 w as acrimonious in 1996-1997.6In 1993, Metro began purchasing farmland in Arapah oe and Elbert

Counties. In 2000, Metro owned 51,000 acres of far mland, growing wheat and other grains. -6- 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 Metr o’s treatment plant, large objects are screened out. The water is then placed into la rge settling tanks where heavy solids settle to the bottom. Bacteria and other mi cro-organisms are added to the waste water; these “bugs” eat the organic pollutant s and nitrogen in the wastewater. To kill these “bugs,” chlorine is added to the wate r; to remove the chlorine, sulphur dioxide is added. The treated wastewater, called w astewater effluent, is then discharged pursuant to a state permit into the Sout h Platte River. During the treatment process, solids, called sludge , are removed. Each day, Metro’s treatment process produces well over a hund red 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, includi ng Metro’s own farmland. 6 Metro produces between 70 to 80 dry tons of bio-solids ea ch day. In addition to treating wastewater that comes to itfrom its members, Metro has a pretreatment program which regulates the wastewat er it receives from industry. This program is mandated by the Clean Water Act and helps maintain the quality of7A site qualifies as a Superfund site and is placed on the National Priorities

List when it is determined that “there may be an im minent and substantial endangerment to the public health or welfare or the environment because of an -7- Metro’s treatment process and its bio-solids program. Metro’s pretreatment program requires industries, pursuant to the requirements o f a pretreatment permit, to remove certain pollutants from its wastewater prior to sen ding it to Metro. In addition to limiting the pollutants that may enter Metro’s treatment facility, these pretreatment permits contain monitoring and reporting requiremen ts. Metro enforces these permits by issuing notices of violation, compliance orders, cease discharge orders and penalties; a failure to enforce these permits c ould result in action against Metro by the Environmental Protection Agency (EPA). Lowry Site and Settlement The Lowry site consists of 480 acres at the interse ction 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 Forc e 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. Ove r 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 s ewage sludge were also disposed of at Lowry. In 1984, the Lowry site was named a Superfund site. 7 It was estimated that itactual or threatened release of a hazardous substan ce. . . .” 42 U.S.C. § 9606(a). -8- would cost 4.5 billion dollars to clean it up. Ove r 400 entities were designated as “potentially responsible parties” (PRP) including A dolf Coors Company, Conoco Inc., Gates Rubber Company, Rockwell International (Rocky Flats Plant) and Shell Oil Company. In May 1988, Metro was named a PRP ba sed on its application of sewage sludge at the site. Subsequently, the EPA i ssued two administrative orders requiring several PRP’s, including Metro, to perfor m remedial investigations and feasibility studies on Lowry. Pursuant to these or ders, Metro, along with several other PRP’s, formed a coalition, called the Lowry C oalition, to study Lowry and determine how best to clean it up. Metro contribut ed over $4,700,000 dollars to demonstrate it was not a responsible party and to p erform 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 Lo wry 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 in surance 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 Manag ement 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 wer e incurring in cleaning up8Indeed, in late 2000, Metro stopped the discharge because the effluent

failed a test required by the permit. -9- Lowry. In early 1996, as trial was approaching, th e parties began settlement negotiations. Denver, Waste Management and Chemica l Waste Management initially sought $30-35,000,000 to settle the matte r with Metro. However, the parties eventually reached a settlement in June 199 6, which required Metro to: (1) pay $1,900,000; (2) contribute $400,000 to the cons truction of a sewer line from Lowry to the City of Aurora’s wastewater system; an d (3) treat the effluent from the Lowry Landfill pursuant to the terms and conditions of a pretreatment permit. Under the treatment portion of the agreement, calle d the Publicly Owned Treatment Works (POTW) treatment option, Lowry’s wastewater w ould 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 thensent to Metro’s facility for further treatment. If at any time the Lowry efflue nt failed to satisfy the standards set forth in the permit, discharge to Metro would b e stopped. 8 Metro’s Board unanimously approved the settlement at a special me eting on June 4, 1996. Anderson’s Appointment to the Board In late 1995, seeking the appointment of a directorsympathetic to OCAW’s views, Patricia Farmer and Marilyn Ferrari, OCAW Lo cal’s Chief Steward and Vice President, respectively, contacted Paul Wishard, th e labor liaison for Wellington9In the 1980’s, Anderson had served as a consultantto OCAW

International. In 1994, she served as Special Proj ects Director for OCAW International in which she assisted the local union at Metro with its health and safety concerns and lack of a contract. Due to pre gnancy complications, Anderson left this position.

10In her letter to the Mayor’s office in which she s ubmitted Anderson’s resume, Farmer stated:

Please accept the enclosed resume of Adrienne Ander son in consideration for the open position on the [Metro] Board of Directors. Ms. Anderson is a recognized expert on environmental issues and is well versed on matters regarding the Lowery [sic] Landfill. Considering [Metro’s] position to force the City and County of Denver into litigation rather than live up to [its] obligation to clean up the landfill, it seems appropriate thatsomeone be appointed . . . who will hold [Metro] management ac countable on this matter. Ms. Anderson has also been helpful to [Met ro] employees . . ., who are represented by [OCAW], in their fight fo r a fair contract. These employees have been working under an expired contract for three years while [Metro] management refuses to bar gain with the union over any meaningful contract issues. As a representative for the Metro OCAW bargaining u nit, I have spoken with Mayor Webb . . . about our struggles. The majority of our members are taxpayers in the city of Denver and we believe the Denver Directors have a duty to represent the citiz ens of this city. We hope the appointment of Board members like Adrie nne Anderson will lead to a kinder and gentler District manageme nt who will put people and the environment first. -10- Webb, then-mayor of the City of Denver. Wishard su ggested they submit the names and resumes of individuals they wished to see appoi nted to the Board. Thereafter, Ferrari called Anderson, asking her whether she wou ld be willing to serve as a director on the Board. 9 Anderson agreed and her name and resume were subm itted for Mayor Webb’s consideration. 10 On February 22, 1996, Mayor Webb sent(Anderson’s Vol. III-A, Ex. 4.) -11-

Anderson a letter appointing her to the Board throu gh June 30, 1998. The letter informed Anderson her appointment would need to be confirmed by the Denver City Council and would take approximately one month to p rocess. Prior to her confirmation hearing, Anderson, believ ing she needed to “get up to speed on outstanding issues that the union had e xpressed concern about,” began reviewing public records concerning Lowry. (Tr., N ov. 7, 2000 hearing, Vol. II at 274.) Through this initial research, she discovere d the United States Army Corp of Engineers had designated the Lowry site as a catast rophic risk zone, meaning “the chance of somebody being injured or killed was high , by going out to that territory.” (Id. ) Because she believed the public was unaware of t his and because the building of subdivisions was being planned for the area, And erson wrote to then-Colorado Governor Roy Romer expressing her concern. She als o appeared on a Denver radio talk show program to alert the public to the inform ation she had discovered and to urge full radiological testing be performed at Lowry. Confirmation Hearing In May 1996, Anderson appeared before the Public Wo rks Committee of the Denver City Council. At the hearing, Donna Good fr om Mayor Webb’s office sought the Committee’s confirmation of Anderson as a Metro director and informed the Committee her appointment had been made pursuan t to OCAW’s11 Anderson’s official appointment paper, signed by M ayor Webb on July 8,

1996, stated: I, Wellington E. Webb, Mayor of the City of Denver, Colorado, by virtue of the authority vested in me by law, do her eby appoint Adrienne Anderson as the City of Denver’s represent ative on the Board of Directors of Metro Wastewater Reclamation District, to serve a term of two years . . ., beginning July 1, 1996, and ending June 30, 1998, in accordance with the laws of the S tate of Colorado and the By-laws of the Metro Wastewater Reclamation District.

-12- recommendation. After Anderson answered the committee’s questions, she was informed her confirmation would go before the full city council at its next weekly meeting. Anderson expected to be on the Board by J une. However, at the next city council meeting, Councilman Ted Hackworth, also a M etro Board director, raised objections to Anderson’s confirmation and wanted to personally question her. Therefore, in June 1996, Anderson appeared again be fore the Public Works Committee. There, Hackworth questioned Anderson’s association with OCAW and environmental groups. As to her union association, he questioned whether it presented a conflict of interest. Anderson explain ed her past associations and informed Hackworth her position on the Board would be to craft solutions which are protective of worker health and safety but also cos t effective. Satisfied with her answers, Hackworth voted for Anderson’s confirmatio n and she was unanimously confirmed by the entire City Council. 11(Metro’s Vol. II, Ex. 30.) Anderson testified she believed the “odd” delay in her

confirmation to the Board was to prevent her from b eing on the Board at the time it approved the Lowry settlement, what she refers t o as the “secret deal[].” (Tr., Nov. 8, 2000 hearing, Vol. III at 589-90, 591.)

12This attorneys’ fee request related to the litigat ion between Metro and its insurance carriers. -13- Anderson’s Research Prior to First Board Meeting Before attending her first Board meeting as a direc tor, Anderson received a package of introductory materials and the meeting a genda. She noticed an item on the agenda was the approval of approximately $100,0 00 in attorneys’ fees related to Lowry. 12 Also prior to her first meeting, Anderson had lun ch with then-Chairman of the Board, Richard Plastino, who informed her of th e Lowry settlement and what it generally entailed. Thereafter, she continued her research on Lowry, discovering that Metro had at one time refused to accept the Lo wry effluent and that radioactive waste had been disposed of at the site. Anderson’s First Board Meeting On July 16, 1997, immediately preceding her first B oard meeting, Anderson attended a dinner with the Denver directors at Gaet ano’s restaurant. Anderson brought with her some documents she uncovered in he r research which indicated the presence of radionuclides at Lowry. She informed t he other directors of her concerns and offered to share the documents with th em. One of the directors, John Wilder, became very angry and (according to Anderso n) slammed down his fork and13 Hackworth testified he never attended any dinner w here Anderson was

present. -14- yelled at her. Thereafter, Wilder, Hackworth and R obert Werner allegedly stood up and left. 13 Directors Al Levin and Steven Foute, also a new d irector, were shocked at the treatment Anderson received. Director Foute informed them he would make a motion at the Board meeting to have the EPA brief t he Board on the Lowry treatment plan. Later that evening, at the Board meeting, Anderson was sworn in as a director. District Manager Robert Hite testified t hat when Anderson introduced herself, she stated she was there to correct the mi stakes they were making at Lowry and that if she had been on the Board, the Lowry se ttlement would never have been reached. Director Levin recalled Anderson introduc ing herself and indicating she was appointed by the Denver City Council and Mayor’ s office to represent the concerns and welfare of Metro employees. Chairman Plastino testified Anderson informed everyone she was appointed to represent en vironmental interests. Other individuals present at the meeting testified they t hought Anderson was arrogant and aggressive, especially considering she was a new di rector. Anderson did not recall making any introductory statements at her first mee ting. However, she did perceive a cool attitude towards her by certain Board member s. As planned, Director Foute moved to have the EPA br ief the Board on Lowry14Although Anderson testified Foute made this motion at her first Board

meeting, the meeting minutes show this motion was n ot made until her second Board meeting on August 20, 1996. The minutes also reveal Plastino stated he was open to having the EPA and Colorado Department of Health speak directly to the Board but wanted Metro personnel to initially s ponsor an informational meeting. Hite stated he was willing to commit Metr o’s staff to “all the time it takes to bring everybody up to speed” on Lowry. (B oard’s Aug. 20, 1996 meeting minutes at 14.)

15 The Board has four standing committees: (1) Future Programs, (2) Operations, (3) Budget/Finance and (4) Personnel. Each of these committees has its own chairman and holds monthly meetings. The B oard also has an Executive committee which is composed of the four officers of the Board (Chairman, Chairman Pro Tem, Secretary and Treasurer), the cha irpersons of each standing committee, and five other members appointed by the Board’s chairman. Except for the Executive committee, which has limited spen ding authority, these committees may only make recommendations to the ful l Board; they may not take action on behalf of the Board. -15- and Anderson seconded the motion. According to And erson, Chairman Plastino stated such briefing was unnecessary because Metro staff could provide such information. 14 Anderson’s First Operations Committee meeting Anderson was appointed to serve on the Board’s Oper ations standing committee. 15 At that time, Hackworth was the committee’s chair man. At her first Operations committee meeting on August 8, 1996, And erson felt the same cool reception towards her that she had felt at her firs t Board meeting. During the meeting, Anderson requested to go into an executive session in order to discuss the information she had discovered in her research rega rding Lowry. Allegedly, Hackworth angrily banged his gavel and ruled her ou t of order. Hackworth testified16This incident is not addressed in the August 8, 19 96 Operation committee

meeting minutes. Anderson refers to this omission as an example of Metro’s falsification/alteration of Board minutes. -16- he merely informed Anderson the Lowry decision had been made by the Board and therefore it was inappropriate to discuss it furthe r. 16 After that meeting, Anderson learned that at the prior month’s Operations committee meeting, Hackworth had told another director that Anderson had lied at her conf irmation hearing. In response to hearing this, Anderson wrote Hackworth a letter, se eking an apology. Hackworth replied to the letter, indicating he merely told th e other director that if Anderson represented OCAW or environmental extremists, then she had lied to him at her confirmation hearing. August 20, 1996 Board Meeting On August 20, 1996, Don Holmstrom, then-President o f OCAW Local, wrote a letter, with Anderson’s assistance, to Marc Herma n of the EPA, requesting a public comment period be held on the decision to have Metro treat the Lowry effluent. On that same date, employees of Metro’s laboratory and members of OCAW conducted an informational picket at the Board meeting, distributing Holmstrom’s letter. The next day, Plastino telepho ned Anderson, informing her he had received a number of calls from other Board mem bers concerning their belief that she was a “whacko” and that she had told the e mployees about the Lowry settlement. He also informed her they were concern ed about her having conducted a17 Prior to attending this public hearing, Anderson ha d informed the

Operations committee that she was conducting an ext ensive review of the Lowry matter and would be making public statements concer ning her findings. -17- Colorado Open Records Act (CORA) request while repr esenting herself as a Board member. Anderson admitted she had told the workers about Lowry, reminding Plastino she had been put on the Board to representthe workers, and stated she had made CORA requests in an effort to educate herself about Lowry. Anderson’s Appearance at EPA Public Hearing The EPA issued its Record of Decision (ROD) concern ing the clean-up of Lowry on March 10, 1994. The 1994 ROD called for o nsite treatment of Lowry’s wastewater. Because Metro’s agreement to treat the Lowry effluent offsite altered the 1994 ROD, the EPA issued an “Explanation of Sig nificant Differences” and held a public comment period from March 24, 1997, to Apr il 22, 1997. On April 2, 1997, Anderson attended a public comment hearing he ld by the EPA. 17 There, Anderson spoke, introducing herself as follo ws: My name is Adrienne Anderson. I’m a [B]oard memberof the Metro Wastewater Reclamation District appointed by Mayor Webb of Denver, which owns the landfill, and I also teach environme ntal ethics at the University of Colorado at Boulder. (Metro’s Vol. I, Ex. 2 at 35.) During her comments , Anderson noted several times she was a Board member and called for rejection of Metro’s proposed treatment of the Lowry effluent, claiming it contained plutonium and other radionuclides.18Levin introduced himself as follows:

My name is Al Levin. I’m a director at the Metro W astewater Reclamation Agency. And I’m here as a concerned ci tizen, concerned with the health, safety and welfare of ev erybody that is here today and the community at large. (Metro’s Vol. I, Ex. 2 at 50.) -18- Director Al Levin also appeared at the hearing, voi cing his concerns. 18 Thereafter, on April 9, 1997, Plastino issued a mem o to the Board’s directors. In this memo, he indicated two directors had spoken out against Metro’s plan to treat the Lowry effluent. While recognizing that t he two directors did not claim to be speaking on the Board’s behalf, Plastino stated “they failed to make a disclaimer that they were not speaking for or representing the Board.” (Metro’s Vol. I, Ex. 4.) He stated that while every director has the right t o voice his or her opinion, the Board’s by-laws provide that the chairman shall be the general spokesperson for the Board and every director has the obligation to stat e he or she is not speaking on behalf of Metro or the Board. To avoid further mis representations and to correct any misrepresentation that may have resulted, Plast ino urged the Board to adopt a proposed resolution reaffirming its position on Low ry and the by-laws’ designation of the chairman as the Board’s spokesperson. At the next Board meeting on April 15, 1997, discus sion was held on Plastino’s proposed resolution. Anderson objected to the resolution. She stated she19This letter, referred to as the April 16, 1997 letter, was also sent to Hite,

the Executive committee and Joel Moritz, Metro’s le gal counsel. Contrary to Anderson’s assertions during the administrative pro ceedings, it was not circulated to the entire Board. -19- clearly expressed at the EPA meeting that she held a minority position on the Board and did not represent the Board. She further expre ssed her concern that the Lowry waste stream included plutonium and neither the Low ry on-site treatment plant nor Metro’s treatment facility had the capability of re moving radionuclides. She then moved to amend the resolution to include language t hat the Board was fully informed that the Lowry waste stream contained plut onium and other man-made radionuclides. Her motion failed. Plastino’s prop osed resolution passed with only two “no” votes, one of which was cast by Anderson, with the caveat that she did support the by-law’s designation of the chairman as the Board’s spokesperson. The next day, Plastino issued a letter to Anderson and Levin, indicating the full Board had passed a resolution re-affirming its position on Lowry and the bylaws’ designation of the chairman as general spokes person for the Board. 19 Plastino also informed them that if they continued to expres s their personal opinions related to Metro without giving a proper disclaimer, “there [was] a potential that the Board . . . will censure you.” (Metro’s Vol. I, Exs. 6, 7. ) Anderson testified she interpreted this letter as “an attempt at intimidation. That t hey were attempting to curb my rights to speak out on this. I was upset that they were trying to isolate me further on20Plastino suggested the following disclaimer:

I would like to state that I am not speaking on beh alf of the Metro Wastewater Reclamation District, and the views expr essed are my own personal opinions and not those of the Metro Di strict. (Metro’s Vol. I, Ex. 10.) Plastino was instructed by the Executive committee to draft this letter. Prior to receiving it, Anderson became aware Plastino would be issuing the letter and made a motion at the May 20, 1997 Board meeting that any issue concerning disclaimers should be referred to the By-Laws Review committee. Plastino refused to entertain the motio n, preferring to answer any questions once the letter was issued. -20- the Board . . . and I felt trivialized, that I woul d be subject to a letter telling me what I should say. I felt that [they were] treatin g me like a child. . . .” (Tr., Nov. 7, 2000 hearing, Vol. II at 366.) In response to Ande rson’s belief that she had made a proper disclaimer, Plastino issued another letter t o her on May 20, 1997, informing her he did not believe she made a proper disclaimerand suggesting one for her. 20 May 1997 Board Meeting Before the May 1997 meeting, Director Levin provide d Anderson with a memorandum which Hite allegedly circulated to all o f the Board’s directors except Anderson. Attached to this memo was a verbatim tra nscript of an interview Anderson conducted on a Boulder radio station on May 14, 1997, concerning her belief that Metro’s treatment of the Lowry effluentwould result in plutonium-laced biosolids being used as fertilizer in eastern Color ado. Anderson interpreted the memo as a “way for [Hite] to attempt to get the [B] oard concerned and upset about-21-

the fact that I was continuing to speak out on [the Lowry] issue.” (Tr., Nov. 8, 2000 hearing, Vol. III at 439.) On May 30, 1997, Hite a lso sent a letter to Denver Councilman William Himmelmann concerning the campai gn “being waged by a small number of people” against Metro’s proposal to treat the Lowry effluent. (Anderson’s Vol. III-A, Ex. 55 at 1.) Attached to the letter was a fact sheet addressing several specific allegations and the sci entific and factual information countering them. This fact sheet was distributed t o the Board at the May 1997 hearing; Anderson claims she was not allowed to dis tribute material at this same meeting. The “Smoking Gun” In June 1997, Anderson uncovered a letter from the Lowry Coalition, dated December 13, 1991, to the EPA Director of Region VI II, in which it objected to the EPA reaching any type of settlement with the Depart ment of Energy or any other entity associated with the Rocky Flats Plant regard ing Lowry because “[t]he information and data . . . demonstrates that man-ma de radionuclides which only could have originated from the Rocky Flats Plant ar e present in significant quantities at Lowry Landfill.” (Anderson’s Vol. III-A, Ex. 28 at 1.) The information concerning the presence of man-made rad ionuclides at the Lowry site was based on a study Harding Lawson Associates had performed at the site. Upon learning of the document, Anderson informed members of OCAW staff; they were-22-

shocked and outraged. Thereafter, Anderson and the OCAW held a news conference at the Metro plant site concerning the L owry Coalition’s December 13, 1991 letter, which was later referred to as “the sm oking gun” during the administrative proceedings. (Tr., Nov. 8, 2000 hearing, Vol. III at 453-54.) June 1997 Board Meeting At the June 17, 1997 Board meeting, the Board suspe nded the rules to allow for a public forum. During this forum, residents f rom eastern Colorado and representatives of OCAW appeared. In addition to v oicing concerns about Metro’s proposed treatment of the Lowry effluent, individua ls raised concerns regarding Metro’s non-tax paying status, erosion, and the det erioration of the roads used by Metro’s trucks. Metro’s management briefly respond ed to these concerns at the forum and followed up with a more detailed letter d ated June 27, 1997. Anderson’s Request for Special Meeting On June 25, 1997, Anderson authored a letter to Bev erly McAdam, Metro’s staff assistant, seeking a special Board meeting. She asked McAdam to mail out her request for a special meeting and a packet of mater ials to all Board members. This packet of materials contained evidence that the Low ry site contained plutonium (including the December 13, 1991 Lowry Coalition le tter) and information she had received from two employees who accused21 These two employees, Delwin Andrew and Anthony Bro ncucia, were

terminated in 1997, along with two other individual s, for falsification of records (falsely punching time cards for other employees) a nd dishonesty. They contacted Anderson believing she could assist them in getting their jobs back because they had heard Anderson represented the workers. They i nformed Anderson that Metro had offered to reinstate two of the four fire d employees if their union, the International Union of Operating Engineers, would e ndorse Metro’s treatment of the Lowry effluent. Hite admitted that Jose Padill a, a member of Metro’s Human Resources Department, had approached Jim Smolynsky, the Business Agent for the Operating Engineers’ Local Union at Metro, with a “deal” whereby two of the four terminated employees would get their jobs backif the Operating Engineers wrote a letter to the EPA supporting Metro’s positi on on Lowry. Hite testified Padilla acted without his knowledge and was orally reprimanded.

22The Board’s by-laws state: “Special meetings shall be called by the Chairman of the Board, whenever, in his opinion, su ch a meeting is necessary or desirable, or whenever the same is requested in wri ting by 20 percent or more of the members of the Board.” (Metro’s Vol. I, Ex. 1 at 2.) -23- Metro of blackmail. 21 This information was mailed out to all directors. Enclosed with the mailing was a memorandum issued by Chairma n Plastino, stating that as chairman he would not be calling a special meeting and would recommend against such a meeting. 22 Plastino testified he recommended against holding a special meeting because he believed it was unnecessary as t he Lowry issue had already been settled by the Board. Because it failed to garner the necessary support from the other directors, Anderson’s request for a special m eeting was denied. Based on this denial, Anderson drafted a letter concerning her al legations and attempted to distribute it at the July 1997 Board meeting. Her attempts to pass it out were not well-received. Anderson alleges directors threw itin the trash and one director23 There was also testimony that Anderson, with Ferra ri’s assistance, had

attempted at other meetings to pass out documents. Allegedly, directors threw these documents at Anderson. Both Ferrari and Ande rson admitted they did not have permission to distribute these documents durin g the meeting. -24- stated “I never read anything she distributes” and “[s]he can go to hell.” 23 (Tr., Nov. 8, 2000 hearing, Vol. III at 484.) She claims no one censured this director and in fact, Hite laughed. Anderson’s Tape-Recording of Meetings At the July 3, 1997 Operations committee meeting, A nderson brought a tape recorder and attempted to record the meeting. Hackworth made her turn off the recorder. A general discussion was had and a vote was taken, the majority opposing Anderson tape-recording the meeting. On July 15, 1997, Anderson issued a memorandum to H ackworth alleging certain errors and misrepresentations in the July 3 , 1997 Operations committee meeting minutes including the omission of her reque st for a roll call vote on whether she could record the meeting and Hackworth’ s refusal to hold such vote. At the next Operations committee meeting in August, Hackworth addressed the memo, reiterating that meeting minutes are not verb atim. After discussing the alleged distortion of the July 3 meeting minutes, t he majority of the committee voted not to amend them. At this meeting, there was also discussion concerning the recording of meetings. Hackworth stated the By-Law s Review committee would be24Anderson subsequently did a CORA request to listento the tapes of

certain meetings of committees of which she was nota member. She listened to a By-Laws Review committee meeting and an Executive c ommittee meeting. She claimed that during both meetings there was a discu ssion about how to prevent her from being able to tape record future meetings. Allegedly, these committees admitted they would not object if anybody else was tape-recording meetings but were concerned about Anderson taping them. -25- addressing the tape-recording of meetings. In any event, Anderson was allowed to tape record the meeting. 24 On December 16, 1997, the by-laws were amended; the amendments contained a specific provision that meet ings could be recorded. Anderson’s CORA request On July 9, 1997, Anderson made a CORA request to Me tro regarding whether Metro was receiving wastes from any other Superfundsites. Anderson testified she asked for this information because the workers had concerns about it. She stated she felt she had to obtain this information through CORA because she did not believe Metro would have voluntarily provided her w ith the information based on the reactions she received at meetings. On July 11 , 1997, Betty Anne Trampe, Metro’s Records Management Administrator, respondedto the request, indicating Metro was currently receiving wastes from two Super fund sites. Trampe informed her documents concerning those sites would be avail able for her to review and copies would be provided to her “upon payment of 25 cents per page, consistent with the provisions of [CORA].” (Anderson’s Vol. I II-A, Ex. 74.) Anderson stated other directors did not appear to have to pay for c opies and Metro could have25 Hite testified Anderson had asked him for informat ion concerning

whether Metro treated other Superfund site waste atthe July 3, 1997 Operations committee meeting. Hite informed her it did. When Anderson asked for records concerning those sites, Hite stated he would make t hem available for her. Before he was able to retrieve the records from archives, he received Anderson’s July 9 CORA request. Because Anderson made a CORA request , Hite was required to treat her request like any other CORA request by a citizen, including charging her for it. He admits he “joked around” about having t o charge her. (Tr., Nov. 16, 2000 hearing, Vol. VII at 1412.) He testified thathad she allowed him to comply with her initial request, he would have provided he r the information free of charge. -26- responded to her request stating she had a right to the documents without having to proceed through CORA. She also testified Hite joke d about the fact Metro was billing her for copies. 25
“Public Relations War” After over a year of the Board refusing to listen t o her, Anderson took her opposition to Metro’s treatment of the Lowry efflue nt and her beliefs that plutonium and other radionuclides were present at Lowry direc tly to the media. Between April 23, 1997, and July 24, 1997, she was quoted in seve ral Colorado newspapers, including the Colorado Daily , the Boulder Weekly , the Boulder Daily Cameraand the Westward , as well as in In These Times , a national publication based in Chicago, Illinois. In June 1997, Anderson was inte rviewed by Moneyline , a CNN television program, for an investigative series con cerning the EPA’s policy allowing sewage sludge to be used as fertilizer. As part of that series, Moneyline focused on Metro’s plan to treat Lowry’s wastewater and to use the resulting sludge as fertilizer26During her tenure on the Board, Anderson was an in structor in the

Environmental Studies Program and Ethic Studies Dep artment at the University of Colorado.

27Metro’s Public Information Officer, Steve Frank, t estified he and Metro management decided to take a “low key” approach in response to Anderson’s statements to the media. (Tr., Nov. 14, 2000 heari ng, Vol. V at 890.) He stated: “Basically, what [we decided] to do is talk about t he facts. We [were] not going to talk about her. We [were] not going to use her name.” (Id. ) -27- in eastern Colorado. Anderson videotaped this seri es and presented it to her students at the University of Colorado, 26 Metro employees, OCAW members and the public. In response to Anderson taking her concerns public, Metro began its own “campaign” to defend its position on Lowry by issui ng fact sheets, news releases and letters to the community to educate it about Lo wry. 27 In addition to distributing his May 30, 1997 letter to Councilman Himmelmann to the media, Hite authored a letter on July 23, 1997, to “Interested Parties,” i ncluding OCAW officials, government officials, Metro employees and eastern C olorado residents, addressing the December 13, 1991 Lowry Coalition Letter. In t his letter, Hite stated that a report by Doty & Associates, dated August 10, 1992, refuted the findings by Harding Lawson Associates of the presence of radioa ctivity at Lowry. Specifically, the Doty & Associates report questioned the science and validity of the Harding Lawson Associates’ findings and indicated radionucl ides “are, at best, questionably present, and more likely not present at the Lowry L andfill above ‘background’-28-

levels.” (Metro’s Vol. II, Ex. 43 at 1) (quotation s omitted). Metro also sent a memorandum to Colorado Water Quality professionals alerting them to the Moneyline program. In this memorandum, Metro asserted its p roposed treatment of the Lowry effluent was protective of the public hea lth and environment. It also discounted Anderson’s belief that plutonium was pre sent at the Lowry site, stating “[s]he is not telling the truth, but she is getting her message to the media.” (Anderson’s Vol. III-A, Ex. 108.) EPA Approves Lowry Plan On October 28, 1997, Metro issued a press release i nforming the public that the EPA had approved Metro’s plan to treat the Lowry effluent. In this release both Hite and Steve Pearlman, Director of Metro’s Regulatory & Connector Relations Department, stated the plan would pose no risk to t he public or environment. The Colorado Department of Health also gave its approva l. Anderson’s Failure to be Re-Appointed to the Board During the remainder of her term on the Board, Ande rson continued to speak out, both publically and at Board meetings, againstMetro’s plan to treat the Lowry effluent. Anderson’s appointment to the Board expi red in June 1998. Anderson sought reappointment but Mayor Webb did not reappoi nt her. Anderson believed her failure to be reappointed was due to her having unveiled the Lowry plan to the public and her rejection of it. After not being re appointed to the Board, Anderson28Earlier, OCAW International had provided Anderson with $5,000 to

assist her in her whistleblower proceedings in grat itude for her “persistent dedication” in looking out for the interests of OCA W-Local as a Board member. (Anderson’s Vol. III-A, Ex. 71.)

29Pearlman testified that the risk associated with r adionuclides is their potential to cause cancer in humans. Pearlman stat ed that the EPA’s allowable standard of radionuclides in drinking water is “a l evel that allows one additional -29- was retained by OCAW Local as a part-time consultan t to continue to work to block the Lowry plan. In May 1998, OCAW presented Anders on with an award in recognition for her work on behalf of Metro workers

. 28 July 1999 Lowry Pretreatment Permit Once the Lowry settlement was reached, Pearlman and other individuals in Metro’s pretreatment department began to develop a draft pretreatment permit for the Lowry site. On November 13, 1998, Metro issued its draft permit which limited fifty-three chemicals and fifteen radionuclides. I t also imposed monitoring requirements on the Lowry operators, including the monitoring of pollutants not limited by the permit in the event they became pres ent. Metro was also to monitor all parts of the Lowry treatment plan eight times ayear. Metro accepted public comments on the draft permit for thirty days. Afte r receiving comments from fortythree individuals and groups, including Anderson, M etro published a responsive summary in June 1999. As a result of the public’s comments, Metro made thirteen changes to the permit, the most significant being asubstantial lowering of allowable radionuclides Metro would receive from Lowry. 29 The final permit was issued oncancer case per million of population over a 70 yea r life time.” (Tr., Nov. 15,

2000 hearing, Vol. VI at 1158.) He stated the draf t permit established a limit for plutonium ten times more restrictive than the EPA s tandard for drinking water. Due to public concern, the final permit limited plu tonium to allow for a cancer risk of one in one billion over a seventy year life time.

30James Gilman, President of OCAW Local at the time of the press conference, testified OCAW’s lawsuit against Metro was filed in February 2000 and the press conference took place in March 2000. However, according to a statement Gilman made on April 19, 2000, OCAW sued Metro on April 14, 2000. -30- July 14, 1999, effective August 1, 1999. However, Metro did not begin to treat the Lowry effluent until July 2000. April 2000 Press Conference On April 14, 2000, OCAW sued Metro and others seeki ng an injunction “on behalf of the lab employees of [Metro] who are repr esented members of [OCAW]” against Metro’s plan to treat the Lowry effluent. ( Anderson’s Vol. III-A, Ex. 93.) On April 18, 2000, OCAW held a news conference at t he Metro facility which Anderson attended. 30 Steve Frank, Metro’s Public Information Officer, testified he first learned of the conference when individuals fr om the media appeared in Metro’s lobby inquiring about it. Frank stated no permissi on was either sought or given to hold the conference. He admitted he was angry and confronted Anderson, informing her she had no permission to be there. Nevertheles s, Anderson continued to hold the press conference. On April 26, 2000, twenty-one Metro laboratory empl oyees belonging to OCAW authored a letter to OCAW Local President Jame s Gilman, informing him-31-

they were unaware of the litigation filed on their behalf to enjoin Metro’s treatment of the Lowry effluent until they read about it in t he newspaper. They further stated they were “confident about the safety issues involv ed, and [were] willing to treat groundwater from the Lowry Superfund site.” (Metro’ s Vol. II, Ex. 54.) In conclusion, they stated they did not support OCAW’s actions regarding Lowry and “[felt] that this issue [was] supportive of the per sonal agenda of Adrienne Anderson, and we do not wish to be associated with this fight , nor do we wish to fund this campaign with our union funds.” (Id. ) These employees also issued a letter to the editor of the Denver Rocky Mountain News expressing a similar sentiment. On December 20, 2000, a majority of the OCAW union mem bers at Metro voted to decertify OCAW as its collective bargaining agent. II. Procedural Background On May 2, 1997, in response to receiving Chairman P lastino’s April 16, 1997 letter threatening her with censure, Anderson filed a pro se complaint against Metro with the DOL alleging Metro retaliated against her for engaging in protected activities in violation of the employee protection provisions of seven environmental statutes: the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Solid Waste Disposal Act (SWDA), the Federal Water Pollution Control Act (FWPCA), the Energy Restoration Act of 1974 (ERA), the Safe Drinking Water Act (SDWA), the Clean Air Act (CAA) and the Toxic Substances31 In her formal statement of charges to Monica Oba, a DOL investigator,

Anderson also complained concerning (1) Hackworth’s accusations that she had lied at her confirmation hearing, (2) the Board’s attempts to silence her at her first regular Board meeting, (3) Hackworth angrily ruling her out of order when she requested to go into executive session at her f irst Operations committee meeting, (4) the treatment she received at Gaetano’ s restaurant, (5) Plastino’s telephone call raising other directors’ concerns ab out her, and (6) the alleged altering of the Board’s meeting minutes. -32- Control Act (TSCA). Specifically, she alleged Metr o took the following actions against her in retaliation for her protected activi ties: (1) circulating to the Board Plastino’s April 9, 1997 memorandum containing “unf ounded accusations and insinuations of impropriety,” (2) holding secret se ssions of two of the Board’s committees in her absence and without her knowledge , and (3) sending her the April 16, 1997 letter threatening her with censure. (And erson’s May 2, 1997 Complaint at 3.) She sought rescission of the “offending threat s,” declaratory relief, and “[a]ny other damages that may be related to this claim, in order to make [her] whole and protect [her] capacity to advocate for the workers [she] was designated to represent, as well as the wider public on environmental health and safety issues.” (Id. at 4.) 31 On June 6, 1997, David Decker, Regional SupervisoryInvestigator for the Occupational Safety and Health Administration of th e DOL, upheld Anderson’s claims under the whistleblower provisions of the CE RCLA, FWPCA and SWDA but made no findings on her claims under the other stat utes. Decker determined Metro had discriminated against Anderson by issuing “inti midating and threatening letters”32Anderson retained counsel on August 5, 1997, and c ontinues to be

represented by an attorney. -33- as a result of her “protected activities,” failing to “accurately reflect concerns and comments made by [Anderson] in public records of me etings held by the Board,” and refusing to “hear motions for amendments which [Anderson] made.” (Letter from David Decker to Joel Moritz dated June 6, 1990 7 at 1.) Decker ordered Metro to publically rescind the April 16 and May 20, 1997 letters and to make clear in the public record that Metro and its Board cannot discr iminate against employees and their representatives for participation in activiti es protected by the CERCLA, FWPCA and SWDA. Both Metro and Anderson appealed. Anderson did notappeal OSHA’s failure to make findings under the SDWA, CAA or TSCA but di d appeal “the questions of remedy and relief” and the “denial” of her claim un der the ERA. (Letter from
Anderson to Chief ALJ dated June 12, 1997.) Metro appealed “[a]ll adverse findings and determinations.” (Letter from Joel Mo ritz to Chief ALJ dated June 11, 1997.) The matter was referred to Administrative L aw Judge (ALJ) Samuel J. Smith. On appeal to ALJ Smith, Metro filed a Motion for Su mmary Decision, arguing Anderson lacked standing as an “authorized represen tative of employees” under the CERCLA, FWPCA and SWDA. Anderson opposed the motio n. 32 In support of her-34-

standing as an “authorized representative of employ ees,” she attached her own affidavit as well as affidavits from Ferrari and Ho lmstrom. On February 19, 1998, ALJ Smith granted Metro’s motion. He concluded And erson had failed to provide any evidence supporting her assertion she was the “ authorized representative” of Metro employees or the OCAW. Specifically, he stat ed Anderson had produced no correspondence between herself and OCAW or the Mayo r’s office in support of her claimed representative status or any documentation establishing when and how she became an authorized representative. Anderson appe aled to the Administrative Review Board (ARB). On March 30, 2000, the ARB reversed ALJ Smith’s dec ision and remanded the case for further proceedings. The ARB first ad dressed the meaning of “authorized representative” under the CERCLA, FWPCAand SWDA, determining it encompassed “any person requested by any employee o r group of employees to speak or act for the employee or group of employees in matters within the coverage of the environmental whistleblower statutes . . . . ” (ARB’s May 30, 2000 Decision & Remand Order at 7-8.) It further stated that “an individual selected by a union representing employees covered by the whistleblowerprotection provisions to speak or act for the union (and by extension the employee s) in matters within the purview of the environmental statutes . . . is also protect ed . . . .” (Id. at 8.) Based on the affidavits of Anderson, Ferrari and Holmstrom, the ARB determined there was a33 As we discuss below, the ERA, unlike the CERCLA, S WDA, and

FWPCA, limits relief to employees only.

34ALJ Smith had retired.

35 This allegation was based on Hackworth’s testimonyat the hearing that he had expressed to someone in the Mayor’s office t hat he hoped Anderson was not reappointed to the Board.

36In support of this allegation, Anderson points to a number of e-mails and documents in which Frank accuses Anderson of lying. She also points to his testimony that he provided a fact sheet to Denver P osteditor Al Knight which -35- genuine issue of material fact as to whether Anders on was an “authorized representative.” Therefore, it remanded the case f or a trial on the merits. As to the ERA, noting the difference between its statutory la nguage and the other three statutes, 33 the ARB directed the parties on remand to brief, a nd the ALJ to resolve, whether Anderson fell within its coverage. On remand, the case was assigned to ALJ David W. Di Nardi 34 and a seven day hearing was held on November 6-8 and 13-16, 200 0. After the hearing, Anderson filed a second and third whistleblower complaint under all seven environmental statutes based on alleged retaliatory conduct occurring subsequent to the hearing. The second complaint, filed on Decemb er 15, 2000, alleged Metro “acted to remove [her] from the [Metro Board] as a workers’ representative after [she] engaged in protected activity” 35 and “acted to defame [her] and . . . destroy [her] professional reputation in an organized campa ign . . . to [Metro employees], members of the media, state and government official s, legislators and others.” 36resulted in an article by Knight on Easter Sunday 1 999. In this article, Knight

states “Given Adrienne Anderson’s record for accura cy it is a wonder that anyone still listens to this self-appointed ‘environmental activist.’” (Anderson’s Vol. IIIA, Ex. 88.) Anderson claims Frank “set up” Knight to write this article. (Anderson’s Vol. III-C, Anderson Aff. ¶ 62.) Anders on also claims Hackworth defamed her outside the Board, referring to his statement in a July 1997 Westward article that she is a “troublemaker” who “hurls cha rges without much validity.” (Anderson’s Vol III-A, Ex. 66.) Anderson alleges that despite not making a specific disclaimer in this article that he was notspeaking on the Board’s behalf, Hackworth was not censored or reprimanded by the Bo ard.

37Anderson alleges Metro’s new rules pertaining to p ublic inspection of documents made it more difficult for her to obtain information by prohibiting the use of her own recording equipment, increasing the price of copies from 25 cents to $1.25 per page, restricting record review to Tue sdays and Thursdays, the days she teaches classes at the University of Colorado, and requiring her to be monitored during her review of documents. -36- (Anderson’s Dec. 15, 2000 Whistleblower Complaint at 2.) The third complaint, filed on January 5, 2001, asserted: (1) Frank false ly testified that Metro had not hired any outside public relations agent and that t here were no statements concerning Anderson in the package of materials he submitted for an award he received from the Water Environment Federation (WEF ), (2) Frank failed to produce several incriminating documents pursuant to Anderso n’s subpoena, (3) Metro altered its policy allowing access to its public records in direct response to and retaliation for Anderson’s attempts to obtain health and safety information in 1999 and greatly restricted her ability to obtain information under CORA, 37 (4) Metro circulated false and defamatory materials concerning Anderson to its workers which resulted in OCAW employees denouncing their support for her in their April 26, 2000 letter38This allegation concerns the materials Frank submi tted to the WEF, for

which he won an award. Anderson asserts these mate rials included defamatory statements about her.

39ALJ Di Nardi allowed the parties to conduct additi onal discovery concerning Anderson’s second and third whistleblowe r complaints. However, no additional hearing was held; all evidence concernin g these additional complaints was presented via affidavits and deposition testimo ny.

40ALJ Di Nardi found Metro had taken the following a dverse actions against Anderson based on her protected activities: “(a) cutting her off or ruling her out of order during Board meetings; (b) keeping her from voting on the Lowry settlement by delaying her confirmation by the City Council until June 1996; (c) ordering her off Metro property in March 2000 when she appeared for a press conference to voice her concerns about the Lowry se ttlement; (d) denying her requests to distribute material concerning the Lowry Landfill to the Metro Board or to put this issue on the Metro Board agenda; (e) denying her June 25, 1997 request for a special Board meeting to investigate public and worker health and safety concerns raised by Metro employees; (f) forc ing her to make Open Records Act requests for information, and then charging herfor such information; (g) -37- which Anderson alleges Metro asked its employees to sign, and (5) Metro led an “award winning” campaign of libel and slander to th e media, elected officials and others in an effort to destroy Anderson’s credibili ty and professional reputation. 38 (Anderson’s Jan. 5, 2001 Whistleblower Complaint at2-3.) These two complaints were consolidated with her May 2, 1997 complaint. 39 On September 18, 2001, ALJ Di Nardi issued a “Recom mended Decision and Order” in favor of Anderson. As to her initial May 2, 1997 complaint, he determined Anderson was an “authorized representati ve” of Metro employees under the CERCLA, SWDA, and FWPCA and Metro had retaliate d against her based on her protected activities. 40 He also determined her second and third whistlebl owermonitoring her activities and public statements; (h ) circulating derogatory e-mails

and other communications about her; (i) subjecting her, via an April 16, 1997 letter, to a special disclaimer requirement which w as not imposed on other Board members, specifically Ted Hackworth; (j) communicat ing its desire to the Denver Mayor’s office that she not be reappointed to the M etro Board, which resulted in her failure to be reappointed.” (ALJ Di Nardi’s Se pt. 18, 2001 Recommended Decision & Order at 59.) -38- complaints were timely. In granting relief on the supplemental complaints, ALJ Di Nardi determined Anderson could sue under all seven environmental statutes. He concluded that despite the difference in statutory language between them, all seven statutes should be interpreted consistently to allo w claims by employee representatives. Based on his finding of discrimin ation, ALJ Di Nardi ordered Metro to (1) expunge all negative references from A nderson’s personnel file including the “highly threatening” April 16, 1997 l etter from Plastino to Anderson, (2) cease and desist from retaliating against Ander son and its employees because of their protected activity, (3) provide a copy of the “Recommended Decision and Order” to a number of different agencies and indivi duals as well as post it on its website and in its facility, and (4) issue an apolo gy to Anderson in a full page paid ad in the Denver Post . (ALJ Di Nardi’s Sept. 18, 2001 Recommended Decis ion & Order at 77.) Additionally, he awarded Anderson $1 50,000 in compensatory damages, $150,000 in punitive damages (pursuant to 15 U.S.C. § 2622(b)(2)(B)(iv) (TSCA) and 42 U.S.C. § 300j-9(i)(2)(B)(ii)(IV) (SDWA)), and $125,000 for emotional distress. Metro appealed again to the ARB.41 Despite recognizing that the statutory language of the SDWA, CAA, TSCA and ERA was similar and did not afford a separ ate cause of action to authorized representatives of employees, the ARB ac tually denied relief under the SDWA, CAA and TSCA because they “are not applicable to the facts in this case.” (ARB’s May 29, 2003 Final Decision & Order at 8.) By this statement, it appears the ARB believed the SDWA, CAA and TSCA wer e no longer at issue in the case because Anderson had not appealed Decker’s initial failure to make findings regarding them. Indeed, Anderson’s brief to the ARB was misleading. On page six of her brief, Anderson states she seeks relief on appeal under the CERCLA, SWDA, FWPCA and ERA. However, on page thirty-seven, she seeks punitive damages under the SDWA and TSCA. It appea rs that despite any statements to the contrary in her brief, Anderson’s appeal to the ARB involved all seven environmental statutes. Nevertheless, the ARB did hold that the SDWA, CAA and TSCA, like the ERA, did not provide whistle blower protection to nonemployees. -39- On May 29, 2003, the ARB issued its “Final Decision and Order,” reversing ALJ Di Nardi’s decision. It first concluded Anders on was not entitled to relief under the ERA, SDWA, CAA, and TSCA because, unlike the other three statutes, these statutes only provided a cause of action to e mployees not their authorized representatives. 41 As to the CERCLA, SWDA and FWPCA, the ARB determi ned Anderson had failed to prove she was an “authorized representative” of Metro employees and therefore, failed to establish a nece ssary element of her claim under the whistleblower statutes. This appeal followed. III. Standard of Review We review a decision by the ARB under the Administr ative Procedure Act (APA), 5 U.S.C. §§ 701-706. Trimmer v. United States Dep’t of Labor , 174 F.3d 1098, 1102 (10th Cir. 1999). Consequently, it will only be set aside if it is-40-

“arbitrary, capricious, an abuse of discretion or o therwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The ARB’s factual det erminations will only be set aside if they are not supported by substantial evid ence. § 706(2)(E). “Substantial evidence is such relevant evidence a reasonable per son would deem adequate to support the ultimate conclusion.” Grubb v. F.D.I.C. , 34 F.3d 956, 961 (10th Cir. 1994). We review matters of law de novo, providing Chevron deference to the ARB’s construction of the environmental whistleblow er statutes. Trimmer , 174 F.3d at 1102. Under Chevron , we must first ask whether Congress has directly s poken to the precise question at issue. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842 (1984). “If the intent of Congre ss is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If we determine Congress has not directly spoken on the precise question at issue, i .e. the statute is silent or ambiguous, we do not simply impose our own construc tion on the statute, but rather, we must ascertain whether the agency’s interpretati on is a permissible construction of the statute. Id. at 843. IV. Discussion Before addressing the merits of this case, we must first decide whether Anderson has waived her claims under the ERA, SDWA, CAA and TSCA. In her42Because there were two ARB panels involved in this case, we will refer

to the ARB panel which issued the March 30, 2000 “D ecision and Remand Order” as “ARB I” or the “ARB I panel” and the ARB panel w hich issued the May 29, 2003 “Final Decision and Order” as “ARB II” or the “ARB II panel.” -41- opening brief, Anderson expressly states in a footn ote that she is seeking relief on appeal under the CERCLA, SWDA, FWPCA and ERA. Alth ough she includes the ERA in this footnote, she fails to assert any argum ent concerning the ARB II panel’s 42 determination that the ERA only provides a cause o f action to employees. Based on these deficiencies, Metro argues Anderson has waived her claims under the ERA, SDWA, CAA and TSCA. After filing her opening brief, Anderson obtained n ew counsel. Her current counsel has filed a Motion to Correct and/or Clarif y Opening Brief on her behalf. In this motion, Anderson contends her former counse l inadvertently omitted the SDWA, CAA and TSCA and she never intended to waive the relief she was awarded by ALJ Di Nardi under those statutes. She asserts this is evident in the conclusion of her opening brief in which she requests affirman ce of ALJ Di Nardi’s decision “in its entirety.” (Anderson’s Amended Opening Br. at 29.) Anderson also points out that none of the issue statements in her openin g brief mention any particular statute and because the scope of all seven environm ental statutes is the same, her arguments apply to them all. Lastly, as to her cla ims under the ERA, Anderson maintains she did not waive them because she specif ically stated in her opening43 The Secretary of the DOL also filed a brief in thi s appeal. However,

because its position essentially mirrors that of Me tro, we will refer to Metro only. -42- brief she was seeking relief under the ERA and thatthe ARB II’s decision concerning the ERA was erroneous. Metro opposes Anderson’s motion. 43 It notes: (1) citations to the SDWA, CAA and TSCA were not only omitted from Anderson’s opening brief but also from the jurisdictional statement of her docketing state ment and her statement of issues, (2) because the ARB II panel’s denial of relief und er the ERA, SDWA, CAA and TSCA was based on a different ground than its denia l under the other three statutes, Anderson’s former counsel apparently made a strateg ic decision not to appeal under the ERA, SDWA, CAA and TSCA, and (3) although Ander son raises the ERA in her opening brief, she fails to identify as an issue orto even superficially challenge the ARB II’s decision that the ERA does not provide a c ause of action to employee representatives. The failure to raise an issue in an opening brief w aives that issue. State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). “An issue not included in either the docketing statement or the s tatement of issues in the party’s initial brief is waived on appeal.” Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Continental Ins. Co. , 891 F.2d 772, 776 (10th Cir. 1989). Consistent w ith these principles is the general rule that “appellate courts will not entertain issues raised-43-

for the first time on appeal in an appellant’s repl y [brief].” Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1277-78 (10th Cir. 1994). The reas ons for this rule are plain: It robs the appellee of the opportunity to demonstr ate that the record does not support an appellant's factual assertions and to pr esent an analysis of the pertinent legal precedent that may compel a contrary result. The rule also protects this court from publishing an erroneous op inion because we did not have the benefit of the appellee's response.

Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000) (citation omitted). Nevertheless, there are “circumstances in which a c ourt may consider, or even raise sua sponte , arguments ignored or left undeveloped by counsel in the first round of briefing.” Herbert v. National Acad. of Sciences , 974 F.2d 192, 196 (D.C. Cir. 1992); see also Headrick, 24 F.3d at 1278. For example, we are always obli gated to consider our jurisdiction, regardless of whether orwhen the parties raise it. Herbert , 974 F.2d at 196. Here, despite Anderson’s failure to address the SDWA, CAA or TSCA or to present any argument concerning the ERA in her open ing brief, we will consider these statutes on appeal, specifically, whether the ARB II panel erred in determining they only provide relief to employees, not their au thorized representatives. In doing so, the reasons for our waiver rule will not be def eated. The parties adequately briefed this issue during the administrative procee dings; thus, we have the benefit of both parties’ position on the issue. The issue was also addressed by both ALJ Di44Consequently, we grant Anderson’s Motion to Correc t and/or Clarify

Opening Brief and deny Metro’s Motion to Strike And erson’s Reply Brief or in the Alternative to File a Sur-Reply. -44- Nardi and the ARB II panel. Further, because we ag ree with Metro that these statutes only provide a remedy to employees, which we discuss next, Metro will not be prejudiced. 44 A. Whether Anderson can proceed under the ERA, SDW A, CAA, TSCA Before discussing whether Anderson can proceed unde r the ERA, SDWA, CAA and TSCA, we pause briefly to address what we a re not deciding in this case. We are not deciding the propriety of Metro’s agreem ent to treat the Lowry effluent or whether there is plutonium or other radionuclide s present in the Lowry waste stream. Our task is limited to ascertaining whethe r Anderson, as a Board director, can proceed under the employee protection provision s of the environmental statutes. We start with the ERA, SDWA, CAA and TSCA. The employee protection provision of these statutes provide: No employer may discharge any employee or otherwise discriminate against any employee with respect to [his or her] compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee ) [engaged in protected activity].
See 15 U.S.C. § 2622(a)(TSCA); 42 U.S.C. §§ 300j-9(i)( 1) (SDWA), 5851(a)(1) (ERA), 7622(a) (CAA) (emphasis added). In contrast , the same provision under the CERCLA, SWDA and FWPCA provide:45 These statutes provide:

Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against b y any person in violation of subsection (a) of this section may . . . apply to the Secretary of Labor for a review of such firing or a lleged discrimination. . . .
See 33 U.S.C. § 1367(b) (FWPCA); 42 U.S.C. §§ 6971(b) (SWDA), 9610(b) (CERCLA) (emphasis added).

46These statutes state: Any employee who believes that [he or she] has been discharged o r otherwise discriminated against by any person . . . may . . . file (or have any person file on his behalf) a complaint wit h the Secretary of Labor. . . alleging such discharge or discriminatio n . . . . See 15 U.S.C. § 2622(b)(1) (TSCA); 42 U.S.C. §§ 300j-9 (i)(2)(A) (SDWA), 5851(b)(1) (ERA), 7622(b)(1) (CAA) (emphasis added)

.

-45- No person shall fire, or in any other way discrimin ate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative [engaged in protected action under this statute].
See 33 U.S.C. § 1367(a) (FWPCA); 42 U.S.C. §§ 6971(a) (SWDA), 9610(a) (CERCLA) (emphasis added). The remedial provisions of the seven statutes are also dissimilar. While the CERCLA, SWDA and FWPCA provide a remedy for either an employee or an employee’s representative, 45 the ERA, SDWA, CAA and TSCA expressly provide a remedy only to an employee

. 46 Although recognizing the difference in their statut ory language, ALJ Di Nardi nevertheless concluded Anderson was covered under a ll seven environmental-46-

statutes. He determined all seven statutes should be interpreted consistently based on (1) Congress’ intent to protect employee represe ntatives, (2) the legislative history, and (3) the fact the DOL has administered and interpreted all seven statutes through a single uniform body of regulations, speci fically, 29 C.F.R. Part 24. Therefore, he concluded the language “any person ac ting pursuant to a request of the employee” in the ERA, SDWA, CAA and TSCA should be construed to allow claims by employee representatives. The ARB II pan el disagreed. Relying on the plain meaning of the statutory language, it conclud ed that even if “any person acting pursuant to a request of the employee” has the same meaning as “authorized representative,” the ERA, SDWA, CAA and TSCA do notprovide a cause of action for “any person acting pursuant to a request of the employee” but rather only to the employee. Therefore, it determined “Congress must have intended that only employees would be entitled to file a claim” under these statutes. (ARB’s May 29, 2003 Final Decision & Order at 8.) Consequently, i t concluded Anderson was precluded from seeking relief under these statutes. In her reply brief, Anderson advocates ALJ Di Nardi ’s position. She claims that while the standing provisions of the ERA, SDWA , CAA and TSPA are different from those contained in the CERCLA, SWDA and FWPCA, the legislative purpose behind each is the same and thus all seven statutes should be construed consistently to permit employee representatives to seek protecti on under them. She alleges the-47-

ARB II’s decision to the contrary is unreasonable g iven the remedial purpose of these statutes and the DOL’s singular uniform body of regulations implementing them. Although Metro did not address this issue in its responsive brief (due to Anderson’s failure to raise it in her opening brief ), its position is no mystery given its briefing during the administrative proceedings. It contends the statutory language and legislative history of the ERA, SDWA, CAA and TSPA demonstrate that employee representatives are not protected und er these acts. Additionally, it asserts that because of the significantly differentlanguage between these statutes and the CERCLA, SWDA and FWPCA, it is clear Congres s intended them to have different meaning. “Our analysis of statutory construction must begin with the language of the statute itself, and [absent] a clearly expressed le gislative intention to the contrary, that language must ordinarily be regarded as conclu sive.” NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. 2003) (citations and quo tations omitted). As in all statutory construction cases, we begin wi th the language of the statute. If the statutory language is not ambiguou s, and the statutory scheme is coherent and consistent, further inquiry is unneeded. The plainness or ambiguity of statutory language is det ermined by reference to the language itself, the specific context in whi ch that language is used, and the broader context of the statute as a w hole.
In re Wise , 346 F.3d 1239, 1241 (10th Cir. 2003) (citations a nd quotations omitted). See also Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 253-54 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means47Anderson argued to the ARB II panel she was Metro’ s “employee.” The

ARB II rejected this argument, noting it was in dir ect conflict with previous concessions Anderson made. Anderson has not repeat ed this argument on appeal. -48- in a statute what it says there.”). Here, the plain language of the ERA, SDWA, CAA and TSCA is clear – while the ERA, SDWA, CAA and TSCA prohibit discriminationbased on an employee’s or his representative’s protected activity, the dis crimination must be directed toward the employee and it is the employee, not his repres entative, which is clothed with a cause of action for that discrimination. Anderson was not Metro’s employee. 47 Therefore, further inquiry is inappropriate. Moreo ver, “[w]here Congress includes particular language in one section of a statute butomits it in another section of the same Act, it is generally presumed that Congress ac ts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States , 464 U.S. 16, 23 (1983) (quotations omitted). Although this rule do es not strictly apply here because the seven whistleblower statutes are not all part o f the same Act, its reasoning is instructive. Based on the language of the CERCLA, SWDA, and FWPCA, Congress knew how to provide whistleblower protection to emp loyees and “authorized representatives of employees.” Therefore, the abse nce of such similar language in the other four statutes is telling. In concluding Anderson was covered under the ERA, S DWA, TSCA and CAA, ALJ Di Nardi relied in part on the uniform reg ulations applicable to all seven4829 C.F.R. § 24.1(a), (b) provides:

(a) This part implements the several employee prot ection provisions for which the Secretary of Labor has been given respons ibility pursuant to the following Federal statutes: [SDWA, FWPCA, TSCA, SWD A, CAA, ERA and CERCLA]. (b) Procedures are established by this part pursuant to the Federal statutory provisions listed in paragraph (a) of this section, for the expeditious handling of complaints by employees, or persons act ing on their behalf, of discriminatory action by employers.

-49- statutes. Although this is true, see 29 C.F.R. § 24.1(a), (b), 48 the regulations only proscribe discrimination against an employee, § 24. 2(a), and only confer a cause of action for such discrimination on the employee. See § 24.3(a) (“ [A]n employee who believes he or she has been discriminated against b y an employer . . . may file, or have another person file on his or her behalf, a co mplaint . . . .”) (emphasis added). Indeed, the regulations substantially mirror the la nguage of the ERA, SDWA, CAA and TSCA. Therefore, the mere fact one set of impl ementing regulations applies to all seven statutes does not override the plain lang uage of the ERA, SDWA, TSCA and CAA which provides relief only to employees. Based on the above, we affirm the ARB II’s determin ation that Anderson cannot proceed under the ERA, SDWA, TSCA or CAA. W e now turn to whether Anderson was an “authorized representative of emplo yees” under the CERCLA, SWDA, and FWPCA while serving as a director on Metr o’s Board.-50-

B. Whether Anderson is an “authorized representative of employees” under CERCLA, SWDA, and FWPCA In order to establish a prima facie claim of discri mination under the employee protection provisions of the CERCLA, SWDA and FWPCA , Anderson must show: (1) she is an employee or authorized representative of employees, (2) she engaged in protected activity; (3) Metro knew of the protected conduct; (4) the alleged discrimination occurred; and (5) a nexus exists mak ing it likely that the protected activity led to the alleged discrimination. See Simon v. Simmons Foods, Inc. , 49 F.3d 386, 389 (8th Cir. 1995). Applying the parame ters set forth by the ARB I panel to the term “authorized representative of emp loyees,” the ARB II panel concluded Anderson failed to prove she was an “auth orized representative” of Metro employees or OCAW and therefore, failed to establis h an essential element of her claim under the CERCLA, SWDA, and FWPCA. In reaching this decision, the ARB II panel first d etermined Anderson could not, as a matter of law, “represent” employees as aBoard director because (1) the Colorado statutes governing Metro only authorize di rectors to represent the citizens of the appointing municipality, not a particular in terest group or segment of society, (2) Metro’s by-laws, which define the duties of a d irector, do not refer to a director’s representation of employees and specific ally require a director’s recusal on matters in which the director has a personal or private interest, thereby strongly indicating that a director may not serve two master s, and (3) Mayor Webb appointed-51-

Anderson to serve on the Board as the City of Denve r’s representative and his motivation for the appointment did not confer on he r the legal authority to act as an authorized representative of employees. The ARB II panel further concluded Anderson did not establish by a preponderance of th e evidence that Metro employees or OCAW officials “authorized” her to be their representative during her tenure on the Board. It found “Anderson was, at be st, self-authorized.” (ARB May 29, 2003 Final Decision & Order at 13.) It also di scounted the testimony of Ferrari, Farmer, Holmstrom and other individuals associated with OCAW that Anderson was the OCAW’s or its employees’ representative, conclu ding that “none of [these individuals’] personal states of mind conferred anyauthority on Anderson to be OCAW’s authorized representative.” ( Id. at 16.) In conclusion, the ARB II stated: “[T]he union’s wishes and public perceptions did no t confer ‘authorized representative’ status [on Anderson], any more than one’s affinity for political discourse makes one an official representative of aparticular point of view or being sympathetic to a particular point of view gives the sympathizer the authority to act as an agent for one similarly inclined.” ( Id. at 17-18.) Anderson challenges the ARB II panel’s decision in several respects. First, she asserts that by requiring “legal” authority, rather than merely a simple request by employees to represent them, the ARB II’s decisi on was unduly narrow, thereby violating the broad remedial purposes of the statut es and directly conflicting with-52-

the ARB I panel’s construction of the term “authori zed representative of employees.” Anderson further maintains that nothin g in the Colorado statutes or Metro’s by-laws prohibited her from representing wo rkers’ interests while serving as a director. Lastly, she asserts the evidence cl early established that individual Metro employees, groups of Metro employees and OCAWrepeatedly requested her to speak and act on their behalf concerning environ mental, public and worker safety issues. Therefore, she contends the ARB II’s decis ion to the contrary is not supported by substantial evidence. Metro argues we should affirm the ARB II’s decisionin its entirety. While conceding that directors may presumably advocate on behalf of a particular interest, Metro contends the Colorado statutes and Metro by-l aws clearly provide that Board directors are representatives of the citizens of th eir appointing municipality. It contends the mere fact Anderson was sympathetic to OCAW’s position and may have harbored labor-friendly views did not make herOCAW’s “authorized representative” any more than a United States Senat or endorsed by the AFL-CIO is that union’s representative. Metro further maintai ns that substantial evidence supports the ARB II’s decision that Anderson failedto prove she was an “authorized representative” of Metro employees or OCAW. It poi nts out that no documentation from the OCAW identifying her as its representative exists and none of the communications from OCAW officials to Metro or the public refer to Anderson as-53-

OCAW’s representative. Metro also contends the ARB I panel’s decision is irrelevant because it is the ARB II decision which is being reviewed and in any event, the two decisions are not inconsistent. Las tly, Metro asserts Anderson’s whistleblower complaints merely represent the frict ion that existed between her and her fellow Board members who held contrary views. It maintains the environmental whistleblower statutes were not intended to encompa ss claims by political appointees challenging discord in the legislative a nd policy-making process. Before we can determine whether the ARB II panel co rrectly found that Anderson was not an “authorized representative of e mployees,” we must first define that term. The statutes and implementing regulatio ns do not define the term nor does case law provide any guidance. Below, the ARB II panel relied on the ARB I panel’s interpretation of “authorized representativ e.” The ARB I panel examined not only the statutes’ plain language but also thei r legislative history. Because the legislative history of the FWPCA (the forerunner of the environmental whistleblower statutes) indicated its employee prot ection provision was patterned after the National Labor Management Act (NLMA) and a similar provision in the Coal Mine Health and Safety Act (CMHSA), see S. R EP . N O . 92-414 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3748, the ARB I panel bega n its analysis with these statutes. The NLMA’s employee protection pro vision (29 U.S.C. § 158(a)(4)) does not include the phrase “authorized representat ive of employees.”49The ARB I panel relied on the CMHSA as it existed when it was first

enacted in 1969. See Federal Coal Mine Health and Safety Act of 1969, P ub. L. No. 91-173, § 110(b)(1), 1969 U.S.C.C.A.N. 823, 841 . The current version of the employee protection provision of the CMHSA does notcontain the word “authorized.” See 30 U.S.C. § 815(c)(1), (2). Its implementing regu lations, however, define “representative of miners” as inclu ding “[r]epresentatives authorized by the miners, miners or their represent ative, authorized miner representative, and other similar terms as they app ear in the act.” 30 C.F.R. § 40.1(b)(2).

-54- Consequently, the ARB I panel turned to the CMHSA’s employee protection provision (which did prohibit discrimination agains t “any authorized representative of miners”) and its legislative history. 49 This history explained the meaning of “representative of the miners” as including “any in dividual or organization that represents any group of miners at a given mine [and ] does not require that the representative be a recognized representative under other labor laws.” C ONF . R EP
. N O . 91-761 (1969), reprinted in 1969 U.S.C.C.A.N. 2578, 2582. Relying on this definition and the remedial nature of the environme ntal whistleblower statutes, the ARB I panel concluded “authorized representative of employees” under the CERCLA, SWDA and FWPCA should be given a comparablybroad meaning. Therefore, it concluded Anderson was an “authorized representative of employees” if a Metro employee, group of Metro employees or a union requested or selected her to speak or act for the employee, group of employee s or union within the purview of the CERCLA, SWDA or FWPCA. Although the ARB II rel ied on the ARB I’s50Anderson argues inter alia that the ARB II’s decision should be reversed

because its construction of “authorized representat ive” directly conflicts with the ARB I panel’s construction of that term, thereby implying it violates the law of the case doctrine. However, our review is of the ARB II’s decision and therefore, its construction of the term is the one we examine. Additionally, we have found no cases applying the law of the case do ctrine between administrative courts. In any event, the ARB II reasonably constr ued the ARB I’s use of the word selection as requiring some tangible act of se lection. -55- construction of “authorized representative,” it foc used on the word “selection,” concluding that the ARB I’s use of this word sugges ted there must be some tangible act of selection by employees in order for one to b e an “authorized representative of employees.” In reviewing the ARB II’s 50 construction of the term “authorized representative of employees,” our first step under Chevron is to determine whether Congress’ intent is clear; if so, we must give effect to that intent. Chevron , 467 U.S. at 842-43. To determine whether Congress had an intent on the precise question at issue, courts utilize the traditional t ools of statutory construction, including the statutory language and legislative history. Id. at 843 n.9; see also State of Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995). Here, the p lain meaning of “authorized” is “1: [gave] authority to: empower[ed][;] 2: [gave] legal or official approval to . . .[;] 3: [established] by o r as if by authority: sanction[ed].”
W EBSTER ’ S C OLLEGE D ICTIONARY 59 (2003). Black’s Law Dictionary defines it as: “1. [gave] legal authority; . . . empower[ed] . . . 2. [] formally approve[d]; . . .-56-

sanction[ed] . . . .” B LACK ’ S L AW D ICTIONARY 129 (7th ed. 1999). The plain meaning of “representative” is “standing or acting for another especially through delegated authority . . . .” W EBSTER ’ S C OLLEGE D ICTIONARY 762 (2003). Black’s Law Dictionary defines it as “[o]ne who stands for or acts on behalf of another. . . .”
B LACK ’ S L AW D ICTIONARY 1304 (7th ed. 1999). Therefore, based solely on th e statutory language used, the term “authorized repre sentative” appears to require some sort of tangible delegation to act in one’s sh oes. We next turn to the legislative history. The legis lative history of the FWPCA, the forerunner of the CERCLA and SWDA, states the p urpose of its employee protection provision was to “offer[] protection to employees who believe they have been fired or discriminated against as a result of the fact they have testified or brought suit under [the FWPCA].” S. R EP . N O . 92-414 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3748 (emphasis added). It furth er provides: [The employee protection provision was] patterned a fter the [NLMA] and a similar provision in Public Law 91-173 [the C MHSA of 1969] . . . . Under this section employees and union officials could help assure that employers do not contribute to the degradation of our environment. Any worker who is called upon to testify or who gives informat ion with respect to an alleged violation of a pollution cont rol law by his employer or who files or institutes any proceeding to enforce a pollution control law against an employer may be su bject to discrimination. The section would prohibit any fir ing or discrimination and would provide an administrative procedure underwhich the employee or his representative could seek redress for any violation of this prohibition. . . . Id. (emphasis added).-57-

The employee protection provision of the CMHSA of 1 969 (Public Law 91- 173) prohibited discrimination against “any miner o r any authorized representative of miners” and provided a remedy for “any miner or a representative of miners.”
See Federal Coal Mine Health and Safety Act of 1969, P ub. L. No. 91-173, § 110(b)(1), (2), 1969 U.S.C.C.A.N. 823, 841. Its le gislative history defined “representative of miners” as including “any indivi dual or organization that represents any group of miners at a given mine [and ] does not require that the representative be a recognized representative under other labor laws.” C ONF . R EP
. N O . 91-761 (1969), reprinted in 1969 U.S.C.C.A.N. 2578, 2582. The NLMA contains a provision describing unfair labor practi ces by an employer. One such practice is “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony . . . .” 29 U .S.C. § 158(a)(4) (emphasis added). Its definitions section defines “representatives” a s “includ[ing] any individual or labor organization.” 29 U.S.C. § 152(4). Unlike the ARB I panel, we find the legislative his tory not particularly helpful in ascertaining Congress’ intent. Although the CMHSA of 1969 utilized the term “authorized representative of miners,” its leg islative history only defined “representative of the miners.” Additionally, the NLMA does not prohibit discrimination against employee representatives and its definition of “representative” does not include the word “authori zed.”51 In her reply brief, Anderson argues for the firsttime that even if she was

not an “authorized representative” while a director , she was such representative after she was “removed” from the Board in June 1998 . Due to her failure to raise this argument in her opening brief, we consider it waived. State Farm Fire & Cas. Co. , 31 F.3d at 984 n.7. -58- Based on the above, although the plain meaning of t he words provides some guidance, we conclude Congress’ intent in using the term “authorized representative” is far from clear. For instance, e ven applying the plain meaning of the terms, Congress could have intended to protect only individuals employed by a union or those individuals under contract to repres ent an employee or group of employees, i.e. an attorney or union. Therefore, under Chevron , our inquiry becomes whether the ARB II’s construction of “autho rized representative” is a permissible one. Under this standard, “[t]he agency’s interpretation need not be the only one it could have adopted, or the one that thi s court would have reached had the question initially arisen in a judicial proceeding.” See Salt Lake City v. Western Area Power Admin. , 926 F.2d 974, 978 (10th Cir. 1991). Based on the statutory language and the legislative history of the statute s, we conclude the ARB II’s construction of “authorized representative” to requ ire some sort of tangible act of selection is a permissible one. We now turn to the ARB II’s conclusion that Anderso n failed to show she was an “authorized representative of employees” while serving as a Board director. 51 As stated previously, the ARB II panel’s decision cont ained a legal and factual52We express no opinion as to whether a letter, simi lar to the one Ferrari

sent Mayor Webb seeking Anderson’s appointment to the Board, would be sufficient in a different context to authorize an i ndividual to represent employees. -59- component. Therefore, under the APA, our review of the legal issue is de novo; we review its factual findings to determine whether th ey are supported by substantial evidence. Trimmer , 174 F.3d at 1102 (citing 5 U.S.C. § 706(2)). We agree with the ARB II that as a Board director, Anderson could not, as a matter of law, “represent” Metro employees or OCAW because she was legally required to represent the citizens of Denver, not a ny particular segment of society or a particular interest group. We further agree thatany political motivation behind her appointment to the Board is irrelevant. We als o conclude the ARB II’s factual conclusion that Anderson failed to prove she was “a uthorized” to represent Metro employees or OCAW while on the Board is supported b y substantial evidence. As the ARB II stated, Anderson’s evidence of authorization amounted to selfauthorization at best. Additionally, none of the i ndividuals who testified in favor of Anderson’s alleged “authorized representative” stat us could point to any documentation placing Metro on notice that Anderson ’s appointment to the Board was any different than any other director’s appoint ment. Indeed, Anderson testified there was none. Merely seeking a director sympathe tic to one’s views is insufficient to demonstrate a delegation of representative authority. 52
In addition to the ARB II’s well-reasoned conclusio ns, the nature of-60-

Anderson’s complaints demonstrate she is not entitl ed to protection under the environmental whistleblower statutes. Anderson claims inter alia that Metro discriminated against her by cutting her off or rul ing her out of order at meetings, denying her requests to distribute material and fora special Board meeting, subjecting her to a special disclaimer requirement when making public statements and threatening her with censure if she did not do so, omitting allegedly relevant actions in Board meeting minutes, seeking that she not be reappointed to the Board, and defending its position on Lowry to the media an d public, which included defaming her and destroying her personal reputation . We have difficulty understanding how those complaints amount to “discr imination” from which these statutes afford protection. While frustrating and unpleasant, the matters about which she complains appear to be part of the rough and tumble of politics and the by-product of a minority position on a political bo ard. A political remedy is best suited to a political wr ong. The political process brought Anderson to the Board and she obviously und erstands its role in board dynamics and decision-making. In concert with othe rs she publically advocated her position, advertised her disagreement with past dec isions, and made her differences with the Board a matter of public debate. Clearly, she hoped to rally public opinion to her point of view and thereby influence the Boar d’s decisions. Just as clearly, that is her right. Public service should encourage , not muzzle, public debate. On53 For example, in the article “Radioactive Sludge,” which was published

April 26, 1997, in In These Times , Anderson is quoted as saying: “I was chided for informing workers at Metro about the plan. . . . The board chairman told me that there were board members who thought I was bei ng devious for looking into this issue.” (Anderson’s Vol. III-A, Ex. 51 at 1-2 (quotations omitted)). Additionally, in the article “Sister Sludge,” which appeared in the Westwardon July 24, 1997, Anderson is quoted as follows: “[Metro] is a cesspool of threats and intimidation. . . . [It] launched a defamation campaign to portray me as a wacko.” (Id. , Ex. 66 (quotations omitted)). -61- the other hand, Anderson should not have been surpr ised when bare knuckles were met with bare knuckles. And when the gloves came o ff bloody knuckles as well as bloody noses were exposed to public view and commen t. Her claims that she suffered disparate, even disparaging, treatment was rightfully part of her very public campaign to win the hearts and minds of the greater Denver citizenry. 53 But it does not follow that her political wounds need be met wi th healing balm in this forum. She has pointed to no case, and we can find none, layering whistle-blower protections on an overtly political process such as this. That is not surprising. Selectively providing the insulating blanket of whi stle-blower protection to one political appointee on a public board might well di sadvantage other board members and alter group dynamics; assuredly it would impactthe Board’s decision-making process. Anderson might embrace that as wholesome. But fairness, like beauty, is often a matter of perspective. Our detailed review of the record reveals Anderson’ s perspective to be quite narrow. While complaining that Metro made defamato ry remarks against her, she-62-

fails to acknowledge her own statements to the medi a accusing Hite of lying and describing Metro as a “cesspool of threats and inti midation.” (Anderson’s Vol. IIIA, Ex. 66.) Apparently, Anderson believes Metro sh ould have just sat back and allowed her to make such statements without defendi ng itself, in particular its position on Lowry. This skewed perspective is read ily apparent from Anderson’s April 20, 2001 deposition, where the following exch ange occurred between Metro’s counsel and Anderson: Q. Before we broke for lunch, you talked about Mr. [F rank’s] references . . . to you as a dissident board member, and he also said that you weren’t telling the truth. Do you recall that testimony?

. . . A. Yes. Q. And you seem offended by that.
A. Yes. Q. In the “Sister Sludge” article . . . you say that Marc Herman [from the EPA] is lying in an effort to save the government money. Did you tell that to [the author]? A. Yes, I did. Q. Is that defamation?
A. No. Q. Because you’re telling the truth, aren’t you? A. Yes, and he is not. (Anderson’s Apr. 20, 2001 Depo. at 74-75.)-63-

The essence of Anderson’s complaints is that the Bo ard would not listen to her. However, the record demonstrates numerous ins tances where Anderson was given the opportunity to be heard by the Board. Fo r instance, Anderson was allowed to be heard at the December 1996 Operations committ ee meeting in which she informed the committee that she would be speaking o ut against Metro’s treatment of the Lowry effluent. She was also allowed to speak against Plastino’s proposed resolution at the April 15, 1997 Board meeting. Ad ditionally, Anderson’s request for a special Board meeting was mailed to all directors and she frequently distributed materials to directors at meetings. Anderson was a lso allowed to be heard at the August 1997 Operations committee meeting concerning alleged omissions in the committee meeting minutes and the propriety of tape -recording the meetings. She was permitted to speak out against the Lowry settle ment at the June 17 and July 15, 1997 meetings and again at the November 18, 1997 an d June 16, 1998 meetings, where she voiced her concerns that Metro’s treatmen t of the Lowry effluent would affect the quality of its bio-solids. Moreover, An derson was always allowed to vote “no” on any issue before the Board with which she d isagreed and she exercised this right on a number of occasions. With boundless ene rgy, and enthusiasm to match, Anderson appears to believe that one who listens ca refully will not only hear, but also heed, her words. Her unbridled zeal demands attention without regard to correlative rights; one board member’s right to spe ak is no more potent than another-64-

member’s right to lend a deaf ear. The ARB II panel correctly concluded Anderson lacke d standing to sue under the CERLCA, SWDA, and FWPCA. V. Conclusion We GRANT Anderson’s Motion to Correct and/or Clari fy Opening Brief and the Secretary of Labor’s unopposed Motion to Supple ment the Record. Concluding Anderson has no standing to pursue her whistleblowe r complaints under the CERCLA, SWDA, FWPCA, ERA, SDWA, CAA and TSCA, we AF FIRM the ARB II panel’s May 29, 2003 Final Decision and Order in it s entirety. Based on this conclusion and finding no prejudice to Metro, we DENY Metro’s Motion to Strike Anderson’s Reply Brief or in the Alternative to Fil e a Sur-Reply.