The facts are stated in considerable detail in the ALJ's R. D. & O. at pp. 4-52. Briefly, Plaas is an industrial mechanical contractor that was performing welding work on a new construction project for Bimbo Cereal in Dawn, Texas, when Mourfield was hired on November 10, 1998, as a welder/pipefitter. R. D. & O. at 4, 6. Plaas was scheduled to begin work on that project in August 1998, but actually began work in September. R. D. & O. at 7. The work was to be completed in December. R. D. & O. at 5. Mourfield was laid off on December 23, 1998, in accordance with a reduction in force plan arrived at in November 1998. R. D. & O. at 8. Plaas continued to reduce its workforce at the Bimbo Cereal site until April 1999, when no Plaas personnel or equipment remained at the worksite. R. D. & O. at 49.

   Mourfield alleged that he engaged in a number of protected activities before his lay-off, including union organizing activities and complaints about occupational safety and health. Mourfield's alleged protected complaints pertained to: 1) leaking of argon gas from cylinders used in welding; 2) open burning of trash on nearby land; 3) the existence of a hostile work environment; 4) failure to train him in the Hazard Communication (Right to Know) program and the Material Safety Data Sheet (MSDS) program; 5) the presence of an intoxicated worker on the job site; 6) miscellaneous unsafe work practices.

R. D. & O. at 74-78. He found that the latter four did constitute adverse employment actions, but that Mourfield did not carry his burden of showing that they were motivated by retaliation. Mourfield withdrew his claim that complaints about a hostile working environment were protected activities. R. D. & O. at 65. In any event the ALJ found that any hostile work environment came from Mourfield's fellow workers in response to his union activities, and that Mourfield failed to establish Plaas' responsibility for any such environment. R. D. & O. at 75.

   The ALJ found that Mourfield had failed to demonstrate that Plaas' reasons for its actions were pretexts for discrimination and that Mourfield had not carried his burden of proof that protected activity was a motivating factor in the adverse actions. The ALJ recommended that the complaint be dismissed. Id. at 84.

   Complainant does not contest before us any of the ALJ's factual findings. His principal argument is that the ALJ's tangential, somewhat tentative finding that Plaas may have been motivated in its adverse actions against Mourfield by anti-union animus and by Mourfield's OSHA complaints, demonstrates that Plaas acted out of "illegitimate" motives. Mourfield challenges the ALJ's legal conclusion, which was based on the Secretary's and the ARB's decisions under the environmental whistleblower laws, that the safety or health hazard complained of must "touch upon" or be "reasonably perceived" as a hazard to the environment and public safety and health to be protected and that hazards limited to a workplace but not endangering the public are not protected. Mourfield also seeks review of the ALJ's finding that pro-union activities do not "fall under environmental whistleblower protection." R. D. & O. at 64.

   Mourfield's brief assumes that he proved that discrimination was a motivating factor in Plaas' adverse actions and that the ALJ should have reached the "dual motive" stage of the analysis. Under that analysis, Mourfield's key argument is that an employer cannot carry its burden of proof that it would have taken the same action against the Complainant for legitimate reasons when the reasons assigned by the employer are unlawful under other laws. Mourfield argues, "[t]he employer bears the burden to show that it would have taken action without its illegal motives. A 'legitimate' reason is a lawful reason. See Black's Law Dictionary. A facially discriminatory explanation is definitely not 'legitimate.'" Brief of Complainant David B. Mourfield, II, at p. 5. Mourfield continued, "Respondent's discrimination against union protected activity is not a legitimate reason because it is an unlawful reason." Id. at 8.

   To state a claim under the environmental acts, the complainant must show: 1) that he engaged in protected activity; 2) that the respondent knew about the protected activity; 3) that the respondent took adverse action against him; and 4) that the protected activity was the likely reason for the adverse action. See Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), aff'd sub nom. Carroll v. Dep't of Labor, 78 F.3d 352 (8th Cir. 1996), citing Dartey v. Zack Co. of Chicago, 82-ERA-2, slip op. at 7-8 (Sec'y Apr. 25, 1983). In other words, the complainant must prove by a preponderance of the evidence that the employer discriminated intentionally and thus the burden rests always with the complainant. To meet this burden, a complainant may prove that the legitimate reasons proferred by the employer were not the true reasons for its action, but rather were a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-508 (1993).

   As a threshold matter, there is considerable doubt that Mourfield proved that any of his activities were protected under the environmental statutes on which he relied here. We agree with the ALJ that all of the alleged protected activities, except for the complaint about leaking argon, were not protected. It is questionable whether the latter belief was reasonable; as the ALJ noted, the hazards of argon gas are asphyxiation, which could only occur in a confined space, and cylinder rupture, both of which are clearly occupational safety hazards, not environmental. This issue is moot, however, in light of our ultimate conclusion, discussed below, that Mourfield did not carry his burden of proof that retaliation for raising environmental safety concerns was a motivating factor in any of the alleged adverse actions taken against him.

   This case is similar to Carroll v. U.S. Dep't of Labor, 78 F.3d 352 (8th Cir. 1996), and the ALJ's analysis should have proceeded along similar lines:

Assuming Carroll established a prima facie case under Couty [v. Dole], Bechtel met its burden of production by articulating a legitimate nondiscriminatory reason for releasing and subsequently terminating Carroll: a general decline in available work for which Carroll was qualified coupled with a policy of retaining more highly-qualified engineers. At that point, the issue of whether or not Carroll had previously established a prima facie case under Couty became irrelevant. "The presumption [of retaliatory discharge created under the Couty factors], having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture." [St. Mary's Honor Center v.] Hicks, 509 U.S. at 510-11 . . . .. Once the employer has met its burden of production, "the trier of fact proceeds to decide the ultimate question." Id. As such, we conclude that the Secretary's order properly focused on whether Carroll proved by a preponderance of the evidence that Bechtel had retaliated against him for engaging in protected conduct rather than whether Carroll had articulated a prima facie case under Couty.

78 F.3d at 356.

42 U.S.C.A.§ 7622(a) (emphasis added).

   The Secretary and the Board have held that to be protected, safety and health complaints must be related to requirements of the environmental laws or regulations implementing those laws; the employee protection provisions protect employees from retaliation only if they have reported safety and health concerns addressed by those statutes. The seminal case so holding is Aurich v. Consolidated Edison Co. of New York, No. 86-CAA-2, slip op. at 4 (Sec'y Apr. 23, 1987) ("Any complaints regarding effects on public safety or health, or concerning compliance with EPA regulations, under the CAA, are protected under the CAA, but those related only to occupational safety and health are not."). See also Kesterson v. Y-12 Nuclear Weapons Plant, 95-CAA-2, slip op. at 4 (ARB Apr. 8, 1997); DeCresci v. Lukens Steel Co., 87-ERA-13, slip op. at 4-5 (Sec'y Dec. 13, 1993), and cases discussed therein. If complaints closely related to public health and safety, such as complaints about air quality in the workplace, are not protected, a fortiori, complaints or activities protected under other laws not even touching upon health and safety, such as the right to organize under the NLRA, are not protected under the environmental whistleblower laws. In addition, the Secretary and the Board have held that A[a]n employee's complaints must be 'grounded in conditions constituting reasonably perceived violations' of the environmental acts. Johnson v. Old Dominion Security, Case Nos. 86-CAA-3, 86-CAA-4, and 86-CAA 5, Final Dec. and Order, May 29, 1991, slip op. at 15; see also, Aurich v. Consolidated Edison Co., Case No. 86-ERA-2 [sic], Sec. Rem. Order, Apr. 23, 1987, slip op. at 4." Crosby v. Hughes Aircraft Co., 85-TSC-2, slip op. at 26 (Sec'y Aug. 17, 1993) (emphasis added). The record is clear that, with the