In the Matter of:

DAVID HERMANSON,                             CASE NO. 94-CER-2

          COMPLAINANT,                       DATE:  June 28, 1996

     v. 

MORRISON KNUDSEN CORPORATION,

          RESPONDENT.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1] 


FINAL DECISION AND ORDER
     Before us for review is the Recommended Decision and Order (R.
D. and O.) issued on March 24, 1995 by the Administrative Law Judge
(ALJ) in this case arising under the employee protection provisions
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9610 and the regulations
promulgated thereunder, 29 C.F.R. Parts 18 and 24.  Complainant,
David Hermanson (Hermanson) alleges that Respondent, Morrison
Knudsen Corporation (MK), through its subsidiary Vertac Site
Contractors (VSC), wrongfully discharged him on March 1, 1994 for
raising safety concerns regarding VSC's operation of its
incinerator facility.  After a thorough review of the record we
accept the recommended decision of the ALJ, as modified, and
dismiss this complaint.


                                BACKGROUND

     MK was authorized in 1990 by the Arkansas Department of
Pollution Control and Ecology to operate a dioxin-disposition
facility.  It entered into a joint venture known as VSC, with MK
being the lead company because it provided the expertise, personnel
and funding for the operation of the facility.  R. D. and O. at 3. 
The United States Environmental Protection Agency (EPA) took
control of the facility in 1993, and contracted the operation of 
[PAGE 2]
the incinerator and the monitoring of ambient air around the site
to URS Consultants (URS).  URS subsequently subcontracted the
operation of the incinerator to VSC.  T. 215, 785-787.

     VSC also developed a system under which the accumulation of
points by an employee could lead to that employee's suspension or
termination.  Assessment of 100 points within 90 days constituted
grounds for termination.  T. 261, Defendant's Exhibit 18 ("Rules of
Conduct on the Job").

     Hermanson commenced his employment at VSC in the early 1990's
and worked as a laborer at various job locations at VSC including
the drum handling building, decontamination unit, and baghouse
assembly area.  R. D. and O at 3.  Hermanson was involved in
various safety incidents throughout his tenure at MK/VSC and
received a number of warnings and reprimands.  R. D. and O. at 8-9,
Defendant's Exhibits 1-11, 13-15.  He occasionally raised questions
as to whether his equipment was sufficient to protect him from the
level of the waste he routinely handled.  T. 872-873.  He expressed
safety concerns about the Vertac facility to co-workers while
employed at VSC, and expressed concern that a torn liner was
installed to prevent waste from penetrating the soil in the event
of a major spill, when in fact the liner was in place to prevent
the growth of vegetation.  T. 196, 197, 449, 500, 569-70, 644, 675,
689.

     Hermanson testified that on June 29, 1993, he and a co-worker
agreed to spray each other with a Hot Water Spray Washer or "Hotsy"
in order to cool off on during a hot afternoon.  T. 151.  The Hotsy
is a high-pressure water spray apparatus used to clean and
decontaminate tools and equipment.  Quatro Smith (Smith), a
decontamination foreman, observed the co-worker spraying Hermanson. 
Mike Henry, the business manager, wanted to fire both Hermanson and
the co-worker.  T. 459.  Smith did not want to lose both workers at
that time and suggested looking at their overall safety record.  T.
460.  Hermanson and the co-worker were each assessed 50 points.  In
addition, Smith warned them as follows:

     . . . Q.  Did you tell Mr. Hermanson that he would be
     fired if he misused that equipment again ?

     A.   I don't know if I said it like that, but I told him
     if he ever had another offense dealing with the Hotsy,
     that he most likely was going to become -- I told him,
     "You know, you already . . . you know, you should have
     been fired now," and I told him that you've just got to
     be careful.

[PAGE 3]

T. 461.

     On February 18, 1994, Hermanson and other employees were
involved in emptying an aqueous waste tank.  During this task, a
drum of waste material fell off of a forklift onto the ground, its
top came off, and a portion of its contents spilled into a gravel
area.  James Winchester, a URS shift engineer, investigated the
incident by talking to the employees involved, including Hermanson. 
Hermanson alleges that he spoke with Winchester on February 22,
1994:

     . . . It was getting close toward the end of the day and Mr.
     Winchester came up to me and he said, "Dave, what are you
     talking about?"  I said, "What do you mean?  What are you
     talking about?"  He said, "That spill."  I Said, "You mean the
     one Friday?"  And he says, "Was it a bucket, a gallon, or how
     much was it?  How big of a spill was it?"  I said, "Mr.
     Winchester, I can't tell you.  There's a gag order and I can't
     speak to you.  I'll have to refer you to my supervisors and
     management because my job is on the line."  And he understood.

T. 75.  URS and VSC management instructed VSC laborers not to talk
to URS personnel about incidents.  T. 801.  Winchester stated that
Hermanson knew about the February 18th incident, but did not
provide any details.  T. 242-243.

     On March 1, 1994, eleven days after the February 18th
incident, Hermanson was on the TDU pad cleaning a round metal pipe
when he sprayed his left boot with the Hotsy:

     . . . And I was starting on another pallet and when I
     reached for the wand and I grabbed it, I picked up the
     wand and it shot across me with force, and it cut through
     my boot covers on my right foot and I seen that it could
     have gone further so I was trying to drop it with my
     hand, and when I let go of the throttle, you know, at the
     time I let go of the throttle of the wand itself, it was
     above my left foot.  And that's where it had penetrated
     into my left boot and it had gone through the boot
     covers, through the boot, through my sock into my foot. 
     And Randy Davidson and Wayne Davidson were there not very
     long after.

     Q.   All right.  Now, before we talk about the Davidsons, I'd
     like to ask you why you dropped -- why you felt you needed to
     drop the wand ?


[PAGE 4]
     A.   I needed to drop the wand so no one else would get hurt
     because of the force of it. 

T. 82.  Hermanson was helped by co-workers to a safety trailer for
first-aid treatment.  There were no witnesses to the incident.

     Smith investigated the incident and concluded that Hermanson
had used his foot to hold the pipe in place while cleaning it.  An
earlier incident in which an employee sprayed his foot with the
Hotsy prompted MK to inform employees that they were ". . .
forbidden to use their feet to hold down tools and devices, or
pipe, or anything else."  T. 836.  Thereafter MK utilized heavy
clamps and baskets to hold lightweight material during
decontamination.  Hermanson testified that baskets were used in
other locations, but not on the TDU pad ("They said it was
unnecessary, that they didn't  even take that into consideration
for smaller pieces of metal.")  T. 84.  Hermanson admits that
sometimes he would hold down smaller pieces of metal with his foot
while spraying them with the Hotsy.  T. 85. 

      Joe Wofford (Wofford), Analytical Compliance Health and
Safety Manager for VSC, spoke to Smith and concluded that Hermanson
was negligent in his operation of the Hotsy:

     A.   Well, first of all, I talked to the operating foreman,
     Quatro Smith, and he informed me that, first of all, there
     were no witnesses.  And this, I believe, is on the
     supervisor's investigation report to the first-aid injury. 
     Other than that, sir, I don't believe we did anything else
     other than to make the decision that -- basing it on what Mr.
     Hermanson said that when he started the Hotsy power washer
     that it kicked back in his hand.  In my opinion he was not
     operating it properly and correctly and negligence on his
     part.

     Q.   Was there something specific that you felt he should have
     done that he did not do?

     A.   I don't believe he followed our standard operating
     procedure for the Hotsy power washer.  I sure don't.

T. 264.

     Hermanson was assessed 100 points under VSC's disciplinary
system for an intentional violation of a safety rule.[2]   After
being told that he was terminated because of this final safety
violation, Hermanson was transported to a physician for treatment
of the foot 
[PAGE 5]
injury.  T. 270.


                                DISCUSSION

     At issue in this case is whether Hermanson engaged in
protected activity prior to his being fired and whether that
protected activity was a cause of his termination.  The ALJ's
finding that Hermanson failed to show that his termination was not
motivated, even in part, by protected activity is wholly supported
by the record.  However, we are reluctant to accept the ALJ's
decision in its entirety.


                Internal Complaints and Safety Concerns

     Although the ALJ recognizes that internal complaints are
protected under the whistleblower provisions of the pertinent
environmental statutes, he makes several statements[3]  suggesting
reluctantance to accept Hermanson's alleged complaints because they
were internal and informal in nature.  An informal and internal
safety complaint may constitute protected activity.  See, e.g.,
Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-0044,
Dec. and Order of Rem., Oct. 26, 1992, slip op. at 10 (employee's
verbal questioning of foreman about safety procedures constituted
protected activity), appeal dismissed,  No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp.,
Case No. 86-ERA-39, Final Dec. and Order,  Oct. 30, 1991, slip op.
at 1, 3 (employee's complaints to team leader protected).  Internal
safety complaints are covered under the environmental whistleblower
statutes in the Eighth Circuit, the Fifth Circuit and every other
circuit.  See Amendments to the ERA in the Comprehensive National
Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat.
2776.[4] 

     Additionally, the ALJ draws too broad a conclusion by stating
that "the whistleblower provisions of the various environmental
statutes are intended to apply to the expression of environmental
concerns rather than general safety concerns."   R. D. and O. at
17.  Under the appropriate conditions a general safety concern
stated by an employee can have an environmental impact such that it
would be covered.  See, e.g., Aurich v. Consolidated Edison
Company of New York, Inc., Case No. 86-CAA-2, Rem. Order, 
April 23, 1987, slip op. at 3-4; Decresci v. Lukens Steel
Company, Case No. 87-ERA-13, Final Dec. and Order, December 16,
1993, slip op. at 4.

                  Protected Activity and Causation


[PAGE 6]
     The ALJ held that Hermanson was not a party to the
investigation of the February 18th incident and therefore could not
have engaged in protected activity.  We agree that Hermanson did
not provide substantial information concerning the incident, but
his statement to Winchester confirming that a spill had occurred
was a clear indication that further investigation of the incident
was necessary, and thus was protected.

     The short time lapse (11 days) between Hermanson's
conversation with Winchester regarding the February 18th incident
and his discharge is sufficient to raise the inference that his
discharge was in retaliation for protected activity.  See Couty
v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).  However, Hermanson
has failed to produce sufficient evidence to prove by a
preponderance of evidence that MK's proffered reasons for
discharging him are not the true reasons, but a pretext for
retaliation.

     We agree with the ALJ's alternative conclusion that:

     Assuming arguendo that Mr. Hermanson was involved
     in protected activity while employed at VSC, the evidence
     convinces me that Mr. Hermanson's discharge would have
     occurred on March 1, 1994, even if the complainant had
     not been involved in such activity.  David Hermanson was
     terminated solely for a legitimate, non-discriminatory
     business reason.  

R. D. and O. at 24.  Hermanson was not the first person fired by
VSC for improper use of the Hotsy.  Another employee had been fired
for using the Hotsy to wash off his gloves, which resulted in a
hand incision.  The overwhelming evidence presented by MK
demonstrates Hermanson's failure to adhere to conduct and safety
rules and thus supports the company's decision to fire him for
nondiscriminatory reasons.  Accordingly, it is hereby ORDERED that
the complaint be DISMISSED.

     SO ORDERED.


                              _______________________________
                              DAVID A. O'BRIEN
                              Chair



                              _______________________________
                              KARL J. SANDSTROM
                              Member


                              _______________________________
                              JOYCE D. MILLER
                              Alternate Member


[ENDNOTES]
           
[1]  On April 17, 1996, a Secretary's Order was signed delegating
jurisdiction to issue final agency decisions under this statute
to the newly created Administrative Review Board.  61 Fed. Reg.
19978 (May 3, 1996) (copy attached).

  Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the
Administrative Review Board now issues final agency decisions.  A
copy of the final procedural revisions to the regulations (61
Fed. Reg. 19982), implementing this reorganization is also
attached.

[2]   The Spray Washer Operational Instructions, which Hermanson
was required to review after the first Hotsy incident, included
the following precautions:

     B. Do not stand in front of nozzle or point nozzle at parts
     of body, other people, animals, or electrical equipment . .
     .

     G. Do not turn on machine without firmly holding gun jet. 
     Failure to do so may allow gun jet to whip along floor,
     possibly causing personal injury.

Defendant's Exhibit 19, page 8.

[3]   R. D. and O. at 14 ("However, none of these incidents
involved giving information directly to government personnel or
agencies . . . therefore, there is no evidence that complainant's
expression of safety concerns while employed at Vertac meets the
literal protected activity requirements of the pertinent
environmental statutes and regulations." ); R. D. and O at 15-16
("Since this case arises within the jurisdiction of the Eighth
Circuit Court of Appeals, I find that I must follow the
Secretary's position that Mr. Hermanson's internal safety
complaints to VSC can constitute activity protected under the
applicable federal statutes and regulations."); R. D. and O at 19
("Again, I do not believe the employee protection provisions of
the environmental statute were intended to cover such casual
comments.  It is unreasonable to conclude that such conversation
is an indication on the part of the employee to initiate
proceedings or investigations such as those mentioned in the
pertinent employee protection provisions.").

[4]   The only current exception to this rule is for cases filed
in the Fifth Circuit under the Energy Reorganization Act of 1974
(ERA), as amended, 42 U.S.C. § 5851 (1988), prior to October
24, 1992.