ARB CASE NO. 02-027
ALJ CASE NO. 89-SDW-0001
DATE: December 19, 2003
In the Matter of:
PAULINE M. EWALD,
COMPLAINANT,
v.
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF WASTE
MANAGEMENT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Richard E. Condit, Esq., Washington, D.C.
For the Respondent: John R. Butcher, Esq., Senior Assistant Attorney General, Richmond, VA
FINAL DECISION AND ORDER
Pauline Ewald filed a complaint alleging that Virginia's Department of Waste Management fired and blacklisted her because she engaged in activity protected under the whistleblower protection provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610 (West 1995) (CERCLA), the Resource Conservation and Recovery Act, 42 U.S.C.A. § 6971 (West 2003) (RCRA), the Clean Water Act, 33 U.S.C.A. § 1367 (West 2001) (CWA), and the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i) (West 2003) (SDWA), as implemented by the regulations at 29 C.F.R. Part 24 (2002).1
1 These statutes prohibit employers from discharging or otherwise discriminating against any employee "with respect to the employee's compensation, terms, conditions, or privileges of employment" because the employee engaged in protected activities such as initiating, reporting, or testifying in any proceeding regarding environmental safety or health concerns. See 29 C.F.R. § 24.2.
2 "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S Const. amend. XI.
3 Our summary of the facts is generally based on Ewald's April 8, 1991 and January 11, 2001 affidavits, the exhibits attached to Commonwealth's Response to Complainant's Motion for Orders Compelling Discovery and for Sanctions, Complainant's Motion for Enlargement of Time to File a Supplemental Brief, and Complainant's Memorandum in Opposition to the Respondent's Motion for Summary Judgment.
4 "Superfund" is the colloquial name of the CERCLA program which, through program assistance and funding grants, helps the states to identify and clean up hazardous and toxic waste disposal sites.
5 Two remand orders explain a convoluted procedural history that resulted in a five-year hiatus while the case was on appeal to the ARB. See Ewald v. Commonwealth of Virginia, 89-SDW-1 (Sec'y April 20, 1995) (Dec. and Remand Ord.); Ewald v. Commonwealth of Virginia, ARB No. 00-077, ALJ No. 89-SDW-1, (ARB Aug. 21, 2000) (Remand Ord.).
6 We treat Virginia's "Motion to Dismiss" as a "Motion for Summary Decision" pursuant to 29 C.F.R. § 18.40. See Erickson v. United States Envtl. Prot. Agency, ARB No. 99-095, ALJ No. 1999-CAA-2, slip op. at 3 n.3 (ARB July 31, 2001).
7 On January 28, 2002, the Assistant Secretary for OSHA informed the ARB that he intended to file an amicusbrief and asked the ARB to stay briefing until the United States Supreme Court decided South Carolina State Ports Auth. v. Federal Mar. Comm'n, 243 F.3d 165 (4th Cir. 2001), petition for cert. granted, 534 U.S. 971 (2001). The Board issued an "Order Granting Suggestion to Stay Briefing" on January 31, 2002. On May 28, 2002, the Supreme Court decided that sovereign immunity under the Eleventh Amendment barred the FMC from adjudicating a complaint filed by a private party against a non-consenting state. Federal Mar. Comm'n v. South Carolina Ports Auth., 535 U.S. 743 (2002). As a result of that decision the Board requested the parties and the Assistant Secretary to inform the Board how they wished to proceed. The Assistant Secretary replied by an October 31, 2002 written statement that South Carolina Ports required the Board to dismiss Ewald's complaint unless she could prevail on her waiver or amended complaint arguments. The Assistant Secretary informed the Board that he "offers no view" on the merits of Ewald's waiver and amendment arguments. On April 30, 2003, the Board ordered Ewald to show cause, no later than May 20, 2003, why the Board should not dismiss her appeal in light of the Court's South Carolina Ports decision.
8 By its terms the Eleventh Amendment applies only where citizens of another state or foreign citizens bring federal suits against a state. However, the United States Supreme Court has repeatedly held that the sovereign immunity enjoyed by the states extends beyond the literal text of the Eleventh Amendment. See, e.g., Alden v. Maine, 527 U.S. 706 (1999) (sovereign immunity shields states from private suits in state courts pursuant to federal causes of action); Blatchford v. Native Vill. of Noatak, 501 U.S. 775 (1991) (applying state sovereign immunity to Indian tribes); Principality of Monaco v. Mississippi, 292 U.S. 313 (1934) (applying state sovereign immunity to suits by foreign nations); Hans v. Louisiana, 134 U.S. 1 (1890) (applying state sovereign immunity to suits by a state's own citizens under federal-question jurisdiction).
9 Though Ewald argues only with respect to CERCLA, the CWA and the RCRA (now known as the Solid Waste Disposal Act (SWDA)) also prohibit any "person" from engaging in the prohibited activities. See 33 U.S.C.A § 1367(a)(West 2001); 42 U.S.C.A. § 6971(a)(West 2003). "Person" is defined in both acts to include a state. 33 U.S.C.A. § 1362(5); 42 U.S.C.A. § 6903(15). SDWA prohibits an "employer" from discharging or otherwise discriminating against employees who have engaged in protected activities. See 42 U.S.C.A. § 300j-9(i)(1)(West 2003). "Employer" is not defined, but another section of the statute's protection provisions reads, in part: "Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of [section 300j-9(i)(1)] may . . . file . . . a complaint with the Secretary of Labor . . . alleging such discharge or discrimination." 42 U.S.C.A. § 300j-9(i)(2)(A). The definition of "person" includes a "State." 42 U.S.C.A. § 300f(12).
10 The documents are an October 12, 1988 application and budget breakdown for federal assistance seeking $263,158 in estimated federal funding under the Core Program Cooperative Agreement "to carry out CERCLA implementation beyond specific site work." Exhibit 1, Complainant's Supplemental Brief. Exhibit 2 consists of more budget information, sorted into categories and indicating $839,671 in program income.
Exhibit 3 is a list of 18 assurances that the applicant, Virginia's Department of Waste Management, will comply with various federal laws concerning discrimination, personnel, the environment, employment, and other areas. Exhibit 4 is a list of 12 similar assurances. As the ALJ noted, R. D. & O at 12, the grant documents, Exhibits 3 and 4, are similar to the assurances under the SWDA discussed in Rhode Island v. United States Dept. of Labor, 115 F. Supp. 2d 269 (D.R.I. 2000). In that case, as here, the state agreed to abide by federal laws prohibiting various forms of discrimination as a condition to receiving federal program funds. The court in Rhode Island observed that the provision embodying this agreement in various application and program documents "falls far short of the express and unequivocal language required to establish a waiver. On its face, it is simply an agreement to abide by federal laws prohibiting discrimination. It does not even mention, let alone waive, a state's immunity from suit by private parties." Id. at 277.
Exhibit 5 is a November 6, 1987 letter from Virginia Governor Gerald L. Baliles to the EPA regional administrator, advising him that the Department of Waste Management is "the lead agency authorized to enter into cooperative agreements and contracts" under section 104(c)(3) of CERCLA. Exhibit 6 provides details of the grant application under the Superfund Amendments and Reauthorization Act of 1986 (SARS), including the required activities necessary to implement the program. Exhibit 7 is a December 10, 1988 memorandum advising Bailey to sign the copies of the Superfund agreement covering December 15, 1988, to December 14, 1989, as soon as possible so that funds can be released for Virginia's use.
11See 29 C.F.R. § 18.5(a) ("Within thirty (30) days after the service of a complaint, each respondent shall file an answer.") (emphasis supplied); 29 C.F.R. § 18.5(b) ("Failure of the respondent to file an answer within the time provided shall be deemed to constitute a waiver of his right to appear and contest the allegations . . . and to authorize the administrative law judge to find the facts as alleged in the complaint and to enter an initial or final decision containing such findings . . . .").
12 Ewald also asked the ARB to "determine" that the Assistant Secretary of OSHA "could intervene on her behalf" against Virginia to "ensure that wrongdoing does not go unpunished." Complainant's Response to Order to Show Cause at 15-16. Section 24.6(f)(1) reads in part: "At the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or participate as amicus curiae at any time in the proceedings." 29 C.F.R. § 24.6(f)(1). Though the Assistant Secretary did participate as amicus,he stated on October 31, 2002, that he had no position on Ewald's waiver and amended complaint arguments. See n.7. Furthermore, the Assistant Secretary has not filed a motion to intervene. Therefore, we will not determine whether the Assistant Secretary "could" intervene here. Cf. Migliore v. Rhode Island Dept. of Envtl. Mgmt., ARB No. 99-118, ALJ Nos. 98-SDW-3, 99-SDW-1, 99-SDW-2, slip op. at 4 (ARB July 11, 2003) (the ARB declines to issue an advisory opinion on the Assistant Secretary's authority to intervene).
13 The Secretary concluded that the "amendment was proper and is consistent with cases arising under the Fed. R. Civ. P. 15, to the extent that that rule is applicable pursuant to 29 C.F.R. § 18.1(a). See e.g., Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1258 (11th Cir. 1983); Serrano v. Collazo Torres, 650 F. Supp. 722, 725-29 (D.P.R. 1986)." Wilson, slip op. at 3-4.
14 The ALJ disposed of Ewald's request to add the current head of Virginia's Department of Waste Management on different grounds. Ewald sought to add this person so that if she prevailed on her complaint, she could request that the ALJ order the person to expunge her employment records or prohibit their release. The ALJ noted, however, that this person would have to engage in "official" action to accomplish what Ewald sought. Ewald moved to add this person "in his/her individual capacity." But the ALJ found it unlikely that this person, in his or her individual capacity, would have access to Ewald's records or authority to take action regarding them. The ALJ also noted that "mere succession to an office in public service does not expose a blameless official to individual liability exposure for the actions of his of her predecessors." Therefore, the ALJ concluded that this person could not be added as a respondent. R. D. & O. at 16. We find this reasoning to be sound and conclude that the ALJ acted within his discretion. We therefore affirm the ALJ's decision to deny this amendment to the complaint