undue prejudice, claiming that Complainant never exchanged several of his exhibits prior to the hearing and, thus, violated several orders issued by the undersigned regarding discovery issues. (See id. at 10-12). However, I determined that it would be best to deny AHL's motion and continue with the hearing as scheduled, as the record could be kept open for the limited purpose to allow AHL (and MM & P) to address any prejudice that might have occurred through post-hearing submissions. (See id. at 22-24; see also id. at 52-53 (". . . the employer can submit anything that they need to submit in response to the late naming of the exhibits- the late provision of the exhibits.")).

   Next, counsel for Complainant began by calling to the stand Mr. Lincoln Nye, Mr. Bob Schilling, Capt. Mike C. Herrig, and Capt. Timothy A. Brown. (Tr. at 43-44). However, counsel for both AHL and MM & P (collectively referred to as "Respondents") stated that none of these individuals were present at the time, although Capt. Brown and Capt. Herrig were in town and would be available after one o'clock in the afternoon. (Id.). Respondents also objected, stating that none of these parties were served, listed on Complainant's witness list, or subpoenaed. (Id. at 45-47). Further discussion revealed that, in addition to the individually named respondents, Complainant listed twelve other witnesses, all of whom were either current or past employees of Respondents, but not named parties, as individuals he may call. (Id. 48-49). However, no subpoenas were issued to compel the appearances of any of these individuals. (Id. at 48-49). Again, rather than dely the start of the hearing or postpone the hearing all together, I informed Complainant and Respondents that I would hold the record open for sixty days to allow Complainant to take the depositions of the individuals named on his witness list, and that during this period, Respondents would be allowed to submit evidence to combat any prejudice incurred due to either Complainant's late-naming of several exhibits or the post-hearing depositions . (Id. at 52-53).

   On the third day of trial, the purpose of the period in which the record would be held open for was revisited in the context of the jurisdictional and timeliness issues raised in this action, as I informed the parties that "I will allow you to submit whatever you want to complete the record [on the timeliness and jurisdictional issues]." (Id. at 703). Thus, my ruling implied that the record would be held open for the additional reason of offering more evidence on the timeliness and jurisdictional issues.

   In sum, all of the documents relate to OSHA's investigation of Complainant's complaint. In response, Complaint objected to the admission to every single item on the grounds that they are inadmissable hearsay as well as irrelevant to this action, and seeks a host of remedies for this "improper filing." In its response, AHL states that these documents are all relevant to the jurisdictional and timeliness issues raised in this action and further states that they admissible as public records, pursuant to 29 C.F.R. § 18.803(a)(8), and/or business records under 29 C.F.R. §§ 18.803(a)(6), both of which are exceptions to the hearsay rule.

   Complainant's motion to exclude is granted in part and denied in part, as several of the documents lack sufficient foundation and are rejected on those grounds, while others are either irrelevant or are already in the record as other exhibits.

   Two issues need to be addressed preliminarily. First, I note that AHL previously submitted other evidence marked RE 105, 106, 107, and 108 under cover letter dated April 27, 20002, and RE 109 and 110 under cover letter dated April 26, 2002, which will be admitted as complete copies of the excerpts admitted into evidence as CX 6, 9, 10, 11, 27 and 29, respectively. As such, the exhibits listed above marked RE 105 to RE 114 will be remarked as RE 105A through RE 114A. Second, no objection has been raised contesting the authenticity of any of the documents (which are apparently excerpts from the documents provided by OSHA under seal) and, as such, none of the documents will be rejected solely due to lack of authenticity, if the documents are deemed to be probative. See 29 C.F.R. § 24.6(e)(1).

   Finally, as a preface to the rulings made below, I note that formal rules of evidence are inapplicable to proceedings under the environmental statutes and the administrative law judge is vested with great authority to make evidentiary determinations. Id. See also 29 C.F.R. §§ 18.102, 18.104. Although not strictly applicable, I look to the evidentiary rules in 29 C.F.R. Part 18 for guidance. It is within this framework that Complainant's and AHL's motions will be addressed.

   RE 105A and 106A are both rejected as irrelevant, as both provide information on the physical condition of THE MONSEIGNEUR. The validity of the health and safety complaints made has no bearing on a whistleblower action, as it is the filing of such a complaint that triggers protection under the statutes governing this claim. See, e.g., 33 U.S.C. § 1367(a); 42 U.S.C. §§ 6971(a), 7622(a)(1). These two documents appear to address issues concerning the validity of Complainant's complaints rather than the matters before this tribunal. As such, they are rejected as irrelevant.

   RE 107A and 113A are rejected, as the record already contains copies of these documents (See ALJ 16; RU 3).

   RE 114A is rejected. The disembodied authenticity certificate broadly states that OSHA provided certified copies of the entire discrimination case file pertaining to Complainant's complaints. However, the entire case file was not attached to this certificate and, thus, it is not clear what documents Mr. Gerald Foster, OSHA Regional Supervisor and Records Custodian, is attesting to. Thus, RE 114A is rejected.

   Finally, Complainant's motion for sanctions is summarily denied.

   IT IS HEREBY ORDERED that:

1. RE 105, 106, 107, 108, 109, and 110, complete copies of CX 6, 9, 10, 11, 17 and 29, respectively, submitted under cover letters of April 17 and 26, 2002, are ADMITTED;

2. RE 45, 46, 108A, and 110A are ADMITTED as set forth above;

3. RE 40, 43, 44, 105A, 106A, 107A, 109A, 111A, 112A, 113A, and 114A are REJECTED, provided that RE 107A and 113A are already in the record as ALJ 16 and RU 3, respectively; and

4. Complainant's Motion for Sanctions is DENIED.

       PAMELA LAKES WOOD
       Administrative Law Judge

Washington, D.C.