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Issue date: 18Apr2001 Case No.: 1999-CAA-24
In the Matter of:
MICHAEL C. GROSS,
Complainant
against
RADIAN INTERNATIONAL, and
ENVIRONMENTAL DIMENSIONS, INC., and
STONE AND WEBSTER, Respondents
APPEARANCES:
MICHAEL C. GROSS, Pro se,
On behalf of the Complainant
C. WAYNE DAVIS, ESQ.,
On behalf of Employer, Environmental Dimensions, Inc.
KELLY C. KOCUREK, ESQ., On behalf of the Employer, Radian International
BEFORE: RICHARD D. MILLS
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. Jurisdiction
This case arises under the environmental whistleblower protection provisions of the Clean Air Act ("CAA"), 42 U.S.C. §7622, and the Comprehensive Environmental Recovery, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §9610, and the regulations promulgated thereunder which are found at 29 C.F.R. Part 24. The matter is before the undersigned Administrative Law Judge pursuant to the Complainant's request for a hearing.1[Page 2]
1 Complainant's request for a hearing before this Court was filed in writing on August 25, 1999 and is included in the record.
2 Complainant asserts that he had notified OSHA of his Claim as of June 10, 1999. He says that on that date he called the OSHA regional office to report his claim and was later advised by OSHA personnel that June 10, 1999 would serve as his complaint date.
3 Respondent, Stone and Webster, was dismissed from this case based on the Court's finding that they had not materially participated in decisions relating to EDI's employment of Mr. Gross. (TX, p. 200).
4Radian's contract with the Army Corps of Engineers was established based on the Corps' request for proposal, which is Radian's Exhibit 1. (RDX-1). The request for proposal gave the specifications for conducting the work and outlined the general scope of the work. It was subsequently amended by agreement between the Corps and Radian. (TX, p. 487; RDX-2). Radian's services were contracted by the Corps of Engineers delivery order. (TX, p. 487; RDX-3).
5Tom Sherrod testified to the accuracy of this information. (TX, p. 490).
6With respect to the dirt spilling from dump trucks near the site, Sherrod testified that in order to constitute a reportable CERCLA violation, Radian would have to dump approximately 3 dump trucks full of dirt onto uncontaminated ground. (TX, pp. 520-521).
7Sherrod testified that he wrote that incident report after he caught Mr. Gross writing "Tom Sherrod has no penis" on a bench at the work site. (TX, p. 528).
8Sherrod testified that he specifically had caught Gross leaving early and releasing his crew early on May 13, 1999. (TX, p. 531).
9Reddy's incident report was presented to the Court as RDX-14. Tom Sherrod testified that prior to the date of this report, the Corps of Engineers had ordered him to clean the site of any graffiti. (TX, p. 530).
10 A notable exception is the Surface Transportation Assistance Act with which we are not concerned here.
11 The Court notes that Gross did call the Nuclear Regulatory Commission prior to contacting OSHA. He states in his brief opposing dismissal, however, that he never filed a claim with that agency.
12 The Court notes, of course, that Gross appeared before it without the benefit of such representation. At the outset of trial he informed the Court that he had attempted to secure representation and was unsuccessful. (TX, pp. 7-9).
13In fact, Gross testified that OSHA told him he must file within 30 days. (TX, p. 350).
14We do not, of course reach the merits, because we have already determined that this complaint is time-barred.
15Sherrod testified, as we have noted earlier, that Gross would have the authority to shut down the DECON pad if he determined that the process was violating the environmental plan or that the vehicles were not properly decontaminated. (TX, p. 510).
16The Secretary justified his conclusion in Mackowiak by citing Phillips v. Department of Interior Board of Mine Appeals, 500 F.2d 772 (1974) (mine's safety procedures regarding safety complaints triggered coverage of the act when miner notified foreman or safety committeeman of safety violations).