2. The September 1979 Discharge

    The third raw sludge discharge into the river occurred in September 1979 from the South end of storage lagoon No. 1. It was reported to the DEQ office in Manchester, IA, on Wednesday, 12 September 1979, and investigated by DEQ the following day. It was also the subject of the Des Moines Register article which appeared the following Sunday.

    In the summer of 1979 the three sludge storage lagoons were at or near capacity (Comp. Ex. 2, p. 5) and the plant management intended to supplement them by a borrow area used by the sewer trench excavation contractor. Unknown to management, the latter had left standing a small dike which reflected the sludge away from the borrow area into lagoon No. 1. When its southern dike failed, sludge began to discharge into the shallow, low and weed-covered ditches running parallel to the sewer trench. The trench top takes on the appearance of a dirt road and plant management, believing it to be the lowest level of the sewer trench excavation, assumed that no sludge was being discharged wherever the road looked dry. In fact, as we have seen, this assumption was erroneous.

(T 59) testified that the discharge of 12 and 13 September 1979 was not covered by the City's permit from DEQ and hence unlawful (T 61; cf. T 67; see also Rockwell, T 83) and that he had not known about the discharge until the DEQ investigator walked into his office at 8:30 on the morning of Thursday, 13 September 1979 (T 60). He added that the area where the sludge discharge occurred was a tough one to get into and that the sludge was hard to see because of the weeds but that he had not had them cleared at the time (T 69). He also conceded that he was responsible for watching the lagoon but that the area was not specially supervised nor anyone assigned to watch it (ibid.). Nevertheless, not having been initially aware of the sludge discharge, he did not consider that he was negligent or that he should have been going out personally to inspect the lagoon and sewer trench area (T 71).

    e. DEQ's Conclusions

    Based on the facts uncovered in its investigation DEQ concluded that most of the allegations which it investigated were "incorrect, conclusions based on essentially correct observations" (Compl. Ex. 2., p. 10). DEQ found no intentional sewage sludge discharge into the river but recommended that "the sludge lagoons be inspected more carefully and at more frequent intervals" (ibid.). The report noted, however that such discharges were prohibited, even if unintentional, and ordered that all future discharges be "immediately reported to DEQ" (id,, p. 11). It attributed the erroneous charges, given expression in the Des Monies Register article, to lack of communication up and down the line between the plant management and its employees and urged that the flow of information be improved (id., p. 10).

    Nothing in the additional evidence adduced in this proceeding factually contradicts the findings of DEQ. One perhaps significant, though minor point deserves specific mention here. The DEQ investigation found that two plan, operators had known about the September discharge before the first DEQ investigation but only one (complainant) is identified and only complainant was disciplined for failure to report (T 22). Management appearently did not know of anyone else's involvement (T 83). The City's failure to

find after receipt of the DEQ report and punish the other person who had committed an act similar to that for which complainant was disciplined throws an interesting sidelight on the seriousness with which the City and plant management viewed such acts.

    On the other hand, the testimony of the City's water pollution control director confirms the underlying impression, coming through in the DEQ report, that the plant management was not as alert to or concerned about occasional sludge discharges as it should have been.

    2. Complainant's Role in the Discharge Disclosure
    a. Complainant's Motivation

    Complainant became a water pollution control operator for the City in March 1975. Thereafter he was for a period assigned the duties of a control operator II but without receiving the higher pay therefor until he won a grievance. By the time of the September 1979 he had reverted to his orginal position and duties (T8-9, 29-30). On cross-examination he denied unhesitatingly that the return to the lower-paid position was a motive for the actions he took in the late summer of 1979 (T30).

    On the contrary, the record clearly discloses that complainant was honestly and sincerely concerned (even if in exaggerated fashion) about raw sewage sludge discharges from the plant into the river. Even though at times he thought that the discharges were authorized and that the plant management was aware of the discharges (T 26-27), he later felt that they were unlawful or at least that what was going on was not right (T 36), that what the city did was "wrong" even if it had a permit from the state of Iowa (T 37). Part of this seeming confusion resulted from the lack of communication with management to which the DEQ report (supra, sec. le) referred, as foreman and lower ranking supervisors gave complainant their varied versions as to what the City was permitted to do (T 26, 28).

    b. Complainant's Action

    Troubled about the sludge discharges from the storage lagoons into the river which he believed from his observations to be more frequent (T13) than the later

accorded it by the statute. However, the witness' testimony on the record as a whole does not appear to me credible. As between his account of what the complainant told him and the latter's own account of his dealings with, his friend and the reporter which the latter's testimony corroborates, I find no difficulty in accepting complainant's account and rejecting the account of respondent's witness, trying to make it appear that the whole episode was started somehow under the influence of liquor, as an outright fabrication. No reliance is placed on it in this decision.

    c. Complainant's Failure to Report

    One of the questions raised at the hearing by the City was that of complainant's duty to report to management the September sludge discharge once he had found out about it. Complainant testified in essence that notwithstanding his disapproval of the discharges he believed them authorized by DEQ and known to the plant management (T 26, 28) and that he felt in consequence no obligation to tell anyone about them (T27). He claimed that others also failed to report discharges and that he did not know whose duty it was to do so (T24). He denied, however, having failed to report at one time an outage at the lift station. On the other hand, the plant director testified that operators frequently had reported unwanted sludge discharges, that he frequently got failure calls at night (T66) and that he would have expected complainant to notify his supervisor or higher-ups of the sludge discharge when he found out about it (T 67).

    There is no question that the complainant did not advise his supervisor or management as soon as he found out about the 12-13 September discharge when he was furnishing information to the Des Moines Register reporter and because he wanted DEQ to observe and investigate the discharge, although he did not personally call DEQ (cf. T78). In sum he believed that he had initiated the DEQ investigation (T40).

    No specific plant rule regarding the reporting of sewage sludge discharges or similar, more comprehensive topics has been produced. The plant rules produced by respondents (Resp. Ex. 21) contain section 13 which

prohibits without prior management approval "[a]ny action which causes directly or indirectly the discharge of untreated wastewater or sludges into the Cedar River or its tributaries" It is not contended that failure to report an ongoing discharge is its direct or indirect cause.

    d. Complainant's Suspension and Resignation

    Complainant was the subject of a five-day suspension without pay, starting at 11 p.m. on 28 September 1979 (Compl. Ex. 3). The date of the infraction is given as "9-16-79 and Subsequent" but under supervisor's remarks complainant is charged with failure to inform his supervisor of sludge discharges into the river "on or before September 13, 1979" of which he had knowledge prior to that, date. Such failure is alleged to constitute a violation of plant rule 13 (see supra, sec. 2c) and, hence, a failure to fulfill his obligations as an employee under "the contract", a copy of which was not made part of the record.

    After the end of the suspension complainant, with other plant employees, was offered an opportunity of training for and employment at the new plant, soon to be opened (T80) but by that time complainant had decided to resign. Although offered the training opportunity complainant was also told by this immediate supervisor that he had rocked the boat and could expect continued fair but not preferred or favorable treatment (T79). There, is no evidence that higher management caused this statement to be made to complainant. But presumably it reflected management feeling about complainant's conduct in the sludge discharge matter.

    Complainant resigned on 26 October 1979 to take another position (Resp. Ex. 3) and at the time of the hearing was unemployed (T8). He has since moved, as he stated to the presiding administrative Law judge, to Terre Haute, IN.

    On 26 October 1979 complainant mailed his request for "investigation and judgment" regarding his suspension without pay under 33 USC 1567 to the Employment Standards Administration Area Director in Des Moines, IA. The request was received in that office on 29 October 1979 (Compl. Ex.

4). The Administration is not a participant in this proceeding.

    Section 507 of the Act (33 U.S.C. 1367) provides in paragraph (a) that no person shall in any way discriminate against an employee who has "filed instituted or caused to be filed or instituted any proceeding under this chapter" or done certain other acts not involved herein. Under paragraph (b) any employee who believes himself a victim of discrimination has the right to appeal to the Secretary of Labor. If the Secretary after a hearing finds that 33 U.S.C. 1367(a) has been violated he shall issue a decision and order requiring the violating party to take affirmative action to abate the violation. At the request of complainant the Secretary may also under paragraph (c) assess costs against the violating party but no such has been made by complainant or on his behalf by his attorneys.

    There is no question that complainant was singled out for disciplinary action, that such action was discriminatory and that it was unlawful if without justification in complainant's conduct and in fact retaliation against complainant for having embarrassed the City or its water pollution control director.

    The ostensible ground for the City's action against complainant was his failure to report the sludge discharge in September 1979 when he first noticed it. The alleged basis in the plant rules governing the general conduct of the water pollution control plant employees was rule 13, previously quoted. But rule 13 requires no affirmative conduct by an employee. It prohibits conduct, to wit: actions which cause, directly or indirectly, sewage sludge discharges into the river. No such action is laid to complainant. The sludge discharges into the river were caused by the construction of a dike blocking the intended flow of sludge from the storage lagoon into the borrow area and the insufficiency of another dike which failed to prevent sludge flow into the so-called sewer trench and thence into the river. In part, the failure were due to errors of the sewer trench contractor which plant

management had failed to detect. But the discharges were not "caused", either directly or indirectly, either by management's failure to keep the area under observation or by complainant's failure to report what he had seen. While one might assume the employees of a plant normally will report untoward occurences which they observe no rule impressed this upon them as a specific duly nor does it appear that such occurrences were reported to supervisors or higher-ups in anything more than a haphazard fashion. Complainant's failure to have done so here is at least in part explained by his motion that the sludge discharges were permitted by DEQ even if complainant considered them wrong. In this situation the disciplining of complainant by invoking plant rule 13 - on its face inapplicable - cannot be considered ordinary personnel action. The truth explanation, supported also by the view which complainant's supervisor took of the situation, is that complainant had rocked the boat and that the City and plant management used disciplinary action to give him a lesson and to get back at him. Such disciplinary action would violate the Act and be unlawful if complainant's conduct can be found to have caused the institution of a proceeding under the Act. This raises both factual and legal questions which must now be considered. The first is whether complainant's actions ultimately caused (1) DEQ to investigate the September discharges when they were occurring and (2) the City's elected commissioner, responsible for water pollution control, to request DEQ to conduct a complete investigation.

    Complainant's contribution to the institution of these investigations was twofold: (1) to bring the sludge discharge information to the attention of a friend who was an "environmental activist" and could be expected to act on the information as, indeed, he did; (2) to state the information which he had together with this views and charges against the City to a reporter of the Des Moines Register (the state's premier newspaper) whom he could expect to publish them (as the Register did over the reporter's by-line) and to bring about a full public airing of the matter. While complainant did not himself ask either the cognizant federal authorities or DEQ for an investigation, the casual nexus between what he in fact did and the official action which resulted is so close as to the conclusion that complainant "caused

to be ... initiated [a] proceeding under this chapter [i.e. the Act]", provided a DEQ investigation is such a proceeding. That such information-giving activity is intended to be protected by the Act, see Senate Report No. 92-114, comment on Section 507 (now 33 USC 1367).

    That DEQ's action is not such proceeding and, hence, complainant's conduct as a matter of law not protected by 33 U.S.C. 1367 is the City's major defense. In order to determine whether the DEQ investigations of 13 and 24-25 September 1979 were "any proceeding resulting from the administration or enforcement of the provisions of" the Act (33 U.S.C. 1367(a)) the federal statutory scheme and the applicable statutory law of Iowa must be examined.

    The Water Pollution Control Act was first enacted in 1972 (86 Stat. 816; PL 92-500) and substantially amended in 1977 (91 Stat. 1567; PL 95-217). Its text is found in Title 33 of the United States Code, sections 1251 et seq. As appears clearly from its initial section, it looks to cooperation between the federal government and the states to administer and enforce the Act. It is the declared policy of Congress to recognize, preserve and protect the primary rights of the states to prevent, reduce and eliminate water pollution (33 USC 1251(b)). In particular, the states are invited to implement the permit and licensing programs under subchapter IV of the Act (33 USC 1342, 1344). Subparagraph (e) of section 1251 provides for public participation in effluent limitation programs established by a state and subparagraph (g) looks toward state and federal cooperation in developing comprehensive water pollution control programs. States shall not, however, adopt less stringent effluent limitation standards that set under the Act (33 U.S.C. 1370).

    The Act contains in subchapter III provisions for the setting of standards, inspections and enforcement which again emphasize the role of the states. Not only were the states required to submit water quality reports in 1975 and 1976 looking toward achievement of the standards set by the Act (33 USC 1315) but they are expressly authorized to develop and enforce, Subject to approval of the Act's administrator, procedures for inspecting and monitoring of water pollution sources (33 USC 1318(c)). Procedures

by which the Act's administrator is authorized to enforce the statute are found in 33 USC 1319.

    In 1973 the State of Iowa created DEQ (IA Code, ch. 455b) and within it created a water quality commission (id., 455B.30) which was made the state's agency to prevent, abate or control water pollution (id., 455B. 31) and given broad investigatory authority (id. 455 B.3,.33). The commission was to develop standards of effluent control at least as stringent as the federal standard.

    In 1976, the Iowa legislature adopted an additional declaration of policy (id., 455 B. 36) stating in relevant part as follows:

    "The general assembly finds and declares that because the Federal Water Pollution Control Act amendments of 1972, Public Law; 92-500, provide for a permit system to regulate the discharge of pollutants into the waters of the United States and provide that permits may be issued by states which are authorized to implement the provisions of that Act, it is in the interest of the people of Iowa to enact the provisions of the Act (66 G.A., ch. 1204] in order to authorize the state to implement the provisions of the Federal Water Pollution Control Act amendments of 1972 and Acts amendatory or supplementary thereto, and federal regulations and guidelines issued pursuant to that Act."

    It is clear from the foregoing that DEQ does not enforce as regards the control of water pollution purely local regulations but standards, permits and regulations intended to carry out the provisions of the federal statute as well as supplementing or implementing state law. Here, DEQ undertook two investigations to determine whether the City had violated effluent limitations standards and the terms of its permits and issued a report recommending improvements in the management of the sludge discharge problem and of the City is overall plant management. Although DEQ's investigations were not pumitive they were undertaken in the administration of the federal statute and in aid of the enforcement of its provisions. They fall,

therefore, plainly within the ambit of 33 USC 1367(a) which protects employees who cause, as complainant did, the institution of "any proceeding" resulting from administration or enforcement of the Act. "Any" is a broad term and in the absence of restrictive language applies in the context here to administrative as well as court proceedings, well as appropriate state action, investigation and advice as well as the exaction of penalties.

    This broad view of the term "any proceeding" has been upheld by the United States Supreme Court, albeit under a different statute and as to a different statutory right. New York Gas Light Club, Inc. v. Carey, U.S. Sup. Ct. No. 79-192, decided 9 June 1980 (slip op.), 48 U.S.L.W. 4645 1980). That case involved section 706(K) of Title VII of the Civil Rights Act of 1964 (42 USC 2000e-5 (k)) which provides in relevant part:

"In any action or proceeding under this title the court ... may allow the prevailing party ... a reasonable attorney's fee ..."

    The question there was whether the attorney for the prevailing plaintiff, a victim of racial discrimination in hiring, was entitled to an attorney's fee for his work in a New York State administrative proceedings seeking relief from the same discrimination condemned by the Federal Civil Rights Act. The Court answered the question posed to it in the affirmative, finding that the word "proceeding", in order to have its full meaning, included both court and administrative proceedings.

    Moreover, the Court held that the word "proceeding" was used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial and found the conclusion that section 706(k) authorizes fees for work done at the state and local levels inescapable.

    The same approach must prevail here. It is the obvious intent of 33 USC 1367(a) to protect employees who cause the institution of proceedings because of alleged inadequacies of their employer's water pollution control activities. To limit the protection by a narrow construction

of "any proceeding" to those brought by the administrator of the Act under 33 USC 1319 or by private citizens under 33 USC 1365 would frustrate the purposes of the Act and exclude from its scope those employees who cause to be instituted the very kind of action most likely to be taken by state agencies, such as DEQ: monitoring, investigating, suggesting or ordering improvements in water pollution control management and reserving to the future more severe enforcement action, if warranted.

    In the light of the statutory scheme involved here and the Supreme Court's resolution of the interpretation problem in New York Gaslight Club, Inc. v. Carey, supra, it is concluded that complainant caused to be instituted a proceeding resulting from administration and enforcement of the Act and is protected against discriminatory adverse action on account of what he did.

    Respondents argue also that complainant's request for hearing was untimely. They base this contention on the fact that the request, although mailed within the statutory 30-day period (33 USC 1367(b)), was not received by the cognizant Des Moines office of the Department's Wage and Hour Division until three days after the end of the period. The matter is covered by the Department's regulations (29 CFR Part 24), published 8 January 1980. Section 24.3 of the regulations clearly states that for the purpose of "determining timeliness of filing, a complainant filed by mail shall be deemed filed as of the date of mailing." Even if this regulation were deemed not to apply to the mailing of a request for secretarial review, mailed prior to this date, it restates rather than changes the applicable law. It embodies the common sense rule that the burden of delay from the mails in matters of administrative timeliness shall not fall on the party using the mails, unless the statute, regulations or specific principles of law clearly provide otherwise. Hence, I cannot hold complainant's request of 26 October 1979 under 33 USC 1367(b) to have been untimely.

    The regulations also contain certain other time provisions adopted as a matter of internal departmental management. No issue is raised about them by any party and they are deemed waived.

    The parties agreed at the hearing to remove the City's Water Pollution Control Director as a resident. The proceeding is accordingly dismissed against him.

    The complainant was subject to discriminatory disciplinary action by the respondent. City of Cedar Rapids in violation of 33 USC 1367. Accordingly, his complaint is upheld.

    The City of Cedar Rapids, IA, is ordered to repay complainant for five days' lost wages the sum of $225,20 with interest at the current rate established by the Secretary of the Treasury for use in computing interest in government contracts, as adopted by the Office of the Assistant Secretary of Labor for Administration and Management, and to expunge physically from complainant's personnel records any reference to the disciplinary action taken against him, as represented by the Employee Discipline Report (Compl. Ex. 3) or any other reference thereto in any record maintained by respondent concerning complainant.

       RUDOLF SOBERNHEIM
       Administrative Law Judge

Dated: 11 July 1980
Washington, D.C.

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