been told by Mr. Surfass that the site was owned by Mr. Novosel. Nevertheless, Mr. Meyer activated funds for the site, indicating that the owner was unknown. Complainant testified that it had been a practice of the Project to make reasonable efforts to contact a responsible party before funds would be activated. (T-75) Mr. Meyer testified that it was a policy of the Project not to notify a potentially responsible party unless the Project had written documentation of ownership. (T-384). Mr. Zenone, of the technical assistance team testified that letters of notification would be sent out only if there was "positive identification" (T-407).

   Complainant also testified that when she was first shown the site on November 15 she thought that the amount of oil that was being actively discharged was not sufficient to justify activation of funds. Mr. Meyer testified that although the discharge of oil was not substantial, there was potential for a massive release of oil because the wells were in a state of extreme disrepair. He also stated that he had authority to activate funds if there was either an actual discharge of oil or an imminent threat of such a discharge. (T-283).

   Another problem with the Novosel site involved an accident which occurred while BES was working on the site. While workers were removing oil valves to relieve pressure, one of the valves blew off. This resulted in oil spilling onto the ground resulting in a worse spill than had existed. Mr. Meyer testified that he did not view this accidental release of oil as a problem. He testified that containment pits had been dug in case of such an accidental spill. (T-284). A Coast Guard report however indicated that the pits had not been dug until after the accident occurred. (C-6). Mr. Meyer conceded on cross examination that he did not know if the containment pits had been dug before or after the accidental spill. (T-345-6).

   In summary, Complainant had three concerns involving the Novosel site: that the spill was not serious enough to justify activation, that the owner of the site should have been notified before activation and the accidental release of oil. These matters concerned her because she believed they would jeoparize cost recovery.

   Complainant expressed her concerns to Commander Theron Patrick and attorney Bob Ging. Commander Patrick is with the Coast Guard. His job is to administer the Section 311 fund which finances the

Project. Bob Ging was representing Carl Novosel during the clean up. Mr. Ging is representing Complainant in the instant case. Mr. Ging contacted Complainant following the accident at the Novosel site. Complainant expressed her concerns over the handling of the site. She also asked that her identity remain confidental because she feared she would lose her job if her superiors knew that she had revealed information concerning the Project. (T-76-7).

   On December 10, 1985 Mr. Ging wrote a letter to the office of Inspector General, EPA, relating the way the Project handled the clean up of the Novosel site. (C-1) Mr. Ging identified himself as acting on behalf of Novosel Lumber Company. On January 3, 1986 Mr. Ging sent a follow-up letter to the Assistant Inspector General. In this letter he referred to conversations with a confidential source within a government agency. (C-3). Complainant was later confronted by Mr. Meyer about the letters which Mr. Ging had sent. complainant testified that Mr. Meyer told her that he knew she was a friend of Mr. Ging and that "Bob Ging should get off his back." (T-88).

   Kiasutha Site

   This site was also activated for clean-up by the Project. Complainant was critical of this operation because she observed the site and saw no evidence of any oil spill. Without such evidence she could not document that there was actually a spill for cost recovery purposes. She was also concerned with the way the Project was tracking costs at this site. There were other sites in the vicinity of the Kiasutha site and cost allocation was being poorly documented. Complainant reported these concerns to Coast Guard personal and to Vince Zenone, a member of the technical assistance team assigned to work with the project. (T-93). Mr. Meyer testified that he was aware of concerns raised by Complainant. (T-291).

   Bug Site

   This site, referred to as the "bug" site, was on property owned by John Bryner. There were other spill sites on Mr. Bryner's property which were not being cleaned-up. Complainant asked Mr. Meyer and Mr. Zenone about this and was told that the Project had an experimental site on Mr. Bryner's land and they didn't want to cause friction between Mr. Bryner and the Project. (T-95).

   Complainant also had a problem documenting when the spill was

located. She testified that in a taped statement, Mr. Meyer stated that he was with Mr. Peterson when he discovered the site. Complainant asked Mr. Peterson about the site but he denied ever having seen it. (T-100). Mr. Meyer told Complainant that the date of discovery was the date that he filed a violation report with the EPA office in Philadelphia. Complainant testified that she contacted the Philadelphia office but that no such report was filed by Mr. Meyer. (T-102). Another problem Complainant had was that although she had obtained documentation that the property was owned by Mr. Bryner, the site was listed as having an unknown owner. Complainant reported these matters to Vince Zenone and Pat Casano, who was an attorney with the Justice Department. (T-102).

   DYM Sites

   These sites were owned by the DYM Oil Company. Complainant's concern with these sites were that she could not determine the date of violation, she could not determine the amount of the spill and there was inadequate photographic documentation that there was a spill. The photographic documentation was not reliable because it was taken by an unknown person and was not labled. Further the photos did not adequately document what the site looked like before it was cleaned up. The amount of oil that was spilled was estimated to be 8% of the total amount of soil that was removed from the site. The amount of soil removed was determined by how many truck loads were removed. Complainant's concern was that the trucks did not carry full loads. Complainant was critical of the DYM operations because she believed that these methods jeopardized cost recovery for the work at these sites. Complainant reported these concerns to Mr. Zenone and Commander Patrick. (T-110).

   Chappel Bay Site

   Section 311 funds were accessed for this site before Complainant or others in the Project located the spill. The site had originally been located by the Coast Guard and a report of the site was sent to the Project. When Complainant did find the site she found no evidence of an oil spill. Complainant later learned that the funds which were accessed for this site were being used for restoration work at another site. Complainant believed that these matters jeopordized cost recovery for this site. Complainant reported these concerns to Commander Patrick.

   Mr. Meyer testified that he was not concerned that Complainant

could not locate the site because the Coast Guard report was sufficient proof to access funds. Mr. Meyer stated that the Coast Guard identified the spill by the presence of a sheen of oil on the surface of the water. However, a Coast Guard report stated that there was no oil visible on the water and that no oil was reaching water. (C-5) Mr. Meyer explained that depending upon the level of the water, oil could appear on the water one day but not another day. (T-380). The diversion of funds to another site did not concern Mr. Meyer because this was approved by the fund administrator and that there was a surplus of funds for the Chappel Bay site. Commander Patrick testified that such switching of funds from one site to another is a routine procedure. (T-461)

    During the weekend of April 26 and 27, 1986 Complainant was working in the Project's office on a report requested by Commander Patrick. While working, she entered Mr. Meyer's office to get copies of a file she needed to complete the report. She entered the office by using a key which was kept on a board in the outer office. On the following Tuesday, April 29, 1986, Complainant was informed by Mr. Meyer that her services were no longer required. Complainant testified that, conerning her termination, Mr. Meyer stated, "you should have known its been coming and your talking with the public." (T-122). Commander Patrick informed her that the reason she was fired was her unauthorized entry into Mr. Meyer's office.

   Complainant contends that she was discharged because of the reports she made concerning the administration of the clean-up funds by the Project. Respondents maintain that she was discharged for reasons unrelated to her complaints concerning the administration of the project and that these complaints do not constitute "whistleblowing" activities. Mr. Meyer testified that the reason he discharged Complainant was her unauthorized entry into his office, her disruptive behavior which caused friction with other workers and her unauthorized divulgence of information. (T-298). Mr. Meyer further testified that Complainant's allegations concerning the handling of particular spill sites were in no part the basis for his decision to discharge her.

    Respondents Richard Baranowski and B.E.S.
    Environmental Specialists, Inc.

   Respondent BES denies any action or course of conduct causing Complainant to be discriminated against, and, in any event argues

that the employee protection provision of the Water Pollution Control Act is directed exclusively at the employer-employee relationship and therefore they cannot be held liable under the Act. From my view of the evidence in this record, it fails to show any acts on the part of Richard Baranowski and/or B.E.S. Environmental Specialists, Inc. which caused the Complainant to be fired or discriminated against. Complainant has no recourse against these respondents. Thus, I need not decide the legal issue raised.

   I. Whether Federal agencies are subject to the employee protection provision of the Federal Water Pollution Control Act.

   II. Whether Complainant was an "employee" for purposes of protection under the Act.

   III. Whether Complainant engaged in protected activity under the Act.

   IV. Whether Complainant was discharged because she engaged in protected activities.

   Title 33 USC § 1367(a) provides:

No person shall fire, or in any other way discriminate against, or caused to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

   Respondent EPA argues that the term "person" does not include the federal Government or its agencies. EPA filed a pre-hearing motion to Dismiss based upon this argument. In support, EPA cites

the Act's definition of "person" which provides: "the term 'person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body. "33 USC § 1362(5).

   I find that respondent EPA is Covered by the Act. The legislative history of the Act emphasizes the public safety and health concerns, warranting broad applicability of the law.

   The Senate report provides:

The term State, for purposes of the Act, includes... those agencies or instrumentalities of the United States with jurisdiction over river basins which are created by the United States with jurisdiction over river basins if the agency was created by or pursuant to an Act of Congress and has been designated either by the Governors or by the statutes of the participating States as having jurisdiction to implement the Act in the river basin.

The term person, for purpose of the Act, means all entities which are capable of suing or being sued.

   I find that the Civil Service Reform Act does not preempt application of the Water Pollution Control Act. Nothing in the civil Service Reform Act states that its provisions provide a grieved employee with an exclusive remedy. Further, the two Acts were designed to accomplish very different goals. The legislative history of the Civil Service Reform Act states; "Protecting employees who disclose government illegality, waste and corruption is a major step towards a more effective civil service." Senate Rep. No. 95 969, 95th Cong., 2nd Sess., 1978 US Code Cong & AD. News 2730. The employee protection provision of the Water Pollution Control Act is designed to protect employees who report violations of the pollution laws designed to protect the environment. Moreover, since complainant is not technically an "employee" under civil service rules, it is questionable whether she would have any protection under the Civil Service Reform Act.

   The second argument respondent EPA raises is that Complainant was an independent contractor and not an "employee" as required by the Act. To support such a finding, EPA cites the following factors:

   1. Complainant was paid only for those hours she billed the funds.

   2. Complainant filled out the basic order argeement which she worked under, including setting her own rate of pay.

   3. Complainant purchased some of her own equipment and furniture and then billed the government for cost plus ten percent.

   4. While being paid pursuant to the basic order agreement, no taxes or Social Security was withheld. In opposition to respondent's argument, Complainant makes the following points:

   1. Complainant was strictly supervised with respect to the number of hours she could work. Any overtime required approval by a superior,

   2. Complainant had no prior training or experience in the type of activities she performed for the Project,

   3. The conversion of her status from an employee of BES for 3 months to a BOA contractor performing the same duties was at the

behest of her superiors in order to avoid the appearance of a conflict of interest.

   4. Paymant was calculated on an hourly basis, not by the job.

   This issue was addressed in Faulkner v. Olin Corporation, 85-SWD-3 (August 16, 1985). This decision was adopted by the Secretary of Labor on November 18, 1985. This case was brought under the employee protection provision of the Solid Waste Disposal Act. 42 USC §6971. The language in this provision is almost identical to that in the Water Pollution Control Act. Based upon prior decisions under similar Acts, including the Water Pollution Control Act, and legislative history, the Administrative Law Judge determined that this issue should be resolved by applying the common law agency or right-to-control test. He concluded that such an approach would be consistent with Congressional intent to give "whistleblower" statutes a broad interpretation. The most important factor to consider is the degree of supervision which is exercised over the way assigned tasks are to be carried out.

   In Faulkner, the complainant owned and was the sole employee of a company which entered into a consulting agreement with respondent. This agreement stated that complainant was an independent contractor with the authority to direct the details of performance and that respondent was interested only in the final results. Despite these provisions in the contract, the Administrative Law Judge found that complainant was an employee within the protections of the Act. Factors, upon which this conclusion was based, include the following: payment was based on an hourly rate, overtime work required approval, respondent furnished most supplies and secretarial services, and complainant was closely supervised.

   Many of the factors cited in Faulkner for finding an employer- employee relationship are present in the instant case. Complainant was paid on an hourly basis, her hours were strictly supervised and Respondent provided Complainant or reimbursed her for her equipment and furniture. Additionally, complainant did not hold herself out as an independent contractor, did not own any equipment or engage in such business activities, and continuously performed in the same manner throughout the period from October 1985 to April 1986. Accordingly, I find that for purposes of the Act, Complainant was an "employee."

   The next issue is whether Complainant's activities, for which she alleges she was discharged, constitute protected activity under the Act. The Act protects an employee who has been discharged or discriminated against because he or she has "filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter." Respondent argues that Complainant's activity has not resulted in any type of "proceeding" and therefore is not protected activity under the Act. Respondent contends that Complainant's internal reports are not protected activity.

   The Act itself does not define "proceeding"; however, there is an extensive body of case law precedent interpreting this part of the Act. Although there is not complete agreement, a majority of the decisions have held that an internal report is protected activity under the Act. In Brown and Root, Inc v. Donovan, 747 F.2d 1029 (5th Cir., 1984), cited by EPA, the Fifth Circuit Court of Appeals held that internal reports are not protected activity under the employee protection provision of the Energy Reorganization Act (ERA). The Ninth Circuit, in Mackowiak v. University Nuclear Systems, Inc., 735 F,2d 1159 (9th Cir.1894), Held that the ERA provision does cover internal reports. The Tenth Circuit held likewise in Kansas Gas & Electric Company v. Brock, 780 F.2d 1505 (10th Cir. 1985). The position of the Secretary of Labor has been that internal reports are protected activity under the ERA. See Lockert v. Pullman Power Products Corporation, 84 ERA-15 (August 19, 1985).

   In support of the finding that internal reports are protected activity, the court in Mackowiak and the Secretary in Lockert cite Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772 (D.C. Cir.1974). Phillips was a whistleblower case brought under the Mine Health and Safety Act. The court in that case held that internal reports are protected activity. In Mackowiak the court stated that the Energy Reorganization Act was modeled after and serves the same purpose as the Mine Health and Safety Act. Based upon the holding in Phillips, the court in Mackowiak concluded that internal reports are protected. Likewise, the Water Polution Control Act serves the same purpose of providing employee protection as does the Mine Health and Safety Act and the Energy Reorganization Act. The holding in Phillips is persuasive precedent in the instant case.

   After careful consideration of all the evidence in this case,

it is clear that the complainant expressed criticisms and concerns about the Section 311 fund moneys being spent improperly and thereby jeopardizing the environmental cleanup program. Her complaints took the form of internal reports to supervisors, in addition to reports to parties outside the Project. The letters to the Office of Inspector General in December 1985 and January 1986 were disclosures of information she made to Bob Ging in the hope that somebody would do something to correct the problems. Her concern of waste and mismangement were reasonably perceived, whether or not any laws were violated. Respondent's evidence does not convince me that her concerns were frivolous or unfounded. She need not "prove" any violation of the enviornmental laws by Respondents in order to establish her case. Complainant's actions were reasonable, and in the public interest. Such conduct is of the type deserving of protection under the Act.

   Having concluded that Complainant had engaged in protected activities, the remaining issue is whether this activity was the motivating reason for her dismissal. Mr. Meyer testified that one of the reasons Complainant was discharged was that she divulged information to unauthorized persons outside the Project. One such incident occurred when Complainant spoke with Mr. Ging about the Novosel site. There was also testimony that Complainant disclosed to the public BES's basic order agreement. The testimony established that Mr. Meyer suspected that it was Complainant who had spoken with Mr. Ging. Mr. Meyer spoke to Complainant about Mr. Ging following Mr. Ging's letters to the Inspector General and the Assistant Inspector General.

   After due assessment of all the testimony on this point, I find that Complainant was terminated primarily because of her reports and complaints to the public, to Mr. Ging, and to her superiors, the latter two being in the nature of protected activity under the Act.

   When the evidence establishes that an illegal motive played some role in the discharge, the burden shifts to the employer to show that Complainant would have been discharged even if the protected activity did not occur. Mt Healthy City School District Board of Education v. Doyle, 429 US 274 1977); Consolidated Edison Co. of N.Y. v. Donovan (2nd Cir. 1982). Mr. Meyer stated that the precipitating reason for discharging Complainant was her unauthorized entry into his office. It appears from this record that she was never informed of the gravity of such an offense, and in fact,

previously worked in his office on occassion.

   The testimony does not establish that Complainant's unauthorized entry into Mr. Meyer's office would have been serious enough to have resulted in her dismissal. Mr. Meyer gave other grounds for his decision to discharge Complainant, including her use of BES's secretarial staff and general allegations of disruptive behavior and friction with other workers. However, I note that Commander Patrick, on two occassions, the last time on April 9, 1986, advised against terminating Complainant because of her great value to the Project (T-466). He was the Administrator of the Section 311 Fund Money for the Coast Guard. Respondent's alleged reasons for her discharge were unconvincing. Accordingly, I find that for purposes of the Act, Complainant was discharged because she had engaged in protected activities.

   The evidence establishes that Complainant had engaged in protected activity under the Act. The reports to Mr. Ging, Mr. Zenon, Ms. Casano and Commander Patrick are protected activities. The evidence also establishes that Mr. Meyer was aware of these activities. He questioned Complainant about the letters Mr. Ging sent to the Inspector General and the Assistant Inspector General. Complainant also testified that Mr. Meyer told her that an anonymous phone caller told Mr. Baranowski that a woman within the Project was leaking information. Mr. Meyer asked Complainant if she was that woman (T-118-9). Also, Complainant testified that when she was let go: Mr. Meyer told her, "you should have known its been coming, and your talking with the public." (T-122) Respondent has not shown by a preponderance of the evidence that it would have reached the same decision as to the dismissal of complainant even in the absence of the protected conduct. I find that Complainant was discharged because she had engaged in protected activities.

   1. The Environmental Protection Agency is ordered to reinstate the Complainant, Suger D. McAllen, to her former position as a contractor under the BOA, subject to all provisions therein.

   2. The Environmental Protection Agency is ordered to make reasonable compensation to complainant for the loss of pay from the date of her termination until reinstatement to her former position or a comparable position.

   3. The Environmental Protection Agency is ordered to pay a reasonable attorney fee for the necessary services rendered to the complainant by attorney Robert P. Ging, Jr.

       RENO E. BONFANTI
       Administrative Law Judge

Dated: November 28, 1986
Washington, DC