DATE ISSUED: APR 7 1988
CASE NO. 88-WPC-1

In the Matter of

EARL W. ARTHRELL

    v.

PITTSBURGH SPRING, INC. & D.G.S. COMPANY

   This case was scheduled for hearing in December, 1987, but was continued by order of December 23, 1987 to allow the complainant some additional time in which to seek legal representation. On January 14, 1988, counsel for the defendant D. G. S. Company (D.G.S.) filed a Motion for Summary Decision. In its Motion, D.G.S. contended that the action against it should be dismissed for: 1) failure to state a claim under the Federal Water Pollution Control Act, 33 U.S.C.A. § 1251 et seq., (FWPCA or Act) and 2) failure to comply with the thirty day filing requirement of 33 U.S.C.A. § 1367(b) and 29 C.F.R. § 24.3(h).

   An Order denying defendant's Motion was issued on February 8, 1988. With regard to the defendant's second argument, that the complainant did not comply with the thirty day filing requirement contained in the statute and regulations, I found the complaint to he timely filed based upon equitable tolling considerations.

   However, with regard to the defendant's first argument, that the complainant has failed to state a claim under the Federal Water Pollution Control Act, I determined that the evidence was insufficient to support such an allegation. I stated that the defendant must provide more specific allegations as well as evidence to support its contentions.

Subsequently, on march 10, 1988, counsel for the defendant filed a Second Motion for Summary Decision. The allegations made in defendant's first Motion were incorporated by reference, and an affidavit of Daniel G. Shuss, owner of D.G.S., was attached as support for said allegations. In the affidavit, Mr. Shuss stated that he has conducted inquiries into whether any proceedings have been brought against either D.G.S. or Pittsburgh Spring, Inc., in connection with the alleged oil spill, and has found that no proceedings, under the Federal Water Pollution Control Act or otherwise, have been brought. Defendant therefore asks that the case against it be dismissed because the complainant is not entitled to the protection of the Act.

   The employee protection provision of the FWPCA, which is similar to those found in the other Federal environmental protection statutes, states as follows in pertinent part:

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be 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.

33 U.S.C.A. § 1367(a)

   The regulations at 29 C.F.R. § 241 et. seq. implement the employee protection provisions for which the Secretary of Labor has been given responsibility pursuant to several Federal environmental statutes, including the FWPCA. To be protected under these regulations is any employee who has:

(1) commenced, or caused to be commenced, or is about to commence or cause to be commenced a proceeding under one of the Federal statutes listed in § 24.1 or a proceeding for the administration or

enforcement of any requirement imposed under such Federal statute;

(2) testified or is about to testify in any such proceeding; or

(3) assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute.

   In its Motion, the defendant contends that because it has not been the object of any proceeding instituted under the Act in connection with the incident reported, the complainant is unable to show that he is a protected employee thereunder. This argument must be rejected. Protection under the Act and its regulations should not turn on whether or not the appropriate government agency has decided to take enforcement action against an employer based on an employee's report.

   In a case brought under the employee protection provision of the Clean Air Act, 42 U.S.C. §7622 (1982), the Secretary of Labor held that the complainant was within the scope of protection provided by the Act when he made internal complaints to his employer regarding practices which he believed could cause air pollution. No. 86-CAA-1, Poulos v. Ambassador Fuel Oil Co. (April 27, 1987). The Secretary reversed the Administrative Law Judge's recommendation for dismissal, which was based on his conclusion that the complainant had not engaged in protected activity because his complaints had not been made to a government agency, and therefore did not rise to the level of initiation of an enforcement proceeding. Citing NLRB v. Scrivener, 405 U.S. 117, 122 (1972), the Secretary noted that the far ranging language of the provision, left undefined by Congress, revealed an intent to afford broad protection to employees who report violations of law. The opinion goes on to state: "Furthermore, I do not believe that these provisions can he read to limit protection only to circumstances where a formal nexus between a 'proceeding' and the employee's conduct is demonstrated." Poulos at 6. The Secretary found further support for the holding in a series of cases involving internal complaints under the Energy Reorganization Act, the Mine Safety Act, and Fair Labor

Standards Act, which held that such activity was protected. See Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir, 1984); Kansas Gas and Electric Co. v. Brock, 780 F. 2d 1505 (10th Cir. 1985) cert. denied, 106 S. Ct. 3311 (1986); Munsey v. Federal Mine Safety and Health Review Commission, 595 . 2d 735 (D. C. Cir. 1978); Love v. Re/Max of America, Inc., 513 F. 2d 179 (8th Cir. 1975). Because the language or the employee protection provisions in these statutes is so similar, case law developed under them is instructive in interpreting the provision contained in the FWPCA.

   If the statutory language is broad enough to encompass internal complaints, it must include the situation where a complaint was made to the Pittsburgh Police Department, a government entity, as well, which apparently failed to take any action with regard to instituting legal proceedings against the employer. The scope of the employee protection is defined by the need for protection, rather than the discretionary actions of enforcement agencies which result in bringing some but not other complaints into formal proceedings. See Scrivener, 405 U.S. at 124. I therefore find that the complainant is a protected employee within the ambit of the FWPCA.

   For the above reasons, IT IS ORDERED that the defendant's Second Motion for Summary Decision is DENIED. The case will be set for hearing at a later date.

       DANIEL L. LELAND
       Administrative Law Judge

DLL/bjh