Case No. 93-SDW-4

In the Matter of:

RICHARD W. EMORY, JR.
   Complainant

   v.

U.S. ENVIRONMENTAL PROTECTION AGENCY
    Respondent

   This is a whistleblower action brought under the employee protection provisions of seven federal environmental protection statutes: the Clean Water Act ("CWA"), also known as the Water Pollution Control Act, 33 U.S.C. §1367; the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851; the Clean Air Act ("CAA"), 42 U.S.C. §7622; the Safe Drinking Water Act, 42 U.S.C. 300j-9(i)("SWA"); the Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6971; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2601; and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610. Complainant, Richard Emory, is a former acting director of the Criminal Enforcement Counsel Division ("CECD") of the Office of Criminal Enforcement of the respondent, the United States Environmental Protection Agency ("EPA".). He asserts that he has suffered retaliation in his employment because of his work in documenting alleged mishandling by the United States Department of Justice of criminal cases involving enforcement of the federal environmental laws under EPA's jurisdiction. The matter is scheduled for a hearing before me commencing January 18, 1994.

   EPA has filed a motion to dismiss or for summary judgment on the grounds that: (1) the Civil Service Reform Act of 1978 and the Whistleblower Protection Act provide a preemptive and exclusive remedy for federal employee whistleblowers; and (2) the employee protection provisions of the above-cited statutes do not apply to federal employees such as

Mr. Emory because the United States and federal agencies are not "persons" or "employers" subject to the prohibitions of these statutes and because federal employees are not covered "employees."

   Two decisions by the Secretary of Labor ("the Secretary"), Pogue v. United States Department of Navy Mare Island Naval Shipyard, 87-ERA-21 (May 10, 1990), and Conley v. McClellan Air Force Base, 84-WPC-1 (September 7, 1993), require denial of the motion. Because Conley has been issued quite recently, a copy is attached for the information of the parties. Both Pogue and Conley were whistle blower actions brought by federal employees. In both cases, the Secretary rejected these arguments.

I. CSRA as complainant's exclusive remedy

   The Secretary has rejected the argument that the CSRA is a federal whistleblower's exclusive remedy in two of the seven statutes invoked here, CWA and CERCLA. These reasons are set forth in Pogue at pp. 13-16 and Conley at pp. 9-17 and need not be repeated here. I find them equally applicable to all the employee protection provisions invoked by the complainant. CSRA is not the complainant's exclusive remedy.

II. Coverage of the EPA and its employees

A. Complainant as an "employee"

   In Pogue, the Secretary held that the complainant, an employee of the Navy, was covered under the CERCLA whistleblower provision because (1) neither the statute itself nor the legislative history suggests that the government's own employees are excluded, and (2) the language of the provision, protecting and making available its remedies to "any" employee without descriptive words of limitation, requires coverage of "all" or "each and every" employee. Pogue, 5-6. Respondent has pointed to nothing in the language or legislative history of the other statutes invoked in this case to suggest exclusion of government employees, and the language of their employee protection provisions all similarly refer to "any" employee. Accordingly, complainant Emory is a covered employee.

B. The EPA as a "person"

   The employee protection provisions of CWA and CERCLA provide, in pertinent part:

(a) No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee ... by reason of the fact that such

employee ... 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.

(b) Any employee ... who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination. ... . (emphasis added).

   The parallel provisions of the other statutes are virtually identical, except that ERA, CAA, SWA, and TSCA substitute the term "employer" for "person" in subsection (a). All, however, provide, in subsection (b), for review of a firing or discriminatory act committed by a "person," as opposed to an "employer." Thus, with regard to those provisions which substitute the term "employer" for "person," an 'employer" would still have to be a "person" for review to be sought from the Secretary of Labor for any allegedly retaliatory employment actions.

   In Pogue, the Secretary held that the Navy was a "person" prohibited from whistleblower discrimination under CERCLA because the applicable definition of "person" at 42 U.S.C. §9601(21) specifically included the "United States Government." (Id. at 5). In contrast, in Conley, the Secretary held that the Air Force was not a "person" within the meaning of CWA §1367 because of the conspicuous omission of the United States from the CWA definition, relying on the Supreme Court's observation that this omission "has to be seen as a pointed one when so many other governmental entities are specified." U.S. Dept. of Energy v. Ohio, 503 U.S. , 112 S. Ct. 1627, 1633-1635, 118 L.Ed. 2d 255, 267-268 (1992). Conley at p. 2.

   With respect to the parallel definitional sections in the other statutes, the United States is expressly included in the definitions of "person" under the ERA, CAA, SWA and SWDA (as amended by the Resource Conservation and Recovery Act of 1976 (RCRA)). See 42 U.S.C §2014(1),(s) (includes any U.S. Government agency other than the Nuclear Regulatory Commission); 42 U.S.C. §7602(e)(includes "any agency, department or instrumentality of the United States and any officer, agent or employee thereof"); 42 U.S.C. §300f (11),(12) (includes any federal agency and officers, employees and agencies thereof); 42 U.S.C. §6903(15) (includes each department, agency and instrumentality of the United States"). As complainant

points out, TSCA does not contain a definition of "person" in its definitional section, but it does include the United States as a "person" that may be sued in a citizens' action. 15 U.S.C. §§2602, 2619. Thus, EPA is a "person" subject to the employee protection provisions of all the statutes invoked here except CWA.

B. The EPA as a federal facility

   In Conley, the Secretary held that, even though the Air Force was not covered as a "person" within the meaning of CWA §1367, the complainant was entitled, notwithstanding, to invoke the employee protection provision of the Act by virtue of CWA's "federal facilities" provision, which provides that:

Each department, agency or instrumentality of the executive, legislative, and Judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all federal, state, interstate and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. 33 U.S.C. §1323(a).

   The Secretary interpreted CWA §1367 as a federal requirement respecting the control and abatement of water pollution, and held that, under CWA §1323(a), the federal government is subject to all such requirements, even those such as recordkeeping which may not be central to eliminating pollution. He adopted the ALJ's finding that McClellan Air Force Base constituted a federal facility and held that CWA §1367 thus applied to it in the same manner and to the same extent as any nongovernmental entity.

   In Pogue, the Secretary held that CERCLA's virtually identical federal facilities provision, accompanied by the express inclusion of the federal government in the definition of "person," constitutes an unequivocal

expression of Congress' intent that federal agencies should comply with CERCLA's whistleblower provision. CAA, SWA and SDWA also have virtually identical federal facilities provisions, as well as definitional sections including the United States as a "person." See CAA, 42 U.S.C. §7418(a); SWA, 42 U.S.C. 3003-6(a); and SDWA, 42 U.S.C. §961. Pogue further confirms their applicability to the EPA.

   The EPA's motion to dismiss or for summary judgment is DENIED.

       EDITH BARNETT
       Administrative Law Judge

DATED: December 3, 1993
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