DATE: January 25, 1994
CASE NO. 92-SWD-1
IN THE MATTER OF
WALTER MINARD,
COMPLAINANT,
v.
NERCO DELAMAR CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
This case, which is before me for review, was brought
pursuant to the employee protection provision of the Solid Waste
Disposal Act, 42 U.S.C. § 6971 (1988). [1] Complainant
Walter Minard alleged that he was fired by Respondent Nerco
DeLamar Co. ("NDC") in retaliation for internal complaints he
made, in violation of the Act. The Wage and Hour Division of the
Employment Standards Administration investigated the complaint
and found no probable cause to believe that Minard was fired as a
result of protected activity. Thereafter, Minard requested a
hearing on his complaint. After a full evidentiary hearing the
Administrative Law Judge ("ALJ") issued a decision ("R.D. and
O.") recommending that I dismiss Minard's claim for lack of
jurisdiction. I conclude that the ALJ has recommended too narrow
an interpretation of the employee protection provision of the
Act. For the reasons I discuss below, I remand this case for
further proceedings consistent with this decision.
BACKGROUND
The ALJ made only limited findings of fact, which I will
summarize here. NDC is a mine located in Idaho which uses a
cyanide leaching process to separate gold and silver from the
surrounding ore body. See, e.g., Respondent's
Exhibit ("RX") Q,
[PAGE 2]
at 1. The cyanide liquid waste which is a byproduct of this
process was released into a 120-acre tailings pond on the mine
property. R.D. and O. at 2. It appears that the pond was highly
toxic to wildlife. Id. at 2; RX-U-1 to U-5.
Minard worked for NDC as a mechanic 1 (the highest level of
mechanic at NDC). Minard asserted that he was fired by NDC on
November 25, 1991, because he complained to mine management about
dumping five 55-gallon drums of antifreeze into the tailings pond
and about a spill onto the ground of about 100 gallons of used
oil, [2] which Minard thought should be reported to governmental
authorities. R.D. and O. at 1; Transcript ("T.") 53. [3] NDC
responded that the Department of Labor had no jurisdiction over
the matter; that supervisory employees responsible for Minard's
termination were unaware of his expression of any environmental
complaints; and that, in any event, Minard was fired for
insubordination and failure to perform his work in a timely
fashion. R.D. and O. at 1. Although Minard asserted his claim
under the employee protection provision of the Act, he stipulated
that neither antifreeze nor motor oil is listed as a hazardous
substance pursuant to the Act. Id. at 4; Tr. 20-21;
Complainant's Closing Argument and Memorandum at 4.
The hearing record contains ample evidence regarding the
events which preceded Minard's firing. However, the ALJ did not
address that evidence, and given the posture of the case, neither
shall I. The ALJ held that because Minard stipulated that
neither antifreeze nor motor oil is classified as hazardous waste
under the Act, the ALJ lacked jurisdiction to decide Minard's
claim. Specifically, the ALJ stated that:
Logic dictates, and the statutory and regulatory
language . . . make clear, that an employee's
complaints regarding his employer's conduct which, even
if true, do not allege a violation of the statute
providing whistleblower protection, are not protected
by that statute . . . . An employer's conduct which is
not proscribed by the Act, and thus does not run afoul
of the Act even if it occurred exactly as alleged by
the employee, cannot lead to "a proceeding under this
chapter" or an action "to carry out the purposes of
such Federal statute," and does not concern a
"requirement imposed under such Federal statute."
* * * *
It would make as much sense to find jurisdiction in
this case under the Energy Reorganization Act or the
Surface Transportation Assistance Act as it would under
the Solid Waste Disposal Act, i.e., it would
make no sense at all.
[PAGE 3]
R.D. and O. at 4-5.
DISCUSSION
The question presented here is whether an employee who
complains to his or her employer about the treatment of a
substance which is not listed as a hazardous waste under the Act
may be protected by the Act's whistleblower provision. [4] For
reasons detailed below, I conclude that where the complainant has
a reasonable belief that the substance is hazardous and regulated
as such, he is protected under the Act.
a. A Belief that a Substance is Covered under the Act
Should be Subject to a Reasonableness Test.
The Act's employee protection provision provides in
pertinent part:
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 under any applicable implementation plan, or has
testified or is about to testify in any proceeding
resulting from the administration or enforcement of the
provisions of this chapter or of any applicable
implementation plan.
42 U.S.C. § 6971 (1988). The implementing regulations for
whistleblower proceedings further define what is prohibited under
the SWDA and other environmental whistleblower provisions:
(b) Any person is deemed to have violated the
particular federal law and these regulations if such
person intimidates, threatens, restrains, coerces,
blacklists, discharges, or in any other manner
discriminates against 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 proceeding or in
any other action to carry out the purposes of such
Federal statute.
29 C.F.R. § 24.2(b) (1994).
The United States Court of Appeals for the District of
Columbia Circuit has referred to the Act and its progeny as "a
[PAGE 4]
maze of statutes dealing with hazardous wastes. . . ."
Hazardous Waste Treatment Council v. U.S. EPA, 861 F.2d
270, 271 (1988). RCRA was enacted in 1976, Pub.L. No. 94-580, 90
Stat. 2795. It underwent substantial revision in the Solid Waste
Disposal Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat.
2334. The amended Act provides "a comprehensive framework for
the regulation . . . of the treatment, storage, and disposal of
hazardous wastes." Hazardous Waste Treatment Council v. U.S.
EPA, 861 F.2d at 271. Subtitle C, 42 U.S.C. §§
6921-69b, requires EPA to promulgate implementing regulations.
Section 6921(b)(1) requires EPA to develop criteria for
identifying hazardous wastes, and authorizes EPA to list wastes
as hazardous according to criteria contained in Section 6921(a).
Wastes are considered hazardous if they are listed as such by EPA
(40 C.F.R. §§ 261.11(b), 261.30-261.33 (1992)), or if
they have one of four technical characteristics of hazardousness.
40 C.F.R.
§ 261.11(a)(1). These are ignitability, corrosivity,
reactivity, and toxicity. 40 C.F.R. §§ 261.20-261.24.
Complainant has conceded that neither oil nor antifreeze is
listed as hazardous waste by EPA pursuant to these statutory and
regulatory provisions. However, the ALJ's reasoning that such a
concession alone deprives him of jurisdiction over Minard's
whistleblower complaint is too constricted given the complexity
and opacity of the Act and the nature of the substances about
which Minard complained.
The structure and purpose of the Act strongly support the
adoption of a reasonableness test for determining whether an
employee complaint about the treatment of a particular substance
is protected under the whistleblower provision of the Act. As I
noted above, substances are hazardous wastes under the Act either
because EPA "lists" them as such, or because they meet certain
statutory and regulatory criteria. Most of the
substances which are listed under RCRA are not identifiable by
persons without a chemistry background. Thus, for example
Section 261.31 lists EPA hazardous waste Number F024:
Process wastes, including but not limited to,
distillation residues, heavy ends, tars, and reactor
clean-out wastes, from the production of certain
chlorinated aliphatic hydrocarbons by free radical
catalyzed processes. These chlorinated aliphatic
hydrocarbons are those having carbon chain lengths
ranging from one to and including five, with varying
amounts and positions of chlorine substitution. (This
listing does not include wastewaters, wastewater
treatment sludges, spent catalysts, and wastes listed
in § 261.31 or § 261.32.)
[PAGE 5]
It is unreasonable to expect the average lay person to know what
is or is not on the Act's hazardous waste "list." Moreover, as I
noted above, a substance need not be "listed" by EPA in order to
be deemed hazardous waste under the Act. See 40 C.F.R.
§§ 261.20-261.24. It may be hazardous waste within the
meaning of the Act if it meets any of the four articulated tests
for hazardousness. It is even less likely that the average lay
person would be able to determine whether a particular substance
met one of those tests for hazardousness. I conclude that it is
appropriate to apply a reasonableness standard in this type of
situation. [5]
Of course there are limits to the reach of a whistleblower
provision under a reasonableness test. Thus, in Patrick
Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2, Sec. Dec.
and Ord., Aug. 17, 1993, slip op. at 26 (citations omitted), I
ruled that an employee's belief "'that the environment may be
negatively impacted by the employer's conduct,'" is not
sufficient to invoke the Toxic Substances Control Act
whistleblower provision. An employee's complaints must be
"'grounded in conditions constituting reasonably perceived
violations' of the environmental acts." [6] I have also
made it clear that there can be jurisdictional limits to
employees' complaints. Thus in Decresci v. Lukens Steel
Co., Case No. 87-ERA-113, Sec. Dec., Dec. 16, 1993, slip op.
at 4, I discussed the environmental whistleblower provision
contained in the Energy Reorganization Act:
[T]he language of the statute and the Secretary's
decisions make it clear that not every act of
whistleblowing is protected under the ERA simply
because the employer holds a license from the NRC. For
example, an employee may complain that a government
contractor such as Lukens retaliated against him for
reporting that his employer has not complied with the
requirements of Executive Order 11,246 which prohibits
race and sex discrimination in employment, but his
recourse would be to file a complaint with the Office
of Federal Contract Compliance Programs under the
Executive Order and its implementing regulations, 41
C.F.R. § 60-1.32 (1992), not a complaint under the
ERA. A Complainant under the ERA must prove that
retaliatory action was taken against him because
he engaged in conduct listed in 42 U.S.C. §
5851(a)(1), (2) or (3), which the Secretary has
interpreted broadly to mean any action or activity
related to nuclear safety.
Similarly, in Aurich v. Consolidated Edison Co. of New York,
Inc., the Secretary remanded the case to the ALJ with
[PAGE 6]
instructions that:
If Complainant has complained that one or more
provisions of [EPA regulations dealing with emissions
of asbestos to the outside air] had been violated by
Respondent, such complaint would appear to be protected
under 42 U.S.C. § 7622(a) [the Clean Air Act
whistleblower protection provision]. On the other hand
if complainant's complaints were limited to airborne
asbestos as an occupational hazard, the employee
protection provision of the CAA would not be triggered.
slip op. at 3-4 (emphasis supplied). Thus, the environmental
whistleblower provisions are intended to apply to environmental,
and not other types of concerns. Minard's allegations about oil
and anti-freeze would fall within the environmental rubric.
b. It was Reasonable for Minard to Believe that Oil and
Antifreeze Were Substances Regulated Under the Act.
Having concluded that a reasonableness standard should be
applied, it must be determined whether under the circumstances it
was reasonable, given Minard's training and experience, for him
to believe that used oil and/or antifreeze were hazardous wastes
subject to EPA regulation.
1. Oil
Whether used oil should be "listed" under the Act has been a
vexing, and often debated issue. In 1978 EPA proposed to list
waste lubricating oil and waste hydraulic and cutting oil as
hazardous wastes on the basis of their toxicity. 43 Fed. Reg.
58946, 58957 December 18, 1978. However, in the May 19,
1980 final rule EPA decided to defer regulation of recycled and
used oil. 45 Fed. Reg. 33084. [7]
Shortly thereafter Congress enacted the Used Oil Recycling
Act of 1980, Pub. L. No. 96-463, 94 Stat. 2055 (1990) ("UORA").
[8] Section 8 of UORA, Pub. L. 96-463, Section 9, provided:
Not later than [January 14, 1981], the Administrator
. . . shall--
(1) make a determination as to the applicability
to used oil of the criteria and regulations promulgated
under [the RCRA listing provision] relating to the
characteristics of hazardous wastes, and
(2) report to the Congress the determination
together with a detailed statement of the data and
other information upon which the determination is
based.
94 Stat. at 2058 (uncodified).
EPA determined that certain types of used oils should be
listed as hazardous wastes based on the presence of a number of
toxicants and contaminants in crude, refined, and used oil.
See[PAGE 7]
Report to Congress: Listing of Waste Oil as a Hazardous Waste
Pursuant to section (6)(2), Pub. L. 96-463, U.S. EPA, 1981. The
report also cited the environmental and human health threats
posed by used and waste oils. Id.
However, EPA did not act on this determination.
In 1984 Congress once again acted regarding the status of
used oil under the Act. It passed the Hazardous and Solid Waste
Amendments Act of 1984, Pub. L. 98-616, 98 Stat. 3221 (Nov. 8,
1984) ("HSWA"), which added Subsection 3014(b) to the Act, 42
U.S.C. § 6935 (1988). That section required the
Administrator of EPA to propose by November 8, 1985, "whether to
list or identify used automobile and truck crankcase oil" as
hazardous wastes under the listing provision of the Act. The
Administrator was also required, not later than November 8, 1986,
to make a final determination "whether to list or identify used
automobile and truck crankcase oil and other used oil" as
hazardous wastes under the Act. 42 U.S.C. § 6935(b) (1988).
EPA thereafter proposed to list all used oils as hazardous waste
because of the presence of toxic constituents. 50 Fed. Reg.
49,258, 49,260 (proposed November 29, 1985). [9] On March 10,
1986, EPA published a supplemental notice requesting, among other
things, comments on a suggestion that EPA consider listing used
oil as a hazardous waste only when it was disposed of. 51 Fed.
Reg. 8206.
Before EPA could reach a final decision on its proposal,
Congress enacted the Superfund Amendments and Reauthorization Act
of 1986, Pub. L. No. 99-499, 100 Stat. 1613 ("SARA"), which,
among other things, granted EPA additional authority to regulate
recycled oil without classifying it as a hazardous waste.
EPA then issued its final regulatory decision not to list
recycled oil as a hazardous waste. It deferred decision on
whether to regulate recycled oil without listing it as hazardous
waste and on whether to list used oil as a hazardous waste. 51
Fed.Reg. 41,900 (1986).
This regulatory decision was challenged in Hazardous
Waste Treatment Council v. U.S. EPA, 861 F.2d 270 (D.C. Cir.
1988). The court of appeals rejected EPA's action and stated that
EPA must "determine whether any recycled [or used] oils meet the
technical criteria for listing . . ." under the Act.
Hazardous Waste Treatment Council v. U.S. EPA, 861 F.2d at
277.
Following the 1988 court of appeals decision, EPA
reevaluated the treatment of used oils under RCRA. [10]
Finally, on May 20, 1992 (five months after Minard was
terminated) EPA published a final rule in which it announced its
decision not to list used oils destined for disposal as hazardous
waste "based on the finding that all used oils do not typically
and frequently meet the technical criteria for listing a waste as
hazardous" under RCRA. 57 Fed. Reg. 21524. Among other factors,
EPA relied
[PAGE 8]
heavily on the fact that "the current regulatory structure
controlling the management of used oil destined for disposal
provides adequate controls so that used oil will not pose a
substantial threat to human health or the environment."
57 Fed. Reg. at 21528. [11]
Thus, EPA has not determined that used oil is not hazardous
to human health or the environment. Rather it has concluded
that:
In combination, application of [the listed controls]
imposed by EPA and other federal agencies prevent the
mismanagement of used oil to such an extent that used
oil destined for disposal is unlikely to pose a
substantial present or potential hazard to human health
and the environment.
Id. EPA also explicitly reaffirmed that, with one
exception not relevant here, "[u]sed oils exhibiting one or more
of the characteristics of hazardous waste and which are destined
for disposal continue to be regulated as hazardous wastes in
accordance with all applicable [RCRA] subtitle C
regulations
. . . ." 57 Fed. Reg. at 21528.
Based on this complex regulatory history regarding used oil,
I conclude that it was reasonable for Mr. Minard to assume that a
spill of approximately 100 gallons of used oil was hazardous and
required some notification to an environmental agency. [12]
2. Antifreeze
It was also reasonable for Minard to believe that
antifreeze, which is commonly made from ethylene glycol, was
subject to the Act. There is evidence in the record that some
people believe that antifreeze is toxic. T. 53-55 (Testimony of
Walter Minard); T. 353 (Testimony of Norman Pruitt). [13]
Significantly, ethylene glycol is regulated under the
Clean Air Act and CERCLA, both of which have employee
whistleblower protection provisions. In Section 112 of the Clean
Air Act, as amended, 42 U.S.C. § 7412(b) (Supp. V), Congress
listed "hazardous air pollutants," including ethylene glycol.
[14] Because ethylene glycol is listed as a hazardous air
pollutant under the Clean Air Act, it is included within the
CERCLA definition of "hazardous substances" and therefore is
subject to CERCLA Section 103(a) "Reportable Quantities" (RQ)
requirements. On October 22, 1993, EPA proposed to increase the
statutory one-pound RQ for, among other substances, ethylene
glycol.
58 Fed. Reg. 54836:
EPA has received several letters [that] expressed
concern about the reporting burdens on operators of
automobiles for personal use as a result of the
[PAGE 9]
addition of ethylene glycol to the list of CERCLA substances.
Ethylene glycol comprises over 90 percent of automobile
antifreeze and has a one-pound statutory RQ. Currently, a
release of just over one pound of antifreeze from an automobile
must be reported to the National Response Center, the State
emergency response commission (SERC), and the local emergency
planning committee (LEPC). The proposed adjusted RQ for ethylene
glycol is 5,000 pounds, based on chronic toxicity and application
of the secondary RQ adjustment criterion of biodegradation. The
proposed 5,000-pound RQ for ethylene glycol far exceeds the
amount that would be released from an automobile. Consequently,
if the proposed RQ is promulgated, releases of antifreeze
generally would not require reporting.
Id. at 54837. Thus, when Minard was terminated in 1991,
CERCLA required the reporting of a release of as little as one
pound of ethylene glycol. Therefore I conclude that it was
reasonable for Minard to believe that antifreeze was hazardous
and was regulated as such. c. Title VII Case Law Supports the Conclusion that
Minard's Expression of His Reasonable Belief was
ProtectedActivity under the
Act.
The ALJ suggests that protection under the Act's
whistleblower provision extends to situations in which the
employee is mistaken regarding the facts but not to situations in
which the employee is mistaken regarding the law. He cites case
law developed under Section 704(a) of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (1988) to support
his conclusion. Section 704(a) contains two provisions. First,
it prohibits discrimination by an employer against an employee
who participates in any stage of an employment discrimination
complaint process (the "participation clause"). Second, it
prohibits discrimination by an employer against an employee who
opposes any practice prohibited by Title VII (the "opposition
clause"). Minard's alleged internal complaints are similar in
kind to those which would fall within Section 704(a)'s
"opposition clause"; he was not participating in a RCRA
enforcement action, rather, he was opposing his employer's
treatment of antifreeze and an oil spill.
Cases construing the limits of the opposition clause have
generally held that if an employee complains about employment
discrimination based upon one of Title VII's enumerated protected
characteristics (race, religion, sex, or national origin), the
opposition clause provides protection against retaliation by the
employer, even if the employee is mistaken, as a matter of
fact, regarding the alleged discrimination. [15] The
Secretary of Labor has reached similar conclusions under
environmental whistleblower provisions. [16] The ALJ in this
case was willing to grant that an
[PAGE 10]
employee might be protected under the SWDA whistleblower
provision if he or she protested an employer's action which would
have constituted a violation of the Act if it had, in fact,
occurred as alleged. R.D. and O. at 4. Relying in part on
certain Title VII case law the ALJ asserts, however, that where
the employer's alleged action, even if it in fact happened
just as the complainant alleged, would not have been a
violation of the Act, then the employer cannot be found to have
violated the Act's whistleblower protection provision if it
retaliates against the complaining employee. [17]
Another line of Title VII cases, however, takes a broader
view of what may constitute protected activity under Section
704(a)'s "opposition clause." Berg v. La Crosse Cooler
Co., 612 F.2d 1041 (7th Cir. 1980), involved a plaintiff who
was discharged after she suggested to her supervisor that the
company's policy of refusing to include pregnancy within its
temporary disability coverage constituted sex discrimination. At
the time of Berg's discharge the EEOC had issued a guideline, and
several courts of appeals had ruled, that discrimination on
account of pregnancy constituted sex discrimination. However,
after her discharge and before the district court's decision in
the case, the Supreme Court ruled in General Electric Co. v.
Gilbert, 429 U.S. 125 (1976), that discrimination on account
of pregnancy did not constitute sex discrimination within the
meaning of Title VII. After the decision in Gilbert the
district court granted summary judgment against Berg. The
district court reasoned that even though the Supreme Court issued
Gilbert after Berg's discharge, that Court's
interpretation of Title VII meant that defendant's disability
policy was not unlawful "at any time." Berg, 612 F.2d at
1045.
Subsequently, Congress amended Title VII so that, effective
October 31, 1978, sex discrimination under Title VII encompassed
discrimination on the basis of pregnancy, childbirth, or related
medical conditions. 42 U.S.C. § 2000e(k) (1988). On
appeal the Berg court framed the issue presented as
"whether a retaliatory discharge is an unlawful employment
practice in situations where the employee opposes a practice made
an unlawful employment practice after the discharge [and
therefore lawful at the time of discharge] but reasonably
believed by the employee to be unlawful at the time of the
discharge." Berg, 612 F.2d at 1045 (emphasis supplied).
The court concluded that, on the facts presented in Berg,
the answer is yes:
The district court's literal reading undermines Title
VII's central purpose, the elimination of employment
discrimination by informal means; destroys one of the
chief means of achieving that purpose, the frank and
[PAGE 11]
nondisruptive exchange of ideas between employers and employees;
and serves no redeeming statutory or policy purposes of its own.
Section [704(a)] plays a central role in effectuating these
objectives. By protecting employees from retaliation, it is
designed to encourage employees to call to their employers'
attention discriminatory practices of which the employer may be
unaware or which might result in protracted litigation to
determine their legality if they are not voluntarily
changed.
* * * *
The plaintiff here was an educated and informed
layperson who should not be burdened with the sometimes
impossible task of correctly anticipating how the
Supreme Court may interpret a particular statute. Even
though she proved wrong, her interpretation coincided
with all of the courts of appeals that decided the
question, with the EEOC guidelines, with three justices
of the Supreme Court, and with Congress. Her opinion
was based upon reasonable belief and her opposition
should be protected from retaliatory discharge.
612 F.2d at 1045-1046.
The D.C. Circuit amplified the Berg rationale in
Parker v. Baltimore & O. R. Co., 652 F.2d 1012, 1020
(1981):
B&O argues that most of the cases rejecting a narrow
reading of the opposition clause are inapposite here,
because they involve mistakes "of fact" rather than
mistakes "of law." It is not clear to us that a
conclusion that B&O's affirmative action efforts were
on the permissible side of some juridical line would
necessarily reflect an error of law rather than of fact
in Parker's opposition, but in any case we find the
suggested distinction irrelevant to the purposes of
section 704(a). Characterization of the employee's
mistake as one of fact or of law affects neither the
employee's legitimate interest in acting on his beliefs
nor the employer's interest in asserting legitimate
management prerogatives. We agree with the Seventh
Circuit's conclusion in Berg v. La Crosse Cooler Co.,
612 F.2d 1041, 1045-46 (7th Cir. 1980)--a layperson
should not be burdened with the "sometimes impossible
task" of correctly anticipating how a given court will
interpret a particular statute. Opposition based on
reasonable belief should be protected from retaliation.
Thus, there is persuasive case law under Section 704(a) of Title
VII that opposition to an employer's actions which are reasonably
[PAGE 12]
believed to violate Title VII is protected, irrespective of
whether it is ultimately determined that the employer's actions
did not violate Title VII either because the employer did not do
what was complained about or because the actions the employer
took did not violate Title VII. Such an approach is sensible
under the SWDA's whistleblower provision as well.
Section 704(a)'s opposition clause and the SWDA's
whistleblower provision share common goals. One of the often
stated purposes of Title VII's opposition clause is to encourage
the use of informal means to settle disputes:
[T]his Court believes that appropriate informal
opposition to perceived discrimination must not be
chilled by the fear of retaliatory action in the event
the alleged wrongdoing does not exist. It should not
be necessary for an employee to resort immediately to
the EEOC or similar State agencies in order to bring
complaints of discrimination to the attention of the
employer with some measure of protection. The
resolution of such charges without governmental
prodding should be encouraged.
Sias v. City Demonstration Agency, 588 F.2d at 695.
Similarly, in Parker v. Baltimore & O. R. Co., 652 F.2d at
1019-1020 (citation omitted), the court stated:
The obvious concern of Congress, in both the opposition
and participation clauses, was to protect the employee
who dares to speak out against his employer's hiring
practices. The enforcement scheme Congress chose for
Title VII relies heavily on the initiative of aggrieved
employees, whose efforts in the public interest would
be severely chilled if they bore the risk of discharge
whenever they were unable to establish conclusively the
merits of their claims.
Moreover, by extending protection to employees who
oppose discriminatory practices without recourse to the
EEOC, Congress encouraged voluntary internal attempts
to remedy discrimination. The remedial purposes of
Title VII would be ill served by telling employees that
they can be sure of protection only if they limit their
complaints about discrimination to formal EEOC filings,
and that internal opposition, though encouraged, is
undertaken "at the accuser's peril. . . ."
* * * *
An employer has . . . no legitimate interest in
[PAGE 13]
retaliating against an employee for opposition per se, and the
fact that a non-frivolous claim is ultimately resolved in favor
of management does not justify an attempt to suppress the claim
by penalizing the employee who raised it.
For similar reasons, the Secretary of Labor has emphasized
the importance of encouraging informal employee environmental
whistleblower complaints. See, e.g., Mackowiak
v. University Nuclear Systems, Inc., Case No. 82-ERA-8, Sec.
Dec. and Ord., Apr. 29, 1983, slip op. at 8-10, remanded on
other grounds, 735 F.2d 1159 (9th Cir. 1984)(affirmed as to
scope of protected activity, 735 F.2d at 1163).
In sum, both Title VII case law and previous Labor
Department decisions support the conclusion that under the SWDA
whistleblower provision an employee's reasonable belief that his
employer is violating the Act may--depending on the particular
facts of the case--be sufficient basis for a retaliation claim if
the employer allegedly takes action against that employee because
he expressed his belief, irrespective of after-the-fact
determinations regarding the correctness of the employee's
belief.
CONCLUSION
The fact that used oil and antifreeze were not listed under
the SWDA at the time that Minard allegedly complained to NDC
should not be dispositive of this case. The logic of the D.C.
Circuit in Parker is equally applicable here: an employee
should not be required to know which of the myriad substances
known to humankind has to date been listed as a hazardous waste
under the Act, or is determined by his employer to be hazardous
by application of 40 C.F.R. §§ 261.20-261.24, in
order to gain whistleblower protection under that statute.
Because Minard's belief that these were hazardous substances
subject to EPA regulation was reasonable, the ALJ has
jurisdiction to determine whether Minard was fired as a result of
his alleged complaints. For the forgoing reasons the
recommended decision of the ALJ is rejected and the case is
remanded for further proceedings consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
This provision is also known as Section 7001 of the Resource
Conservation and Recovery Act ("RCRA"). For simplicity I will
refer throughout this decision to "the Act" or "the SWDA."
[2]
The oil was hydraulic fluid which had leaked from a piece of
mining machinery. T. 59 (Testimony of Walter Minard); T. 355-359
(Testimony of Norman Pruitt).
[3]
Because Minard alleges that he was fired for complaining about
the dumping of antifreeze in the tailings pond and the failure to
report an oil spill on the mine property, I will not refer
further to the toxicity of the pond as it related to cyanide
disposal.
[4]
The Secretary of Labor has held in previous decisions that
internal complaints constitute protected activity under the
environmental whistleblower provisions, including the SWDA.
See,e.g., Kahn v. Commonwealth Edison Co.,
Case No. 92-ERA-58, Sec. Dec. and Ord., October 3, 1994, slip op.
at 4; Guttman v. Passaic Valley Sewerage Commissioners,
Case No. 85-WPCA-2, Final Dec. and Ord., Mar. 13, 1992, slip op.
at 11-12, aff'dsub nom.Passaic Valley
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474
(3d Cir. 1993); Wagoner v. Technical Products, Inc., Case
No. 87-TSC-4, Final Dec. and Ord., Nov. 20, 1990, slip op. at 11-
12; Willy v. The Coastal Corporation, Case No. 85-
CAA-1, Sec. Dec. Jun. 4, 1987, slip op. at 3-8. Thus, there is
no need to address that issue here.
[5]
My holding here is similar to that which has been made
regarding refusals to work:
A worker has a right to refuse to work when he has a
good faith, reasonable belief that working conditions
are unsafe or unhealthful. Whether the belief is
reasonable depends on the knowledge available to a
reasonable [person] in the circumstances with the
employee's training and experience.
Pensyl v. Catalytic, Inc., Case No. 83-ERA-1, Sec. Dec.
and Ord., January 13, 1984, slip op at 7.
[6]
Similarly, it is unlikely that an employee could successfully
show that it was reasonable for him to have complained about such
things as the environmental effects of spilled milk. However, a
complainant should be given the opportunity to demonstrate that
it was reasonable, under the specific circumstances of the case,
to believe that a given action on the part of the employer
created an environmental hazard in violation of one of the
federal environmental statutes.
[7]
EPA noted, however, that under the May 19 regulations waste oil
that exhibited one of the RCRA characteristics of hazardous
waste, that was disposed or, accumulated, stored, or treated
prior to disposal, would be regulated as a hazardous waste
subject to Subtitle C of RCRA. See 57 Fed. Reg. 21525.
[8]
Congressional findings under UORA, which are codified at 42
U.S.C. § 6901a (1988) state:
The Congress finds and declares that--
(1) used oil is a valuable source of increasingly
scarce energy and materials;
(2) technology exists to re-refine, reprocess,
reclaim, and otherwise recycle used oil;
(3) used oil constitutes a threat to public health
and the environment when reused or disposed of
improperly; and that, therefore, it is in the national
interest to recycle used oil in a manner which does not
constitute a threat to public health and the
environment and which conserves energy and materials.
[9]
EPA stated:
The Administrator has determined that used oil contains
highly toxic contaminants in significant quantities,
that these contaminants are mobile and persistent in
the environment, and that used oil is generated in
large quantities. Thus, these wastes may pose a
substantial present or potential threat to human health
or the environment when improperly transported,
treated, stored, recycled, disposed, or otherwise
managed.
50 Fed. Reg. 49258, 49265 (footnote omitted). EPA also noted
that its treatment of used oil would have an effect under
the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 961
et. seq:
Today's proposed listing of used oil as a hazardous
waste will, upon final promulgation, also result in its
classification as a hazardous substance under Section
101(14) of CERCLA. Section 103 of CERCLA requires that
persons in charge of vessels or facilities from which
hazardous substances have been released in quantities
that are equal to or greater than the reportable
quantity (RQ) established under CERCLA section 102
immediately notify the National Response Center (NRC)
of the release.
Under section 102 of CERCLA, used oil will be
automatically assigned an RQ of one pound (after it has
been listed as a hazardous waste) until EPA adjusts the
statutory RQ. Thus, until adjusted by EPA regulations,
persons releasing one pound or more of used oil must
notify the NRC. EPA is today proposing to adjust the
statutory one pound for used oil to 100 pounds based on
the application of its RQ adjustment methodology.
50 Fed. Reg. 49258, 49267.
[10]
In 1991 EPA published a Supplemental Notice of Proposed
Rulemaking. 56 Fed. Reg. 48,000, September 23, 1991. The 1991
notice presented the information which EPA had gathered and
requested comment on whether to finalize all or part of its 1985
proposal to list used oil as a hazardous waste.
[11]
The current regulations cited by EPA were:
Those of EPA and the U.S. Coast Guard for oil
discharges into navigable waters; U.S. Department of
Transportation requirements; EPA regulations of
polychlorinated biphenyls (PCBs) under the Toxic
Substances Control Act, hazardous waste characteristics
applying to used oil that is disposed under RCRA,
underground storage tank requirements (UST) under RCRA;
Underground Injection Control (UIC) permits under the
Safe Drinking Water Act; Spill Prevention Control and
Countermeasures (SPCC) plans and National Pollutant
Discharge Elimination System (NPDES) storm water
regulations under the Clean Water Act; and the phase
down of lead in gasoline under the Clean Air Act.
Id. EPA also noted that several states regulate used oil
as a hazardous waste. Id.
[12]
Idaho law also draws attention to oil as a possible hazard.
Thus, Idaho Code § 39-4408(3) (1994) provides that: "Waste
or used oil or other material which is contaminated or mixed with
any hazardous waste, other than wastes identified solely on the
basis of ignitability, shall not be used for dust suppression or
road treatment."
[13]
Seealso the Material Safety Data Sheet (MSDS)
for ethylene glycol, which NDC entered into the record. RX-T.
Although there is no testimony to explain the relevance of the
ethylene glycol MSDS, it is safe to assume that the antifreeze
being used by NDC during the time in question contained ethylene
glycol. The MSDS describes ethylene glycol as hazardous, and
indicates a threshold limit value of 50 parts per million
(vapor). Signs and symptoms of acute overexposure are listed as
"drunkeness [sic], narcosis." Emergency and First Aid Procedures
are listed for inhalation ("Remove to Fresh Air"), eyes ("Flush
with water for 15 minutes"), skin ("Wash off with water") and
ingestion ("Drink large quantities of water, induce
vomiting").Id.
[14]
See Pub.L. 101-549, 104 Stat. 2531 Nov. 15, 1990.
[15]
In Sias v. City Demonstration Agency, 588 F.2d 692, 695
(9th Cir. 1978), the court of appeals stated that, "[w]hen an
employee reasonably believes that [employment] discrimination
exists, opposition thereto is opposition to an employment
practice made unlawful by Title VII even if the employee turns
out to be mistaken as to the facts." Similarly, in Payne v.
McLemore's Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir.
1981), defendant failed to rehire plaintiff after plaintiff
participated in a boycott and picketing activity opposed to
McLemore's alleged racial discrimination in employment. The
court of appeals held that "it was not fatal to plaintiff's
section 704(a) case that he failed to prove . . . that McLemore's
discriminated against blacks in retail store employment
opportunities." 654 F.2d at 1137. In EEOC v. Crown
Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983), the
court held:
The employee's statement cannot be
"opposed to an unlawful employment practice" unless it
refers to some practice by the employer that is
allegedly unlawful. It is not necessary, however, that
the practice be demonstrably unlawful; opposition
clause protection will be accorded whenever the
opposition is based on a "reasonable belief" that the
employer has engaged in an unlawful employment
practice.
In this respect the issue presented here is even more compelling
than that under Section 704(a) of Title VII. Title VII prohibits
employment discrimination based upon race, religion, national
origin, or sex. The types of possible violations are limited.
Therefore it might be more reasonable to expect an employee to
correctly determine whether or not an employer is engaging in an
action which might violate Title VII than it would be to expect
an employee to know what substances are regulated under a
particular environmental whistleblower statute.
[16]
In Dodd v. Polysar Latex, Case No. 88-SWD-0004, Sec.
Dec. and Ord., Sept. 22, 1994, complainant had asked his employer
why "we are exempt from RCRA reporting" and had raised other
issues related to RCRA. Dodd, slip op. at 8-9. The
Secretary held that:
These complaints are grounded in conditions
constituting reasonably perceived violations of the
environmental acts and are protected . . . . Even
though Respondent disagreed with the test results and
with Complainant's theory of why the ponds tested
flammable, Respondent does not show that Complainant's
position was unreasonable . . . . Respondent admits
that Complainant "truly . . . believed" that the drum
situation was reportable . . . . And Complainant's
pressing the issue was protected conduct, even though
he may have been tentative and uncertain about the law.
Dodd, slip op. at 9 (citations omitted). SeealsoScerbo v. Consolidated Edison Co., Case No.
89-CAA-2, Sec. Dec., Nov. 13, 1992, slip op. at 5; Aurich v.
Consolidated Edison Co., Case No. 86-CAA-2, Sec. Dec., Apr.
23, 1987, slip op. at 4-5.
[17]
There are two cases which illustrate the application of a
law/fact distinction under Section 704(a) Title VII. In
Crowley v. Prince George's County, 890 F.2d 683 (4th Cir.
1989), the Plaintiff claimed that he had been demoted in
retaliation for having investigated instances of racial
harassment by police officers against members of the community.
The court held that harassment of citizens by police officers is
not actionable under Title VII, and therefore that the claim of
retaliation was not cognizable under Section 704(a).
Crowley, 890 F.2d at 687. Similarly, in Holden v.
Owens-Illinois, Inc., 793 F.2d 745 (6th Cir. 1986), the
plaintiff alleged that she had been discriminated against in
retaliation for her attempts to implement an affirmative action
plan pursuant to Executive Order No. 11,246. The court held:
Since Title VII does not require the adoption of
affirmative action programs, to the extent that
plaintiff sought to implement an affirmative action
plan which would comply with Executive Order No.
11,246, plaintiff was not opposing a practice that
violated Title VII. Consequently, the District Court
erred in treating plaintiff's attempts to implement an
affirmative action program which would comply with
Executive Order 11,246 as protected conduct under the
"opposition clause."
Holden, 793 F.2d at 749.
