Dated: NOV 21 1991
Case No. 91-TSC-1

In the Matter of:

GUY HELMSTETTER
    Complainant

    v.

PACIFIC GAS & ELECTRIC COMPANY
    Respondent

Guy Helmstetter
    2129 Randolph Drive
    San Jose, California 95128
       In Pro Per

Maureen L. Fries, Esq.
    Pacific Gas & Electric
    77 Beale Street
    San Francisco, California 94106
       For the Respondent

Before: ALEXANDER KARST
    Administrative Law Judge

    This is an appeal from a decision of the U.S. Labor Department Wage and Hour Division to take no action on a complaint filed by Mr. Guy Helmstetter under the Toxic Substance Control Act, 15 U.S.C. § 2601 et seq (TSCA), and the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq (SWDA). Mr. Helmstetter, a law school graduate, appears pro se and alleges that his employer, Pacific Gas

and Electric Company (PG&E), violated the employee protection provisions of the two statutes by ill-treating him following his "investigation" of a PG&E oil spill.

    The background of the events pertinent here is set forth in my Decision and Order in Mr. Helmstetter's previous action against PG&E, (86-SWD-2), a copy of which is appended hereto. Suffice it to say that after his unhappy transfer from PG&E's environmental department to marketing in 1985 described in that Decision, Mr. Helmstetter continued on his own to attempt to police PG&E's environmental practices.

    Mr. Helmstetter alleges he "heard a rumor" in August 1990 that PG&E spilled some oil at the premises of LMC Metals. TR 19. Although that firm's marketing account was not assigned to him, and without being instructed to do so, Mr. Helmstetter went to LMC on August 13, 1990 to "investigate" the rumored spill. He alleges that in the course of his "investigation", he saw a wooden box, a debris dumpster, and some oil and drums with warning labels. He says the warning labels were too small or improper and that the area was not barricaded as it should have been. Mr. Helmstetter advised the PG&E environmental department that the clean-up was "botched and incomplete" and asked for detailed information. The supervisor of the environmental department, a Mr. Promani, told Mr. Helmstetter that there was a spill which was cleaned up, that all appropriate authorities were notified, and declined to give Mr. Helmstetter the information he sought because it was none of his business. Complainant's Opening Brief, p. 5. Mr. Helmstetter advised Mr. Promani that unless he was given details on the spill he would contact local authorities. Promani declined, and Complainant informed the San Jose Fire Department of the spill. Although the Santa Clara County District Attorney's office talked to Mr. Helmstetter later, the authorities apparently took no further action and no public agency asked Mr. Helmstetter to testify in any proceeding.

    Mr. Helmstetter says he learned from the District Attorney's office that the spilled material contained PCBS. Although he does not think he was hurt by the contaminated oil, Complainant alleges that he got oil on his hands, arms and clothing, [and] that he "exposed [himself] to a danger ... [he] was not fully aware of...". TR 43-44.

    Complainant contends that his report of his "investigation" of the spill to his employer and to the authorities were protected activities under TSCA and SWDA. He avers that PG&E retaliated against him for his protected activities in violation of 15 U.S.C. § 2622 and 42 U.S.C. § 6971 by denying him the information he sought, and treated him disparately by not affording him the cleaning-up services afforded to the clean-up crew, or giving him sufficient information about the spilled substance so he could protect his health. It is unclear what clean-up services, if any, were provided to the clean-up crew.

    PG&E moves to dismiss this complaint on the grounds that Mr. Helmstetter's allegations do not state a cause of action under TSCA or SWDA within the jurisdiction of this tribunal.

    The hearing was limited to sorting out Complainant's allegations and to argument on PG&E's motion for what amounts to a judgment on the pleadings. Both parties filed briefs.

    For the purposes of ruling on PG&E's motion to dismiss, I am assuming, without deciding, that all the allegations of Mr. Helmstetter are true.

    It should be noted at the onset that whether PG&E was legally obligated to disclose the information which Mr. Helmstetter wants is not at issue here. Moreover, PG&E correctly argues that whether PG&E has violated the substantive provisions of any environmental laws is irrelevant here because this is not an action to enforce substantive provisions of such laws. This proceeding is only concerned with the question whether PG&E discriminated against Mr. Helmstetter in retaliation for his protected activities.

    There is no allegation here of firing, demotion or discrimination with respect to employment other than PG&E's denial to Mr. Helmstetter of the information he was seeking about the spill and of clean-up services.

    Mr. Helmstetter contends that his report and request to the PG&E environmental department were protected activities because they were analogous to the report of the quality control inspector to his employer in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). PG&E argues that Mackowiak, an Energy Reorganization Act case, is inapposite here because that case turned on the special role of inspectors in nuclear plants. The Court

there reasoned that "every action by quality control inspectors occurs 'in an NRC proceeding,' because of their duty to enforce NRC regulations." Ibid., at 1163. It does not appear to me that Mr. Helmstetter was in a position analogous to the Mackowiak inspector. He was a marketing employee who on his own attempted to monitor the activities of PG&E's environmental department from which he was involuntarily transferred. He was a volunteer acting outside the scope and course of his employment. He was not charged with a duty to investigate oil spills or otherwise monitor the enforcement of environmental laws. While Mr. Helmstetter says that PG&E's chairman asked all employees to "do the right thing" about the environment, I do not construe this general admonition to be an invitation to marketing employees to make on-site "investigations" of rumored oil spills. TR 28. I therefore conclude that Mackowiak is inapplicable here, and that Mr. Helmstetter's report that the clean-up was "botched" and his threat that he would report PG&E's presumed derelictions to the city and county unless PG&E complied with his requests, was not tantamount to participating in a proceeding under TSCA or SWDA.

    The only alleged activity of Mr. Helmstetter which may be protected under TSCA or SWDA is his report to the fire department and his cooperation with the district attorney thereafter. But the alleged discriminatory acts, i.e. the withholding of information and of clean-up services, occured before and not after the protected activity. TSCA and SWDA contemplate the retaliatory discrimination to follow rather than precede the protected activity. Nor can it be said that PG&E retaliated for an anticipated protected activity. The allegation is that Mr. Helmstetter went to the authorities because his request for information was denied. I construe the allegation to be that the denial of information necessarily preceded the protected activity, and that the protected activity would not have occured unless it was provoked by the alleged discriminatory act of denial. Thus, there is merit in PG&E's elegant argument that its refusal to yield to Mr. Helmstetter's demand to supply him with data on the spill, which dared him to report a presumed violation to the city and county, encouraged his attempt to safeguard the environment. It therefore had the effect desired by the SWDA and TSCA, and was not retaliatory.

    Mr. Helmstetter's allegation of disparate treatment is also inadequate. PG&E correctly argues that Mr. Helmstetter's treatment was not disparate with that of employees involved in the clean-up. To allege disparity in treatment, Mr. Helmstetter must allege that he

was similarly situated with other employees who were differently treated. The allegation is that Complainant was not in the clean-up crew and indeed was employed in a different department which had no role in the clean-up.

    Accordingly, I find that the facts alleged by Complainant do not state a cause of action under TSCA or SWDA. Therefore, PG&E's motion is granted, and this complaint is dismissed.

       ALEXANDER KARST
       Administrative Law Judge

San Francisco, California

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