The Secretary remanded this case under the employee protection provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. app. § 2305 (1988), to the ALJ to make a finding whether Complainant Ricky Brown had a "reasonable apprehension of serious injury to himself or the public," 49 U.S.C. §2305(b), when he refused to transport and pump out a drum of hazardous material. The Secretary held that refusal to drive based on a reasonable apprehension that the task of pumping the hazardous material, which was one of Brown's duties as a driver, would cause impairment to Brown's ability safely to operate a motor vehicle was a protected activity under the STAA. The ALJ found on remand that Brown's refusal of the assignment was not based on a reasonable apprehension of serious injury and recommended that this complaint be dismissed. Recommended Decision and Order on Remand at 11.

    The facts in this case are set forth in the Secretary's Decision and Remand Order, and in the ALJ's first Recommended Decision at 4-14. Briefly, Brown refused an assignment to transport and pump out a drum of hazardous material on March 30, 1994 because he had suffered shortness of breath and dizziness when he partially pumped out the same drum on February 28, 1994. On that occasion, Brown had disconnected the hose from the transport drum to the base container before he had completely pumped out the hazardous material because he did not have enough nitrogen to pump out the drum completely. Brown was exposed to the fumes from a small spill of the hazardous material which flowed out of the hose. T (Transcript of hearing) 506-511.

    We do not question Brown's good faith belief that he could again suffer exposure to the hazardous substance if he followed Wilson Trucking's order to transport and pump out the drum. But the STAA requires that

[t]he unsafe condition causing the employee's apprehension of injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition."

   In other words, the employee's belief must be objectively reasonable, not simply subjectively made in good faith. Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76, 82 (2d Cir. 1994). In addition, the Act requires that "[i]n order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."