This means that Slavin was not an applicant when he suffered the alleged discrimination. And Slavin has given us no authority that CERCLA covers "perceived potential applicants," as he claims to have been. Therefore, we find that Slavin was not an employee, or an applicant, or a covered "potential applicant" when he suffered the alleged discrimination. Accordingly, we DISMISS Slavin's complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 42 U.S.C.A. § 9610 (West 2005).
2 See U.S. v. Bestfoods, 524 U.S. 51 (1998).
3 29 C.F.R. § 24.3(a) (2007). CERCLA's implementing regulations, found at 29 C.F.R. Part 24, have been amended since Slavin filed the complaint in this case. 72 Fed. Reg. 44,956 (Aug. 10, 2007). It is unnecessary for us to determine whether the amendments apply to Slavin's complaint because they are not implicated by the issue presented and thus, even if the amendments were applicable to this complaint, they would not affect our decision.
4 Complainant's Response to Pre-Hearing Order #1.
5 Ed Slavin v. City of St. Augustine, Florida/William B. Harriss/James Patrick Wilson/Joseph Boles/Susan Burk/Donald Crichlow/Errol Jones, 2006-CER-004 (ALJ Sept. 19, 2006).
6 See 29 C.F.R. § 24.8 and Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases under the statutes listed in 29 C.F.R. § 24.1(a), among which is CERCLA).
7 Complainant's Opening Brief at 2-3. See Samodurov v. Gen. Physics Corp., No. 1989-ERA-020, slip op. at 3 (Sec'y Nov. 16, 1993) (employee protection section of Energy Reorganization Act, 42 U.S.C.A. § 5851, covers applicants); Chase v. Buncombe County, N.C., 1985-SWD-004, slip op. at 3 (Sec'y Nov. 3, 1986) (under analogous employee protection provision of Solid Waste Disposal Act, 42 U.S.C.A. § 6871).
8 Respondent's Reply Brief at 8. We refused to accept Slavin's Rebuttal Brief because he did not file it according to the briefing schedule and did not explain why he did not file on time. January 31, 2007 Order Denying Complainant's Motion to File Instanter.