[Page 4]
But the standard for admitting these documents is not when Lewis had access to them, but whether they were available while the record was still open. Lewis offers no evidence to show that he could not have obtained the documents prior to April 2003. We note, moreover, that the attorney who filed the Georgia lawsuits in 1998 and 2001, and subsequently gave Lewis access to documents in those cases, testified on Lewis's behalf in this case about discussing with Lewis his potential as an expert witness in the Georgia cases.
And even if this evidence was not readily available, none of it is material to the issue of whether EPA took any adverse employment action against Lewis. Nor does the proffered evidence prove or tend to prove that EPA retaliated against him because of his protected activity in publicizing the human health and safety risks of sewage sludge fertilization. Therefore, admitting this evidence would not change the outcome of this case.
Conclusion
Lewis did not show that the proffered evidence was new or material. Therefore, we DENY his motion.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The Clean Air Act, 42 U.S.C.A. § 7622(a) (CAA) (West 2003); the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (SDWA) (West 2003); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610(a) (CERCLA) (West 2005); the Toxic Substances Control Act, 15 U.S.C.A. § 622(a) (TSCA) (West 1998); the Federal Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a)(FWPPCA) (West 2001); and the Solid Waste Disposal Act, 42 U.S.C.A. § 6971(a) (SWDA) (West 2001). Regulations implementing these statutes are found at 29 C.F.R. Part 24 (2006).
2 Lewis v. U.S. Env'tl Prot. Agency, ARB No. 04-117, ALJ Nos. 03-CAA-005, 006 (ARB Mar. 30, 2007).
3 Motion to Reopen at 1-3.
4 29 C.F.R. Part 18 (2007). Williams v. Lockheed Martin Energy Sys., Inc., ARB No. 98-059, ALJ No. 95-CAA-010, slip op. at 6-7 (ARB Jan. 31, 2001).
5 29 C.F.R. §18.54(c).
6 Foley v. Boston Edison Co. ARB No. 99-022, ALJ No. 97-ERA-056, slip op. at 5 n.4 (ARB Jan. 31, 2001), citing Wright v. U.S. Postal Serv., 183 F.3d 1328, 1332 (Fed. Cir. 1999).
7 Motion, Exhibit 1.
8 Hearing Transcript at 1029-68.