Robert E. Tyndall,            
               Complainant,   
                              
          v.                                                      Case No. 93-CAA-6
                              
U.S. Environmental Protection 
Agency,                       
               Respondent.  


RECOMMENDED ORDER GRANTING RESPONDENT'S SECOND MOTION TO
DISMISS
                     
             Complainant, Robert E. Tyndall, is a special agent, GS-
1811-13, Procurement Fraud Division, Office of Investigations,
Office of Inspector General ("OIG"), Environmental Protection
Agency ("EPA").  Complainant contends that he engaged in
protected whistleblower activity by reporting alleged official
misconduct, and alleged wrongful interference by EPA-OIG
management during an official investigation assigned to
Complainant.  He asserts that in retaliation for his alleged
protected whistleblowing activities, EPA-OIG subjected him to
threats, intimidation, harassment, physical assaults, an
involuntary transfer, and the withholding of earned overtime pay
and travel expenses.  He seeks relief under the employee
protection provisions of the Clean Air Act ("CAA"), 42 U.S.C.
§ 7622 and the Department of Labor regulations at 29 C.F.R.
§ 24.

     In July 1990, EPA-OIG intitiated an investigation of Mr.
Rickie A. Linthurst, an EPA employee.  Criminal prosecution was
declined in September 1991 by the United States Attorney for the
District of Columbia.  In October 1991, the OIG office in Dallas,
Texas began an administrative investigation of Mr. Linthurst and
Kilkelly Environmental Associates (KEA), an EPA contractor.[1]  
Complainant was assigned to conduct this investigation.  The
investigation disclosed alleged conflicts of interest by EPA
employees and improprieties in the awarding and administration of
an EPA contract, in that Mr. Linthurst awarded the contract to a
company that employed his live-in companion as the contract
project officer.  Subsequently, OIG investigated allegations 
[PAGE 2]
against KEA, but the United States Attorney for the Middle
District of North Carolina declined prosecution on April 19,
1994.  

     The graveman of the instant complaint concerns alleged
irregularities in the case assignment to Mr. Tyndall, as well as
the actions of senior OIG personnel in the investigative review
process.

     Respondent, United States Environmental Protection Agency,
has filed a Second Motion to Dismiss on the grounds that
Complainant's allegations do not constitute activity subject to
42 U.S.C. § 7622(a)(3).[2]   Respondent further notes that
Complainant has not alleged that the investigation disclosed any
violation of the CAA, any EPA failure to enforce the objectives
of the CAA, or any failure on the part of KEA to conduct the work
it was contracted to perform. 

     Complainant, who was previously proceeding pro se but
is now assisted by counsel, argues that he was "on the trail of a
major contracting fraud and organizational conflict of interest
involving selection of and doing business with a contractor doing
computer modelling and environmental research for EPA. . . ."[3]  
Complainant contends that this contractor had a long history of
performing this kind of work for coal-burning utilities opposed
to acid rain legislation, and the selection process for the acid
rain research was "wired."
     
     Regardless of the outcome of the criminal and administrative
inquiries made by EPA and the Justice Department, I find that
Complainant's allegations that his investigation of fraud and
organizational conflict of interest involving EPA research
contracts was frustrated, affords no basis for CAA relief because
such allegations are not related to environmental safety or
violations of the CAA.  See Devareux v. Wyoming Association of
Rural Water, 93-ERA-18 (Sec'y Dec., October 1, 1993).  The
"Whistleblower" provisions of environmental statutes are designed
to "protect employees from retaliation for protected activities
such as complaining, testifying, or commencing proceedings
against an employer for a violation of one the these federal
statutes." Id.  In this case there is no allegation that
Complainant engaged in protected activity under the CAA or any
other statutes enumerated in Section 24.1.  For this reason, I
find that any difficulties Complainant may have had with his
agency do not constitute a violation of the whistleblower
provision under the CAA.[4]   The only connection between this
investigation and the CAA is the fact that the contract under
investigation had to do with acid rain research, and I find that 
[PAGE 3]
this connection is too tenuous to establish coverage under the
whistleblower provision of the CAA.[5]   To interpret the
provision that broadly would not further the purpose of
"prohibit[ing] employers from discriminating, discharging, or
otherwise penaliz[ing] their employees who initiate law suits
under the Clean Air Act, testify in public hearings or court
proceedings against employees in air pollution cases, or
otherwise involve themselves in such administrative or legal
proceedings." H.R. Rep. No. 294, 95th Cong., 1st Sess. 325 (1977),
reprinted in 1977 U.S.C.C.A.N. 1077, 1404 (citing H.217).

                         RECOMMENDED ORDER

     It is recommended that the Secretary dismiss the complaint
in its entirety.



                                         ROBERT G. MAHONY
                                        Administrative Law Judge


[ENDNOTES]
                
[1]   In June of 1991, Mr. Linthurst had been officially demoted
from his Senior Executive Service position. 

[2]  The relevant portion of the statute states:  

     No Employer may discharge any employee or otherwise
     discriminate against any employee with respect to his
     compensation, terms, conditions, or privileges of
     employment because the employee (or any person acting
     pursuant to a request of the employee) -- (3) assisted or
     participated or is about to assist or participate in any
     manner in such a proceeding or in any other action to
     carry out the purposes of this Act.

[3]  Complainant's Response to Respondent Environmental Protection
Agency, Office of Inspector General's Second Motion to Dismiss at
1 (Sept. 19, 1994).

[4]   In another CAA case, the Secretary held that the record
failed to establish CAA coverage because the CAA seeks to prevent
and control air pollution by regulating emissions into the
atmosphere at particular sources, and a complaint about workplace
air which is not emitted into the external atmosphere is not
covered under the CAA. See Johnson, et al. v. Old Dominion
Security, 86-CAA-3 (Sec'y Dec., May 29, 1991).    

[5]   The Secretary has held that "an employee's complainst must be
'grounded in conditions constitutuing reasonably perceived
violations' of the environmenal act" to be afforded whistleblower
protection. See Crosby v. Hughes Aircraft Co., 85-TSC-2
(Sec'y Dec., Aug. 17, 1993).  An employee's befief that "'the
environment may be negatively impacted by the employer conduct'" is
not sufficient. Id.