DATE:     April 4, 1996

CASE NO:  95-CAA-00007

In the Matter of

BRIAN L. HOLTZCLAW

          Complainant

     v.

COMMONWEALTH OF KENTUCKY NATURAL
RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET

          Respondent

COALITION FOR HEALTH CONCERN
JUSTICE RESOURCE CENTER
OHIO RIVER VALLEY ENVIRONMENTAL COALITION
SOUTHERN ORGANIZING COMMITTEE FOR 
     ECONOMIC AND SOCIAL JUSTICE

          Intervenors

Appearances:

     Stephen M. Kohn, Esq.
     David K. Colapinto, Esq.
     Veronica Villanueva, Esq.
          For Complainant

     David Tachau, Esq.
     Brenda J. Runner, Esq.
          For Respondent

     Corrinne Whitehead
     Louis Coleman
     Laura Forman
     Anne Braden
          For Intervenors

Before:   Ainsworth H. Brown

[PAGE 2]
          Administrative Law Judge


               RECOMMENDED DECISION AND ORDER

     This case arises out of a complaint, filed by Brian L.
Holtzclaw (hereinafter "Complainant"), alleging violations of the
employee protection provisions of the following statutes: the
Clean Air Act, 42 U.S.C. section 7622; the Safe Drinking Water
Act, 42 U.S.C. section 300j-9; the Solid Waste Disposal Act, 42
U.S.C. section 69713; the Water Pollution Control Act, 33 U.S.C.
section 1367; the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. section 9610; and the
Toxic Substances Control Act, 15 U.S.C. section 2622.  These six
acts contain similarly worded employee protection provisions (or
"whistleblower provisions"), prohibiting employers from
discharging, discriminating, or otherwise penalizing their
employees who initiate suits, testify against their employer, or
otherwise involve themselves in administrative or legal
proceedings under the acts.

     Complainant worked for the Commonwealth of Kentucky Natural
Resources and Environmental Protection Cabinet (hereinafter
"KDEP") pursuant to an Intergovernmental Personnel Act agreement,
or "IPA" (described in greater detail below) with the United
States Environmental Protection Agency (hereinafter "EPA").  His
complaint alleges that he was:

     subjected to harassment and other retaliatory acts by
     my employers, the U.S. EPA[1]  and the Kentucky DEP. 
     Because of my whistleblowing activities, I have been
     subjected to a "hostile work environment." 
     Additionally, on November 18, 1994, I was informed by
     the U.S. EPA that the Kentucky DEP would not be
     renewing my employment contract on December 22, 1994.

     A hearing was held before me in Louisville, Kentucky from
November 2 through November 8, 1995, at which time the parties
were given full opportunity to present evidence and argument as
provided in 29 C.F.R. Part 24.  The record was left open after
the hearing to permit the submission of post-hearing briefs and
certain deposition testimony.  Complainant and Respondent each
submitted 2 post-hearing briefs[2] 

                               ISSUES

     The issues to be resolved are:

[PAGE 3]

          1.   Whether Complainant was subjected to a "hostile
               work environment" in violation of the employee
               protection provisions of the Clean Air Act, the
               Safe Drinking Water Act, the Solid waste Disposal
               Act, the Water Pollution Control Act, the
               Comprehensive Environmental Response,
               Compensation, and Liability Act, and/or the Toxic
               Substances Control Act; and

          2.   Whether Respondent's decision not to renew
               Complainant's employment contract violated the
               employee protection provisions of the Clean Air
               Act, the Safe Drinking Water Act, the Solid waste
               Disposal Act, the Water Pollution Control Act, the
               Comprehensive Environmental Response,
               Compensation, and Liability Act, and/or the Toxic
               Substances Control Act.

           FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.  FACTUAL SUMMARY

     A.  Background

     Complainant began working as an environmental engineer for
U.S. EPA Region 4 in Atlanta, Georgia, on June 5, 1988.  (Cx 1.) 
Prior to coming to the EPA, Claimant worked as a quality engineer
for Union Carbide in Columbus, Georgia.  (Tr at 548.)  He also
participated in a cooperative education program while studying
engineering at the Georgia Institute of Technology from 1979-
1983, and worked for Air Products and Chemicals and Monsanto
through that program.  (Tr at 547.)  Complainant was supervised
at the EPA by H. Kirk Lucius, Branch Chief of the Environmental
Engineering Division, at all times relevant herein.  (Tr at 552.)

     In 1987, Kentucky initiated studies to analyze the
cumulative impacts of industries on the environments and public
health in three geographic areas within the state: the Calvert
city area in western Kentucky; the Ashland area in eastern
Kentucky; and southwest Jefferson County, where Louisville is
located.  These studies were referred to as "geographic
initiatives."  The geographic initiatives led to KDEP's
involvement as the lead agency in two larger community-based
geographic initiatives: the "Tri-State Geographic Initiative"
(hereinafter "TSI") and the "Calvert City Initiative"
(hereinafter "CCI").  


[PAGE 4]
     These initiatives forged a partnership between Federal,
State, and local agencies, as well as private industry and local
citizens, in order to further the goals of environmental
management.

     The Tri-State Initiative involved a 6-county area along the
Ohio River Valley, where Kentucky, Ohio and West Virginia meet. 
The area has high rates of pollution released by the industries
located along the Ohio River.  Included among the governmental
agencies involved in the TSI are: KDEP; Ohio Environmental
Protection Agency; West Virginia Division of Environmental
Protection; United States Environmental Protection Agency Regions
3, 4, and 5 (Philadelphia, Atlanta, and Chicago, respectively);
Ohio River Valley Water Sanitation Commission (ORSANCO);
Portsmouth (Ohio) Local Air Agency; Agency for Toxics Substances
and Disease Registry (ATSDR); Greenup and Boyd Counties in
Kentucky; Wayne and Cabell Counties in West Virginia; Lawrence
and Scioto Counties in Ohio; and the cities of Ashland, Kentucky,
Huntington, West Virginia, and Ironton, Ohio.

     The Calvert City Initiative involves a smaller area centered
around a group of approximately 12 chemical plants in an
industrial complex near the Tennessee River.  CCI also involved
several participating Departments and Agencies, including: KDEP
Division of Water, KDEP Division of Air Quality, KDEP Division of
Waste Management, KDEP Paducah Field Office, GIS Branch, EPA
Region 4, ATSDR, U.S. Geological Survey, Murray State
University's Mid-Atlantic Remote-Sensing Center, ORSANCO, and the
Tennessee Valley Authority.  (Cx 48.)

     KDEP's Deputy Commissioner, Russell Barnett, had primary
responsibility for the Tri-State and Calvert City Initiatives. 
Dr. David Morgan originally served as the Initiatives'
Coordinator.  Dr. Morgan had drafted a study plan and outlined an
organizational structure for TSI, including a "Citizens Advisory
Group," technical teams, and a "Technical Steering Committee." 
(Rx 68.)  Dr. Morgan accepted new responsibilities within KDEP in
late 1992.

     At the time of Dr. Morgan's promotion, Kentucky was under a
"very stringent hiring freeze" on filling state positions.  (Tr
at 275-276.)  Therefore Barnett suggested filling the vacancy
through an "Intergovernmental Personnel Act" agreement, or "IPA." 
An IPA is an agreement under which a federal agency "loans" an
employee to a state agency, or vice-versa.  The maximum term for
which a federal employee may serve under an IPA during his career
is four years.  (Tr at 61.)  Barnett was familiar with IPA
arrangements, as he himself had originally come to work for KDEP
pursuant to an IPA, before joining as a permanent employee.  (Tr
at 59.)

[PAGE 5]

     Barnett contacted Joe Franzmathes, Director, EPA
Region 4 Waste Management Division, who suggested
Complainant for the position.  Complainant was interviewed by
Barnett, and Kentucky subsequently entered an IPA with the EPA,
under which Complainant began serving as "Geographic Initiatives
- Project Manager," (Cx 3[3] ), for a two-year period beginning
December 21, 1992.  The IPA contained no provision for an
extension of the two-year term, and Kentucky retained the
discretion to terminate the IPA at any time.  (Id.)  Under
the IPA, 49% of Complainant's salary was paid by the EPA and 51%
was paid by the State of Kentucky.  Complainant received a bonus
which was paid entirely by the State of Kentucky, and his
benefits were paid entirely by the EPA.  (Tr at 64.)

     B.  The "Dr. Stockwell" Controversy

     The TSI's Technical Steering Committee determined to engage
in a "Risk Screening" project in order to determine where to
place a finite number of air monitoring stations, which Kentucky
had purchased for over $300,000.  (Tr at 1309.)  Risk Screening
was necessary not only in order to pinpoint the locations within
the 2300 square mile tri-state area to place the air monitoring
stations, but also to prioritize area generally for pollution
prevention and other risk reduction efforts.  (Tr at 595.)  The
area was broken down into clusters, consisting of multiple
industries in a particular location.  (Tr at 178.)  Each cluster
was to be rated based upon a number of environmental factors,
depending on the particular risk-screening methodology employed.

     Several risk screening methods were proposed, but
Complainant determined to primarily employ the "TIP" method[4] . 
Kentucky's chief risk assessment scientist and team leader of the
risk screening project, Dr. Albert Gene Westerman, recommended
that other methodologies be included[5] .

     Complainant was convinced; however, that the TIP method was
most appropriate, and he had less faith in the methods proposed
by Dr. Westerman.  (Tr at 219.)  The TIP methodology was
developed by Dr. John Stockwell, a Public Health Service
physician on assignment with the EPA.  (Tr at 219.)  Complainant
had worked with Dr. Stockwell for 3-4 months while at EPA Region
4.  In addition to developing the TIP method, Dr. Stockwell,
along with EPA's Jerry Sorenson, had performed "groundbreaking
work" incorporating "GIS," a computer technology used to map
environmental information to assist with visual presentation of
such information for analysis.  (Tr at 594.)


[PAGE 6]
     Complainant had become familiar with Dr. Stockwell's work
regarding the TIP method in late 1992, and began efforts to
obtain Dr. Stockwell's participation and collaboration in the
TSI's risk screening efforts in July, 1993.  (Tr at 602.) 
Complainant had scheduled a Risk Analysis Conference for August
27, 1993, and sought Dr. Stockwell's participation at that
conference.  With the consent of the Risk Analysis Team and the
GIS Team, Complainant contacted Jewell Harper, Chief of the Air
Enforcement Branch of EPA Region 4, who agreed that Dr. Stockwell
would attend the conference.  (Cx 10; Tr at 605.)  Barnett and
Logan also supported Complainant's request for Dr. Stockwell's
participation at that time, (Cx 9), and Barnett in fact offered
to have KDEP pay for Dr. Stockwell's travel expenses in attending
the August 27 conference, (Tr at 1296-1297).  Complainant was
aware, at this time, of a grievance which Dr. Stockwell was
involved in with the EPA; however, Barnett had no knowledge of
the situation.

     Approximately one week before the Risk Analysis Conference,
Harper telephoned Complainant and informed him that Dr. Stockwell
would not be attending.  (Tr at 604.)  Dr. Stockwell assisted
Complainant in selecting a replacement, who was flown in from
Kansas City (EPA Region 7) at EPA Region 4's expense.  The
replacement was not a toxicologist, and Complainant did not feel
that she had a sufficient "appreciation of ... the array of human
health kind of issues and emphasis ... needed in the region ...
[and] it seemed like she did not have a lot of experience in risk
screening."  (Tr at 606.)  Therefore, Claimant did not feel that
she was an effective substitute for Dr. Stockwell's
participation.  (Id.)

     Dr. Stockwell continued to assist Complainant through phone
consultations, regarding the TSI through October, 1993.  These
consultations continued despite an alleged request from
Complainant's second-line EPA supervisor, Bill Patton, on August
23, 1993, that he stop calling Dr. Stockwell.  (Tr at 919.) 
Complainant continued to communicate with Dr. Stockwell from Dr.
Stockwell's home phone, rather than through the EPA.  (Tr at
621.)

     Barnett was apprised of Dr. Stockwell's grievance situation
with the EPA in October, 1993.  (Rx 9.)  Barnett claims that he
expressly directed Complainant to stop requesting Dr. Stockwell's
participation at this point, however Holtzclaw denies that he was
ever told to stop attempting to secure Dr. Stockwell's
participation prior to January, 1994.  (Tr at 619.)

     Complainant became concerned about "escalating interference
from EPA Region IV managers who, apparently, did not share (or 
[PAGE 7]
actively opposed) the use of Dr. Stockwell's environmental public
health concerns."  (ClBr at 22.)  On his own initiative, he thus
prepared a 16-page document he titled "The Dr. Stockwell Brief"
(hereinafter "the Stockwell Brief").  (Rx 58.)  An "Executive
Summary" portion of the Stockwell Brief explains:

     The purpose here is to give KDEP management knowledge
     of specific unsuccessful efforts to secure this
     Regional Human Health Effects Officer on behalf of the
     Tri-State Geographic Initiative.  Kentucky's management
     will form their own evaluation of this information
     presented herein and decide on the next course of
     action.  It is hoped that the U.S. EPA Region IV APTMD
     will reconsider this important matter of allowing Dr.
     Stockwell to travel and consult with the KDEP.

(Id. at 3.)  In addition, the cover of the brief contains the
following "credits:"

     Prepared by: The Kentucky Department for Environmental
     Protection (KDEP); Commissioner's office

     Prepared for: Russ Barnett, Deputy Commissioner, KDEP
     and Phillip Shepherd, Secretary, Cabinet for Natural
     Resources and Environmental Protection

(Id at 1.)  Complainant's administrative assistant, Aaron Keatley,
claimed that Complainant spent approximately 70% of his time during
the fall of 1993 on the Stockwell matter. (Tr at 1099.)

     On January 24, 1994, Complainant provided Barnett with a copy
of the Stockwell Brief.  (Cx 28.)  He also provided two versions of
a draft letter written for Shepherd to sign and send to John H.
Hankinson, Jr., Regional Administrator of EPA Region 4. 
Complainant referred to the first letter as "the hardcore version,"
which took a strong tone in requesting Dr. Stockwell's
participation with the Tri-State Initiative.  The second was
referred to as "the softcore version," and it took a milder tone in
making the request.  (Cx 26.)  The cover sheet which Complainant
provided with the letters indicated that Complainant wanted to send
the letter as soon as possible, "if you are in agreement." 
(Id.)

     The next day, January 25, 1994, Complainant sent a copy of the
Stockwell Brief (federal express) to Dr. Stockwell, under cover
which read: "This report was prepared as directed by my management
here @ KDEP ... Yours to use if needed."  (Rx 58.)


[PAGE 8]
     Later that same day, on January 25, 1994, Complainant met with
Barnett to discuss the Stockwell Brief and the suggested letters. 
Complainant testified that Barnett was supportive of his actions,
but told Complainant that he would not officially back him up, and
that he would be "on his own" if he sent the brief.  (Tr at 621.) 
Barnett maintains that he told Complainant not to distribute the
brief or the letters, because Dr. Stockwell's grievance was an
internal EPA personnel matter.  (Tr at 1301-1302.)  Complainant did
not inform Barnett, at that time, that he had already sent a copy
of the Brief to Dr. Stockwell.

     After that meeting, Barnett phoned Hankinson at EPA and told
him that Complainant would be available to talk with federal
investigators about Dr. Stockwell.  (Tr at 1299.)  Barnett then
prepared a memorandum instructing Complainant not to send either of
the draft letters to the EPA and to "hold off on the phone calls
asking for Stockwell."  (Cx 29; Rx 12.)

     Based upon the January 25, 1994 meeting, Complainant contacted
Dr. Stockwell the next day, on January 26, 1995, and instructed Dr.
Stockwell to contact  him before "taking any action" with respect
to the brief.  (Cx 28.)  Complainant had a phone conversation with
Dr. Stockwell at his home, apparently later that same day, in which
Complainant again told Dr. Stockwell not to distribute the brief
within the EPA and to give it directly to the Inspector General's
office[6] .  (Tr at 637.)  Dr. Stockwell subsequently sent a copy
of the brief to the Inspector General's office on January 27, 1994.

     On January 31, 1994, an EPA employee discovered some portion
of the Stockwell Brief at a copy machine, and noted that it
appeared to be an official KDEP document and that it was rather
critical of the EPA.  The employee gave the document to Mr. Bruce
Perry Miller, EPA Region 4's Deputy Director, Air Pesticides, and
Toxic Management Division, Dr. Stockwell's supervisor.  Miller
telefaxed a copy of the brief to Phillip Shepherd, KDEP's
Commissioner, who had no prior knowledge of the brief's existence. 
(Tr at 285-289.)

     Shepherd then asked Barnett about the Stockwell Brief, either
that same afternoon or the next morning.  (Id.)  Barnett met with
Complainant on February 1, 1994 and informed Complainant that the
Stockwell Brief had been circulated throughout the EPA.  (Tr at
649.)  Barnett told Complainant that he was preparing a memorandum
to Shepherd explaining the circumstances surrounding the Stockwell
Brief, which he ultimately prepared later that day.  (Rx 10.)

     After meeting with Barnett, on February 1, 1994, Complainant 
[PAGE 9]
prepared a memorandum recounting the meetings between himself and
Barnett over the past week or so, regarding the Stockwell Brief. 
(Cx 32.)

     Complainant then went to see Shepherd, still on February 1,
1994, to inform him of the situation.  (Tr at 650.)  Shepherd
explained his concerns about the brief to Complainant.  (Tr at 289-
293.)  Shepherd explained that his fundamental concern was that
Complainant had circulated the document "under the auspices of
Kentucky state government ... [giving it] the color of an official
position on the part of Kentucky."  (Id.)  Shepherd explained that
he was also concerned about the tone of the document and its
reliance on rumor, innuendo and anonymous sources.  (Id.) 
Complainant offered to resign, but Shepherd responded that he
should just "do his job," focussing on the goals of the
initiatives.  (Tr at 299-300; Rx 3; Rx 10.)

     The next day, (Tr at 367), Shepherd received a phone call from
Mr. Mick Harrison, of the Government Accountability Project
("GAP").  Mr. Harrison referred to federal whistleblower protection
laws and warned Shepherd that Complainant was protected by those
laws. 

     On either late February 1, 1994 or February 2, 1994, Barnett
provided Complainant with a draft of the memorandum he was
preparing for Shepherd, outlining what he knew regarding the brief. 
Complainant suggested a few changes and returned the memo to
Barnett with his revisions and a note at the top, reading "Russ,
overall good job, fairly accurate."  (Rx 28.)  Later that day
Complainant contacted Harrison (of the Government Accountability
Project) to explain that he felt he was being judged and admonished
unfairly by Barnett and Shepherd, and felt that he might need
assistance.  (Tr at 660-661.)

     On February 9, 1994, Complainant conducted a telephone
conference with TSI's Technical Steering Committee, to "update the
situation."  (Tr at 662.)  Complainant read a prepared statement,
explaining that a "significant portion" of his time was
"preoccupied" with obtaining the services of Dr. Stockwell and that
this "unexpectedly demanding" endeavor "took time from other
aspects of managing the risk screening, air toxics, pollution
prevention, and surface water projects."  (Cx 33.)  He further
explained that:

     As an agent of the United States Government and the State
     of Kentucky, I have an obligation not only to uphold the
     constitution and federal and state statutes and 
[PAGE 10]
     regulations but also to disclose impediments to our common
     mission to protect human health and the environment.  I have
     made a decision to do the honorable and right thing and report
     my observations to federal investigators.  I have done this
     despite the real threat of retaliation from official sources
     who might be involved in misconduct, desire to cover for
     another's misconduct or simply be offended by my frank
     disclosures.  I hope you're still with me.

(Cx 33.)  Complainant, after obtaining consent from all
participants, had tape-recorded this conference call.  A copy of
the recording was later provided to Miller, at EPA Region 4, who
had Complainant's remarks transcribed.  (Cx 114 at 58.)

     On February 16, 1994 Complainant recorded a conversation
between himself and Barnett, wherein Barnett informed Complainant
of the phone call Shepherd received from Harrison.  (Tr at 666.)  

     The next day Complainant prepared a memorandum to Barnett,
requesting written guidelines outlining his orders regarding Dr.
Stockwell.  The memo continued:

     If you should issue a written order instructing me to
     drop my requests for Dr. Stockwell's assistance,
     understanding my position on Dr. Stockwell's unique
     ability to assist with my Risk Screening Project, I would
     not be insubordinate and disobey this direct order ... I
     am aware of my rights to appeal such an order and seek
     its reversal through the appropriate chain of command and
     through any oversight agency or legislative body
     established by law.

(Cx 39.)  Complainant provided copies of the memorandum to Logan,
Shepherd, Hankinson, Lucius, Harrison and Rick Condit (of GAP.) 
(Tr at 669.)  On February 18, 1994 Complainant presented a copy of
the memo to Barnett.  (Tr at 669.)

     Barnett told Complainant that he would require an observer on
all conference calls, would require an observer on every trip he
took, and all correspondence was to be reviewed and signed off by
himself.  Complainant surreptitiously tape recorded this
conversation with Barnett.  (Tr at 670.)  

     Complainant did not receive any response to his request for
written orders, and on March 10, 1994 he provided Barnett with a
"friendly reminder" of this request, in writing.  (Cx 40.)  The
memo also requested a copy of a letter which Shepherd had written
to Hankinson regarding the Stockwell Brief.  Barnett eventually 
[PAGE 11]
left a copy of the letter in Complainant's box, along with a copy
of the February 1, 1994 letter he had written apprising Shepherd of
what he knew of the Stockwell situation.  (Cx 38.)

     In late February, 1994, Claimant sent a "One Year Report Card"
to participants of the TSI, the technical assistance teams, the
Citizens' Review Committee and the Technical Steering Committee. 
(Rx 48.)  The Report Card requested an evaluation of Complainant's
performance and explained that the information would be shared with
KDEP management and EPA Region 4, and Complainant provided an
outline of "possible subjects" for the responses to cover. 
Complainant also included suggested language: "assortment, rapport,
integrity, intelligence, innovation, leadership, scientific
approach, dedication to Initiative, work ethic, dedication to
mission for improving public health & environment, professionalism,
commitment to public service, etc."  (Id.)  

     In a similar undated memorandum (addressed to "Connie and
Jackie"), Claimant provided even more suggested language,
praising himself, to be used in letters of "review", including: 

     "your dedication to public outreach ... has been
     invaluable to SOC and the afflicted peoples of
     environmental racism"; 

     "were it not for you + adjective ... and your status as
     a dedicated state and federal employee, our grassroots
     organization would not have benefitted"; 

     "please say a few good words about me as a public servant
     ... here's some choices: pollution prevention emphasis,
     fairness, integrity, conscience, partnership, leadership,
     restoring public trust, environmental education,
     encouragement of diverse viewpoints, blah, blah your
     choice!!!!!!!!!!!!!!!!!!"; and

     "SOC appreciate[s] you and ... hope your management (Mr.
     Russ Barnett and Phillip Shepherd) within the [KDEP]
     appreciates and recognizes your value.  Your good works
     behind the scenes has helped propelled this national
     issue ahead, at a faster pace than it would have without
     you ... serve the public with ... talent, etc."  

(Rx 52.)  In late April, 1994, Complainant compiled "some
highlights" of the comments he received, into a document he titled
"Recent Reviews of Tri-State Geographic Initiative (TGI) and the
Coordinator."  (Cx 44.)


[PAGE 12]
     C.  Complainant's EPCRA Letter

     During the Summer, 1993, Complainant and Barnett met with John
Deutsch, at EPA Region 4.  Deutsch is responsible for implementing
the federal Emergency Planning and Community Right to Know Act
("EPCRA").  (Tr at 154.)  EPCRA provides for an opportunity for an
industry to reduce a proposed fine by undertaking a Supplemental
Environmental Project, or "SEP."  (Tr at 155-156.)  EPA Region 4
was conducting negotiations with Ashland Oil, regarding an
enforcement action for violations which occurred in Ohio and West
Virginia.  Kentucky had no official involvement in the matter, as
the matter involved no reported violations in Kentucky. (Tr at
157.)

     On April 21, 1994, Complainant wrote a letter to Mr. Deutsch,
stating: "This is a request to become formally involved in your
[Ashland Oil] negotiation process."  (Cx 45.)  Complainant was
concerned that the SEPs being considered were not "substantial
enough to effect enough positive change."  (Tr at 697.)  Mr.
Deutsch and an EPA attorney phoned Barnett to find out why Kentucky
wanted to intervene "formally," since no violations in Kentucky
were involved.  Barnett explained to Deutsch that Complainant had
"mis-spoken" and that Kentucky had no official interest in the
matter.  (Tr at 158.)

     D.  May 13, 1994 Memorandum

     On May 13, 1994, Barnett met with Complainant to discuss a
memorandum which Barnett had prepared that day.  (Cx 51.)  The two
discussed the entire memorandum, point by point.  (Tr at 739.)

     The memo noted "critical environmental issues" which Barnett
claimed Complainant had not addressed, jeopardizing grant monies
and the goals of these projects.  (Cx 51 at 1-2; Tr at 1304-1306.) 
Barnett thus requested a "specific work plan of tasks that need to
be accomplished, a schedule on when the tasks are to be completed,
and a budget to indicate what resources are needed to continue the
studies as well as account for resources expended to date."  (Id.) 
The memo also addressed Complainant's alleged abuse of overnight
delivery services, and instructed Complainant to reimburse Kentucky
$76.00 for these charges, and to have any future overnight
deliveries prepared by another employee.  (Cx 51 at 3.)  The memo
also addressed Complainant's "excessive amount of time spent on the
telephone," and instructs Claimant to "keep a log of all of [his]
calls ... [and to] limit [his] calls to extension at 120 or if they
are personal calls to the pay telephone in the lobby."  The memo
also addressed Complainant's alleged failure to comply with 
[PAGE 13]
standard travel protocols.  (Cx 51 at 4.)  Finally, the memo
explained Barnett's concerns over Complainant's request to become
"formally involved" in the EPCRA matter.  Complainant felt that
every criticism in the memo was unfounded and that the memo
generally mischaracterized the work he had done. 

     On May 28, 1994, Complainant prepared a memorandum to Barnett
to verify that the May 13, 1994 memo was personal, and to verify
that it would not be placed in his personnel file and would not be
not related to any KDEP or EPA employees or to any other persons. 
(Cx 55.)  Complainant requested written notification no later than
June 2, if his understanding regarding the May 15, 1994 memo was
incorrect.  He provided the number where he could be contacted in
Sweden for any such response, as he was going there for vacation
from May 31 through June 17, 1994.  Complainant explained that he
would consider that his understanding was accurate "If I don't hear
from you by this time."  (Id.)

     E.  Denial of Computer Equipment and Employee Assistant

     During mid-July, 1994, Complainant presented Barnett with a
draft of a letter to Kirk Lucius requesting that Complainant be
supplied with a more powerful computer.  (Tr at 1341-1343.) 
Barnett asked Complainant to hold off on his request,and asked a
staff member to perform a "needs assessment" to determine if the
request was truly justified.  Complainant subsequently informed her
that the matter was taken care of and that she need not get
involved, and Barnett thus never received the assessment.  (Id.) 
On September 18, 1994, Complainant sent his own letter to Lucius,
formally requesting the computer upgrade.  Mr. Lucius discussed
Complainant's request with Harold Key who works in the "information
management unit."  Mr. Key told Lucius that Complainant's request
could not be met, and Lucius discussed an alternative arrangement
with Complainant, whereby Complainant could alter his work hours
and make use of a computer already in the office.  (Cx 110 at 116-
117.)

     Also in mid-July, 1994, Complainant met with Shepherd and
Barnett to request authorization to hire a summer employee. 
Complainant had previously worked with an assistant, Aaron Keatley,
from July through December, 1993.  This request was denied.  (Rx
32.)

     F.  The "NEPA" Report

     Complainant authored a report, spanning 83 pages, titled
"Proposal to invoke the National Environmental Policy Act" dated 
[PAGE 14]
November 15, 1994.  (Rx 106.)  The report's stated purpose is to
"request that the U.S. Environmental Protection Agency ... Region
III and other Federal agencies invoke the National Environmental
Policy Act (NEPA) and on behalf of the proposed action, formally
begin the process of performing an Environmental Assessment (EA)
and an Environmental Impact Statement (EIS)."  (Id. at 8.)  The
"proposed action" to which the report refers is "Construction and
Operation of Huntsman Chemical Corporation Facilities, Neal, Wayne
County, WV."  (Id. (cover))

     On November 10, 1994, Barnett met with Complainant to explain
his concerns he had about the report.  Barnett reminded Complainant
that his role as coordinator for TSI was to bring about a consensus
among the Steering Committee, rather than take unilateral action. 
He pointed out that the West Virginia officials on the committee
had not made any decision to request that NEPA be invoked, and
Barnett claims that Complainant in fact indicated that West
Virginia did not support NEPA invocation.  Barnett thus instructed
Complainant to consult the Steering Committee before distributing
the draft of the report, and Barnett testified that Complainant
agreed that "I had made some good points and that he would go back
and confer with members of the Steering Committee, and who I was
particularly concerned about is making sure that West Virginia
concurred in this action to send a report."  (Tr at 1354.) 
Nonetheless, the report appeared in a Charleston West Virginia
newspaper before West Virginia received a copy for review,
(Tr at 1420-1422), and Complainant released a copy of the draft to
members of the Citizens Advisory Committee, in addition to the
Steering Committee.  (Tr at 1356-1357.)

     The Huntsman Chemical Plant was never built, and Complainant
in fact testified that he had no knowledge as to whether the plans
to consider its construction were ever even finalized.  (Tr at
797.)

     During the summer of 1994, Barnett told Franzmathes
"unofficially" that he anticipated that Kentucky would not request
that Complainant's IPA be renewed, and that Franzmathes should
begin looking for a position for Complainant.  In October, 1994, at
a conference in Bailouts, Mississippi, Barnett told Franzmathes
that the decision not to renew the IPA was official because KDEP
had decided to "institutionalize" the position, by creating a
permanent merit system position to ensure continued support for the
Geographic Initiatives.  Franzmathes informed Complainant that his
IPA was not going to be renewed on November 18, 1994.  (Tr at
1335.)  At that time, Franzmathes discussed an opportunity to work
on a project, based out of Atlanta, Georgia, providing "technical 
[PAGE 15]
assistance to developing countries in how to dispose of solid
waste."  (Cx 111 at 77.)

II.  ANALYSIS

     A.  PROTECTED ACTIVITY

     Complainant alleges that his IPA was not renewed and that he
was subjected to a hostile work environment due to his protected
activities.  Specifically, Complainant alleges that he engaged in
protected activity when he: (1) provided EPA and KDEP with the
Stockwell Brief; (2) informed KDEP that he intended to file an
environmental whistleblower suit after he was allegedly harassed
based on the Dr. Stockwell situation; (3) requested to provide
information to the EPA for a Superfund enforcement action; (4)
wrote and distributed numerous documents related to potential
environmental problems within the tri-state area; (5) provided
information to citizens groups, environmental advisory committees
and other state environmental agencies regarding his concerns for
the environmental health and safety of the tri-state region; and
(6) complained to his management about environmental concerns and
his unfair treatment.  (Complainant's Pre-Hearing Statement at 5-
6.)

     KDEP responds that if Complainant had taken these actions in
the appropriate manner, his conduct might have been protected. 
However KDEP argues that Complainant's actions were not protected
because he was not authorized to write and distribute the documents
in question as official state reports, he disobeyed valid
instructions from his supervisors, he drafted letters encouraging
criticisms of Kentucky officials, he released confidential state
documents to media representatives and citizens groups, and spent
inappropriate amounts of time on controversies far removed from his
job responsibilities.  (Respondent's Pre-Hearing Statement at 36-
37.) 

     Complainant contends that an employer may respond to the
conduct of the employee in raising a protected complaint only when
that conduct is "indefensible under the circumstances."  (ClBrII at
9, citing Oliver v. Hydro-Vac Services, Inc.,
91-SWD-1 slip op. at 17 (Sec'y November 1, 1995)).  Indeed, in
several cases involving intemperate and impulsive behavior, the
Secretary has recognized that "it is normal for employees engaging
in protected activities to exhibit impulsive behavior and that such
employees may not be disciplined for insubordination so long as
their behavior is lawful and their 'conduct is not indefensible in
its context.'"  Sprague v. American Nuclear Resources, Inc.,
92-ERA-37 slip op. at 9 (Sec'y 
[PAGE 16]
December 1, 1994) (citing Kenneway v. Matlock, Inc.,
88-STA-20 slip op. at 6 (Sec'y June 15, 1989).

     Importantly, however, the Secretary has more generally and
consistently pointed out that "an employer may take action against
an employee for improper conduct in raising otherwise protected
complaints."  Oliver v. Hydro-Vac Services, Inc., 91-SWD-1
slip op. at 17 (Sec'y November 1, 1995) (citing Carter v.
Electrical District No. 2 of Pinal County, 92-TSC-11 slip op.
at 19-20 (Sec'y July 26, 1995); Garn v. Toledo Edison Co.,
88-ERA-21 slip op. at 6 (Sec'y May 18, 1995)); Sprague v.
American Nuclear Resources, Inc., 92-ERA-37 slip op. at 8-10
(Sec'y December 1, 1994).  The fact "that employees are
protected while presenting safety complaints does not give them
carte blanche in choosing the time, place and/or method of
making those complaints."  Garn v. Toledo Edison Co., 88-
ERA-21 slip op. at 6 (Sec'y May 18, 1995); Carter v.
Electrical District No. 2 of Pinal County, 92-TSC-11
(Sec'y July 26, 1995).  See also Dunham v. Brock, 794
F.2d 1037, 1041 (5th Cir. 1986).  Rather "the employee conduct
[must] be reasonable in light of the circumstances, and ... the
employer's right to run his business must be balanced against the
rights of the employee to express his grievances."  Jefferies v.
Harris Cty. Community Action Ass'n, 615 F.2d 1025, 1036 (1980)
(citing Hochstadt v. Worcester Foundation for
Experimental Biology, 545 F.2d 222, 230-234 (1st Cir.
1976)) (cited with approval in Bassett v. Niagara
Mohawk Power Co., 86-ERA-2 (Sec'y September 28, 1993)).  See
also Lajoie v. Environmental Management Systems, Inc.,
90-STA-31 slip op. at 10-14 (Sec'y October 27, 1992)[7] .

     At the outset, I note that none of Complainant's alleged
protected activities were accompanied by any intemperate or
impulsive behavior in this case.  The Stockwell Brief was
approximately 17 pages when Complainant mailed it to Dr. Stockwell,
(Rx 59), and was approximately 61 pages, including attachments, in
its "revised" form[8] , (Rx 60).  The NEPA report, regarding the
Huntsman Chemical Plant, spanned approximately 83 pages.  (Rx 106.) 
Admittedly, Complainant spent "a significant portion" of his time
"preoccupied" with obtaining the services of Dr. Stockwell.  (Cx
33.)  Such calculated and protracted activities can be considered
neither impulsive nor intemperate, and therefore Complainant's
manner need not be "indefensible under the circumstances" in order
to be responded to by his supervisors.  Cf. Oliver v.
Hydro-Vac Services, Inc., 91-SWD-1 slip op. at 17 (Sec'y
November 1, 1995); Sprague v. American Nuclear Resources,
Inc., 92-ERA-37 slip op. at 9 (Sec'y December 1, 1994);
Kenneway v. Matlock, Inc., 88-STA-20 slip op. at 6 (Sec'y
June 15, 1989); Garn v. Toledo Edison Co., 88-ERA-21 at p.6
(Sec'y May 18, 1995); Carter v. Electrical District 
[PAGE 17]
No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995);
Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986).

     KDEP management has expressed several legitimate,
nondiscriminatory business concerns which must be balanced against
Complainant's right to express his own environmental concerns. 
Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y
September 28, 1993); Lajoie v. Environmental Management
Systems, Inc., 90-STA-31 slip op. at 10-14 (Sec'y October 27,
1992).  For example, KDEP has a legitimate, nondiscriminatory
business interest in ensuring that documents which reasonably
appear to be official KDEP-sanctioned or KDEP-supported documents
accurately reflect the position of KDEP management.  KDEP
management also has a related legitimate, nondiscriminatory
business interest in cultivating a cooperative relationship with
the EPA, rather than antagonizing EPA management by intervening on
behalf of an employee who has a grievance of some sort with EPA
management.  Although Complainant has a protected right to so
intervene, and aid in the administrative investigation of Dr.
Stockwell's grievance, and to express his own environmental
concerns to whomever he subjectively deems appropriate, he does not
have a protected right to do so on behalf of KDEP, if KDEP
management does not share his concerns.  More importantly, KDEP has
a legitimate, nondiscriminatory business interest in ensuring that
an "employee's conduct in protest of an unlawful employment
practice," or environmental violation, does not "so interfere with
the performance of his job that it renders him ineffective in the
position for which he was employed."  Jones v. Flagship
Int'l, 793 F.2d 714, 728 (5th Cir. 1986) (quoting
Rosser v. Laborers" Int'l Union, Local 438, 616 F.2d 221,
223 (5th Cir.), cert. denied 449 U.S. 886 (1980)).  See
also Smith v. Texas Dept of Water Resources, 818 F.2d
363, 366 (5th Cir. 1987).  Cf. EEOC v. Crown Zellerbach
Corp., 720 F.2d 1008, 1013 (9th Cir. 1983).

     Notwithstanding the arguments of the parties, Complainant's
actions while Project Coordinator need not be deemed "entirely
protected" or "entirely unprotected."  See Bassett,
slip op. at 6.  Rather, I find that the manner in which he
conducted the allegedly protected activities central to this
litigation (most importantly, the Stockwell controversy, the EPCRA
letter, and the NEPA report) implicates the above
nondiscriminatory, legitimate business concerns of KDEP management. 
Therefore, Complainant's activities had both unprotected and
protected aspects.  To the extent that KDEP management reasonably
responded to the legitimate, nondiscriminatory business concerns,
they did not violate the environmental whistleblower protection
provisions.  Id.  Should Complainant prove, by a
preponderance of the evidence, however, that KDEP's responses were
truly motivated by the protected aspects 
[PAGE 18]
of his activities, Complainant may establish a violation. 
See Jackson v. Ketchikan Pulp Co., 93-WPC-7/8 at pp.
4-5 n.1 (Sec'y, March 4, 1996).  Furthermore, "the employer bears
the risk that the influence of legal and illegal motives cannot be
separated," Sprague, slip op. at 11;  Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1164 (9th Cir.
1984); Guttman v. Passaic Valley Sewerage Comm'rs, 85-WPC-2
slip op. at 19 (Sec'y March 13, 1992), aff'd sub nom.
Passaic Valley Sewerage Comm'rs v. United States Dept. of
Labor, 992 F.2d 474 (3d Cir. 1993), in which case the
traditional "dual motive" analysis applies[9] .

     B.  ALLEGED RETALIATION

          1.  Hostile Work Environment

     Complainant alleges in part that he was subjected to a
"hostile work environment" consisting of harassment and other
retaliatory acts by the Respondent, on the basis of protected
activity.

     The Secretary has found that the principles governing Title
VII hostile work environment claims, as stated by the Supreme Court
in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) and
Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993), are
equally applicable to hostile work environment claims under the
environmental whistleblower statutes.  Varnadore v. Oak Ridge
National Laboratory, 92-CAA-2/5, 93-CAA-1 (Sec'y, January 26,
1996); See also English v. General Electric
Co., 858 F.2d 957 (4th Cir. 1988).  The Secretary noted the
following necessary elements to a claim of hostile work environment
under Title VII:

     (1)  the plaintiff suffered intentional discrimination because
          of his or her membership in the protected class;

     (2)  the discrimination was pervasive and regular;

     (3)  the discrimination detrimentally affected the plaintiff;

     (4)  the discrimination would have detrimentally affected a
          reasonable person of the same protected class in that
          position; and

     (5)  the existence of respondeat superior liability.

Id., citing West v. Philadelphia Electric Co.,
45 F.3d 744 (3d Cir. 1995).  Tailoring the first of these elements
to environmental whistleblower claims, the Secretary explained that
Complainant must prove that he or she suffered intentional
retaliation as a result 
[PAGE 19]
of protected activity.  Id.

     In the instant case, I find that KDEP's alleged retaliatory
responses to Complainant's preparation of the Stockwell Brief, the
NEPA report, and the EPCRA letter, were not based on protected
activity.  Rather, I find that Barnett and Shepherd carefully and
tailored their various admonishments to the unprotected manner in
which he conducted his activities, and unequivocally conveyed the
message to Complainant that he was free to pursue his protected
concerns in a reasonable and protected manner.

     With respect to the Stockwell situation, I note that Barnett
and Shepherd responded only by instructing Complainant not to
represent his own views, regarding the facts and EPA's motivations,
as an official position of the State of Kentucky.  (See e.g., Tr at
297.)  I further note that Barnett in fact sought to facilitate
Complainant's involvement in the reasonable and appropriate manner,
by calling John Hankinson, EPA Region 4's Regional Administrator to
assure him that Complainant would be available to answer any
questions regarding the Stockwell situation.  (Tr at 1299-1300.) 
Shepherd's uncontested testimony also indicates that he told
Complainant "he had every right" to assist with the investigation
of the Stockwell matter in the appropriate manner, "without
misrepresenting that his views were the views of the Kentucky
Department for Environmental Protection ... [which was] the
misrepresentation that was implicit in the document he created that
was the fundamental source of concern."  (Tr at 297.)

     I find, in addition, that Complainant's Stockwell Brief,
albeit unintentionally, reasonably appears to represent an official
KDEP position to the unsuspecting, casual reader.  The cover of the
brief unequivocally notes that it was prepared by the KDEP
Commissioner's Office.  Moreover, Miller misinterpreted the
document as an official KDEP position, as reflected by his inquiry
to Shepherd upon discovering the brief.  Barnett and Shepherd were
both careful to impress upon Complainant that it was this
misleading aspect of the document, as well as their lack of
information regarding its accuracy, and not complainant's
assistance with the Stockwell investigation itself, that concerned
them.

     Similarly, Complainant's EPCRA letter may have had a protected
aspect to it, in that it expressed a desire to aid in a Superfund
enforcement proceeding.  However the method which Complainant chose
to request such involvement was again inappropriate, as he
represented that KDEP, as a state agency, desired "formal
involvement in the negotiation process," when in fact KDEP had no
desire to intervene "formally" and the proceeding involved no 
[PAGE 20]
violations in Kentucky.  Although Complainant presumably did not
intentionally misrepresent KDEP's desired involvement in the
request or the nature of the request, I find it was that aspect of
the letter which KDEP sought to redress, and KDEP's reaction was
not based on the protected aspect of the letter.  Again, KDEP did
not prevent or attempt to prevent Complainant from providing the
relevant information regarding Ashland Oil to Deutsch from EPA
Region 4, but rather expressed concern with Complainant's use of
the term "formally involved" in a message on state letterhead, as
it created the false impression of official state action, while
Kentucky had no authority whatsoever regarding the settlement
negotiations.

     Barnett similarly limited his response to Complainant's NEPA
report, regarding the Huntsman Chemical Plant, to his concern that
Complainant used his official position with Kentucky as Coordinator
to take action which neither the Steering Committee nor Kentucky
authorized or, in fact, approved of.  Complainant as a fact
identified himself on the report's cover as "Coordinator, Tri-State
Geographic Initiative," for "U.S. Environmental Protection Agency,
Region IV," and "Kentucky Department for Environmental Protection." 
Yet the report itself acknowledges that it "was written under the
sole initiative of Brian Holtzclaw," it "was not commissioned by
the U.S. EPA Region III, or any particular supervisor," and it
"represents the findings of the writer and does not necessarily
reflect the opinions of the U.S. Environmental Protection Agency
Region IV and the Kentucky Department of Environmental Protection." 
(Rx 106.)

     Complainant also relies on the May 13, 1994 memorandum from
Barnett, (Cx 51), as evidence of unlawful retaliation.  Complainant
had admitted that a "significant portion" of his time was
"preoccupied" with obtaining the services of Dr. Stockwell and that
this "unexpectedly demanding" endeavor "took time from other
aspects of managing the risk screening, air toxics, pollution
prevention, and surface water projects."  (Cx 33.)  Keatley's
hearing testimony confirmed that Complainant had spent
approximately 70% of his time during the fall of 1993 on the
Stockwell matter, (Tr at 1099), and Barnett had recently been
confronted with Complainant's EPCRA letter.  Since only the
unprotected aspects of these events troubled Barnett, I find
that this memo expresses a reasonable, nondiscriminatory,
legitimate concern that Complainant had been neglecting his true
responsibilities as Coordinator, and that his inappropriate manner
in promoting his whistleblowing activities had begun to "so
interfere with the performance of his job that it render[ed] him
ineffective in the position for which he was employed."  See
Jones 
[PAGE 21]
v. Flagship Int'l, 793 F.2d 714, 728 (5th Cir. 1986)
(quoting Rosser v. Laborers" Int'l Union, Local 438,
616 F.2d 221, 223 (5th Cir.), cert. denied 449 U.S. 886
(1980)).  Therefore, rather than unlawful retaliation, I find that
the May 13, 1994 memorandum represents a nondiscriminatory,
reasonable and legitimate attempt to urge Complainant to refocus on
the tasks for which he was hired.

     In summary, Complainant has failed to prove that he suffered
any retaliation as a result of any protected aspect of his
actions while Coordinator.  Rather, Barnett and Shepherd lawfully
and reasonably responded to various unprotected aspects of
Complainant's activities, raising reasonable, non-discriminatory,
legitimate business concerns regarding Complainant's performance of
his duties.  Therefore, Complainant's claim that he was subjected
to a "hostile work environment" consisting of harassment and other
retaliatory acts must fail.  Varnadore, Philadelphia
Electric Co., supra.

          2.  Non-Renewal of Complainant's IPA

     Complainant also alleges, more specifically, that KDEP
unlawfully failed to renew his IPA in violation of the
environmental whistleblower provisions.  KDEP argues that
Complainant's IPA was not renewed because they decided during the
summer of 1994 to "institutionalize" the Coordinator position,
changing it from an IPA-staffed position to a permanent merit
system position, in order to ensure continued support for the
initiatives after the administration left office in December, 1995. 
KDEP also asserts that it had independent reasons for not renewing
Complainant's assignment because of his poor work performance, his
disobedience of instructions from his supervisor, his poor working
relationships with other essential colleagues, and his gross
misconduct as abundantly documented while Complainant was employed
in Kentucky.  

     Complainant bears the burden of proving by a preponderance of
the evidence that his IPA was not renewed because of protected
activities.  Jackson v. Ketchikan Pulp Co., 93-WPC-7/8 slip
op. at 4-5 n.1 (Sec'y, March 4, 1996).  Therefore, Complainant must
"establish that the employer's proffered reason[s] are pretextual
by establishing either that [an] unlawful reason, ... protected
activity, more likely motivated [the employer] or that the
employer's proffered reason[s] [are] not credible and that the
employer discriminated against him."  Bechtel Const. Co.
v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. 1995)
(aff'g Nichols v. Bechtel Construction Inc., 87-ERA-
44 (Sec'y October 26, 1992)).  If Complainant successfully
establishes that KDEP's 
[PAGE 22]
proffered explanations are pretextual, Complainant must further
establish that the true reason for the decision was his protected
activity.  See St. Mary's Honor Center v.
Hicks, -- U.S. --, 113 S.Ct. 2742 (1993); Carroll v. Bechtel
Power Corp., 91-ERA-46 (Sec'y February 15, 1995).

     KDEP has essentially asserted two general motivations behind
their decision not to renew Complainant's IPA: (1) the desire to
"institutionalize" the Coordinator position and (2) various other
concerns about Complainant's work performance.

     Complainant has failed to prove any pretext with regard to
KDEP's desire to change the Coordinator position from an IPA-
staffed position to a permanent merit system position, in order to
ensure continued support for the initiatives after the
administration left office in December, 1995.  The Coordinator
duties were performed by a full time state employee, Dr. Morgan,
prior to Complainant taking over.  Shepherd's uncontroverted
testimony explained that "a very stringent hiring freeze" was in
effect when [Dr. Morgan was promoted] and [Complainant] took over
the Coordinator position, and therefore KDEP was "not able to hire
and fill vacancies without a very elaborate process and very strong
justification."  (Tr at 276.)  Barnett, having himself originally
worked for Kentucky under an IPA, suggested such an arrangement to
Shepherd.  Complainant was thus hired under an IPA for a limited,
although renewable, 2 year term.

     Shepherd determined, in the summer of 1994, that the position
should return to a full time state employee, because "if the
staffing of that project was totally dependent on the use of a
federal employee on loan to Kentucky, that ... would be
counterproductive to the overall success of the project and it
would be quite easy and more likely that that kind of project would
be terminated upon a change in state administrations, which was ...
a little over a year off at that point."  This decision was reached
in the context of a larger structural reorganization which took
place within the Cabinet for Natural Resources and Environmental
Protection.  (Tr at 166, 318, 1334-1335.)  

     By the time of the hearing, the reorganization was in fact
completed, and a new "environmental control manager" position was
established, (Rx 72; Tr at 1202), with responsibility "for the
coordination of all inter-governmental activities ... a single
point of contact who would oversee projects that involve joint
ventures between the state and the federal EPA or other states or
other state agencies."  (Tr at 322.)  Another state employee was
subsequently hired to manage the geographic initiatives directly. 

[PAGE 23]
(Tr at 322-323; 1201-1203.)

     In sum, there is no evidence in the record to undermine the
bona fides of this legitimate, non-discriminatory justification for
KDEP's decision not to renew Complainant's IPA.  In fact
Complainant's own witness, Richard Bady, who works as a research
coordinator for the Ohio Valley Environmental Coalition, which was
involved on the Citizens Advisory Committee for TSI, observed the
difficulties created by the lack of a continuous employee in the
Coordinator position, explaining:

     It took a long time to put all this data together.  The
     monitoring resulting from this was just starting to begin
     to happen ... and ... as soon as [Complainant] did leave,
     six or eight months pass with nothing whatsoever
     happening ... [D]elays like this are what we've been
     concerned about all along.  There have been other cases
     with the -- we already experienced one person being in
     charge, Mr. Morgan, we thought things would start to
     happen and suddenly he's gone, so there are great delays. 
     Another person comes in, finally gets things going, and
     just when his efforts are about to bear fruit, he's gone. 
     There is a ... pattern there that concerns us.

(Tr at 207-208.)   I find that Complainant has not demonstrated
that the desire to fill the Coordinator position with a permanent
state employee is a pretextual justification.

     KDEP also argues that it "had independent reasons for not
renewing [Complainant's] assignment because of his poor work
performance, his disobedience of instructions from his supervisor,
his poor working relationships with other essential colleagues, and
his gross misconduct as abundantly documented."  (RBrII at p. 7.) 
I have concluded that KDEP's concerns over Complainant's treatment
of the Stockwell situation, the NEPA report, and the EPCRA letter
are not tantamount to protected activity, supra.
p. 20.  Rather, KDEP responded to legitimate, non-
discriminatory and unprotected aspects of the manner in
which Complainant performed his activities.  Therefore, to the
extent KDEP relied on these factors in deciding not to renew
Complainant's IPA, that decision did not violate the environmental
whistleblower provisions.

     Thus, I find that Complainant has failed to show that
Respondent's legitimate, nondiscriminatory business concerns, which
allegedly motivated the decision not to renew his IPA, are
pretextual.  More specifically, I find that Barnett and Shepherd
decided not to renew Complainant's IPA based on the genuine belief 
[PAGE 24]
that the Coordinator position should be institutionalized, as well
as their dissatisfaction with certain unprotected aspects of
Complainant's job performance regarding the Stockwell situation,
the EPCRA letter, and the NEPA report.  Therefore, I need not
resolve the conflicting evidence regarding Complainant's overall
job performance or working relationships with his colleagues, as
Complainant has failed, in any event, to prove by a preponderance
of the evidence, that the aspects of his activities which are
protected by the environmental whistleblower protection provisions
motivated the decision not to renew his IPA.

     C.  CONCLUSION

     Based upon the foregoing, I conclude that Complainant has
failed to establish that KDEP declined to renew his IPA, or
otherwise retaliated against him, due to activity protected by the
environmental whistleblower protection provisions of the Clean Air
Act, 42 U.S.C. section 7622; the Safe Drinking Water Act, 42 U.S.C.
section 300j-9; the Solid Waste Disposal Act, 42 U.S.C. section
69713; the Water Pollution Control Act, 33 U.S.C. section 1367; the
Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. section 9610; and the Toxic Substances Control Act,
15 U.S.C. section 2622.

                  RECOMMENDED ORDER

     For the reasons stated above, it is recommended that the
Complaint of Brian L. Holtzclaw be dismissed in its entirety.


                                   Ainsworth H. Brown
                                   Administrative Law Judge

Camden, New Jersey

NOTICE:  This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review by
the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Avenue, N.W., Washington, D.C. 20210.  The Office
of Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978.  See 55
Fed. Reg. 13250 (1990).





[ENDNOTES]
              
[1]   Complainant settled with EPA prior to the hearing.

[2]   The following references will be used herein: Tr for
hearing transcript; Cx for Complainant's exhibit; Rx for
Respondent's exhibit; ClBr and ClBrII for Complainant's post-
hearing brief and Complainant's post-hearing response brief,
respectively; and RBr and RBrII for Respondent's post-hearing
brief and Respondent's post-hearing response brief, respectively.


[3]   Complainant's position was commonly referred to as "Project
Coordinator."  (Tr at 575.)

[4]   The TIP approach rates particular chemicals according to
the number adverse health effects which they produce in humans,
such as chronic and reproductive toxicity.  (Tr at 598.)  The TIP
score is then multiplied by the mass of the chemical which is
released into the environment by industry in a particular area,
to determine the relative risk of particular chemicals in the
area.

[5]   Dr. Westerman explained that his concern with the TIP
method was that it did not sufficiently account for varying
levels of toxicity among different chemicals, rating highly toxic
chemicals on the same level as less toxic ones.  (Tr. at 222.) 
Dr. Westerman therefore persuaded Complainant to include other
methodologies in the risk screening report which was eventually
released in September, 1994.  (Rx 33.)

[6]   The Inspector General's office was in charge of
investigating Dr. Stockwell's grievance.

[7]   I note that the Secretary has considered cases under both
Title VII and the National Labor Relations Act relevant
authority in assessing the manner in which an employee conducts
his protected activities.  Lajoie; Bassett.

[8]   It appears that "revision #4" of the brief, Rx 60, was
never in fact released to anybody.

[9]   Under such an analysis, once the Complainant proves by a
preponderance of the evidence that Respondent was motivated at
least in part by protected activity, the burden shifts to the
Respondent to demonstrate by a preponderance of the evidence that
the same actions would have been taken absent the illegitimate
motive.  Sprague v. American Nuclear Resources, Inc., 92-
ERA-37 slip op. at 11 (Sec'y December 1, 1994); Dartey v. Zack
Co. of Chicago, 82-ERA-2 slip op. at 9 (Sec'y April 25,
1983); Mount Healthy City School District Board of Education
v. Doyle, 429 U.S. 274, 287 (1977); Price Waterhouse v.
Hopkins, 490 U.S. 228, 252 (1989).  As discussed below,
however, a dual motive analysis does not apply in this case,
since KDEP responded solely to the unprotected aspects of
Complainant's activities, taking care to safeguard his rights to
engage in the protected activity in the proper manner.