DATE: January 5, 1999

CASE NO: 1998-CAA-13

In the matter of:

DAVID L. LEWIS
   Complainant

   v

ENVIRONMENTAL PROTECTION AGENCY
   Respondent

   On February 27, 1998, Complainant filed a complaint with the Occupational Safety and Health Administration, U.S. Department of Labor, alleging discrimination and retaliation for protected activity under the Clean Air Act (CAA) at 42 U.S.C. § 7622, the Safe Drinking Water Act (SDW) at 42 U.S.C. § 300j-9, the Solid Waste Disposal Act (SWDA) at 42 U.S.C. § 6971, the Water Pollution Control Act (WPCA) at 33 U.S.C. § 1367, the Superfund Law at 42 U.S.C. § 9610, and the Toxic Substance Control Act (TSCA) at 15 U.S.C. § 2622. The Occupational Safety and Health Administration investigated Complainant's allegations and, by letter dated August 18, 1998, Arthur M. Johannes, Regional Supervisory Investigator, determined that based on the evidence reviewed, discrimination was a factor in the actions comprising Complainant's complaint.

   On August 21, 1998, Complainant filed a request for a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ). On August 24, 1998, the Environmental Protection Agency also requested a hearing before the OALJ.

   The trial was set for January 12, 1999 through January 15, 1999 in Alexandria, Virginia. On November 2, 1998 I issued an Order Granting Joint Motion to Vacate Hearing Dated and Stay Proceeding for Sixty Days and the parties indicated that a settlement agreement would be presented within sixty (60) days. By facsimile transmission received December 15, 1998, the parties submitted a Joint Motion to Approve Settlement and Dismiss Complaint. Said Motion indicates that the parties entered into a Settlement Agreement on December 15, 1998. The parties request that a Recommended Decision and Order Approving Settlement and dismissing the complaint with prejudice be issued.

   My review of the Settlement Agreement is limited to a determination of whether its' terms are fair, adequate and reasonable settlement of the Complainant's complaint concerning violations of the various statutes mentioned above. The basic criteria is whether the Settlement adequately protects the whistleblower. Further, the Settlement must not be contrary to public interest.

   After consideration of the Settlement Agreement and the representations of the parties, I find the Agreement to be fair, adequate and reasonable, and I believe it is in the public interest adopt the Settlement Agreement as a basis for the administrative disposition of this matter.

   Accordingly, it is RECOMMENDED:

1. That the settlement agreement attached hereto be approved.

2. That the claim of David L. Lewis against the above-captioned respondent be dismissed with prejudice.

       MICHAEL P. LESNIAK
       Administrative Law Judge

MPL/dmg

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order, and shall be served on all parties and on the Chief Administrative Law Judge. See, 29 C.F.R. § 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).