U.S. DEPARTMENT OF LABOR
                                    
                           SECRETARY OF LABOR
                            WASHINGTON, D.C.


DATE: April 23, 1987
CASE NO. 86-CAA-2

IN THE MATTER OF

FREDERICK P. AURICH,
            Complainant,

    v.

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
            Respondent.

BEFORE: THE SECRETARY OF LABOR

                              REMAND ORDER


     Complainant filed a complaint under the employee protection
provision of the Toxic Substances Control Act (TSCA), 15 U.S.C.
§ 2622 (1982), with the Department of Labor on March 12,
1986.  He alleged that he had been discharged by Respondent
Consolidated Edison Company of New York, Inc. in retaliation for
filing safety complaints about asbestos.[l] Respondent moved to
dismiss the complaint on the grounds that the safety complaints
which allegedly were the motivating factor in Complainant's
discharge by Respondent were related only to workplace safety,
and that the employee protection provision of the CAA therefore
was inapplicable.

    Deputy Chief Administrative Law Judge (ALJ) E. Earl Thomas
granted Respondent's motion on July 29, 1986. Decision and Order
Granting Summary Judgment (D. and 0.). Complainant filed
exceptions to the ALJ's decision with a supporting brief and
Respondent filed a brief in opposition.  In addition, the
Government Accountability Project (GAP), a private, non-profit,
public interest law organization, filed a motion for leave to
file an amicus curiae brief, together with such a
brief. Respondent filed an opposition to GAP's motion.
Respondents opposition is based on asserted inaccuracies and
irrelevant 
[PAGE 2]
arguments raised in GAP's brief, as well as the additional time
which would be required for the Secretary to consider it, and to
give Respondent an opportunity to reply. I believe the
dispositive issues here have been adequately briefed 
by the parties, and therefore further time for briefing will
not be necessary. Respondent's arguments as to inaccuracies
and irrelevant material go to the weight to be given to GAP's
argument, not whether its motion should be granted. GAP's
motion therefore is granted under 29 C.F.R. § 18.12
(1986), and its brief is received as part of the record.
GAP's alternative motion that it be granted leave to
participate as an interested party therefore is denied as
moot.

    The ALJ held that in order for Complainant to state a
claim for relief under the CAA "he must have been complaining
about a violation of the Act; here, asbestos present in the
workplace must be a violation of the Act". D. and 0. at 2
(footnote omitted). The ALJ held that since the CAA "does not
govern the air inside the workplace," D. and 0. at 3,
asbestos in the air in a workplace is not a violation of the
CAA, and complaints about such a condition are not protected
activities under 42 U.S.C. § 7622(a).[2]

The CAA provides:

          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)--

               (l) commenced, caused to be commenced, or is
          about to commence or cause to be commenced a
          proceeding under this chapter or a proceeding for
          the administration or enforcement of any
          requirement imposed under this chapter or under any
          applicable implementation plan,

               (2) testified or is about to testify in any
          such proceeding, or

               (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 chapter.

42 U.S.C. S 7622(a).

[PAGE 3]

    Whether or not the CAA governs the air inside a
workplace, pursuant to that statute, the Environmental Protection Agency
has regulated the manner in which asbestos is handled within
workplaces during, among other things, renovation, to prevent
emissions of asbestos to the outside air. See 40
C.F.R. Chapter 61, Subpart M, §§ 61.146 and 61.147
(1986). If Complainant has complained that one or more
provisions of these regulations had been violated by
Respondent, such complaints would appear to be protected
under 42 U.S.C. § 7622(a). On the other hand if
Complainant's complaints were limited to airborne asbestos as
an occupational hazard, the employee protection provision of
the CAA would not be triggered.  In the converse of the
situation in this case, the Occupational Safety and Health
Administration has issued regulations which give a broad
scope to the employee protection provision of the
Occupational Safety and Health Act, 29 U S.C. §
660(c)(1982), protecting complaints with other Federal, State
or local agencies regarding occupational safety and health.
But "[s]uch complaints . . . must relate to conditions at the
workplace, as distinguished from complaints touching only
upon general public safety and health." 29 C.F.R. §
1977.9(b) (1986). I think a complementary approach is
applicable to the scope of 42 U.S.C. § 7622(a). Any
complaints regarding effects on public safety or health, or
concerning compliance with EPA regulations, under the CAA,
are protected under the CAA, but those related only to
occupational safety and health are not.
Here, since there was no hearing, there is nothing in the
record, other than Complainant's original complaint of
retaliation, to show the nature of his safety complaints.
Respondent argues that there were never any allegations
either that these EPA regulations were applicable or that
Complainant complained about Respondent's compliance with the
regulations. However, the CAA need not in fact be applicable
for an employee's complaint about possible violations of it
to be protected. H.R. Rep. No. 294, 95th Cong., 1st Sess.
325-326, reprinted in 1977 U.S. Code Cong. and
Ad. News 1077, 1404-05 [hereinafter cited as Rep. No. 294];
cf., Pettway v. American Cast
Iron Pipe Co., 411 F.2d 998, 1005 (5th
Cir. 1969); EEOC v. Locals 14
and 15, Int'l Union of
Operating Engineers, 438 F.Supp. 876 (S.D.N.Y. 1977). The
legislative history of the CAA also makes it clear that the employee
protection provision was intended to apply to complaints
about violations of "any requirements promulgated pursuant to
[the CAA].  H. Rep. No. 294, supra at 325.

[PAGE 4]

     Although Complainant's initial complaint of retaliation
on March 12, 1986, referred to complaints "about unsafe
working conditions . . . concerning the use and presence of
asbestos in the workplace", it also alleged more broadly that
"Mr. Aurich was actually fired in retaliation for his safety
complaints particularly those concerning asbestos." Given the
posture of this case, no evidence having been taken on the
exact nature of Complainant's safety complaints, and the
provision of the applicable regulations, 29 C.F.R. §
24.3(c) (1986), that "no particular form of complaint is
required," I find that dismissal should not be granted on the
pleadings because it is not clear that there is no set of
facts on the issue of coverage under which the Complainant
could prevail. Conley v. Gibson, 355
U.S. 41, 48 (1957).

     Accordingly, this case IS REMANDED to the ALJ for a
hearing on the merits, without prejudice to Respondent's
right to renew its motion based on an adequate record.

   SO ORDERED.

                                       WILLIAM E. BROCK
                                       Secretary of Labor

Washington, D.C.

[ENDNOTES]
         

[1]  Complainant amended his complaint on April 25, 1986, to
allege a violation of the employee protection provision of the
Clean Air Act, 42 U.S.C. § 7622 (1982) (CAA), in addition to
TSCA. The TSCA allegation was subsequently withdrawn by
Complainant. Complainant's Opposition to Respondent's Motion
to Dismiss, at 1 n.l.

[2] It is not necessary for me to review the ALJ's discussion
and holding on the scope of the TSCA employee protection
provision since Complainant has withdrawn his complaint under
TSCA. See supra note 1.