ARB CASE NO. 97-129
ALJ CASE NO. 95-CAA-3
DATE: November 24, 1998
In the Matter of:
STEVEN W. JONES,
COMPLAINANT,
v.
EG&G DEFENSE MATERIALS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Richard Condit, Esq., Joanne Royce, Esq.,
Government Accountability Project, Washington, D.C.
For the Respondent: Lois A. Baar, Esq., Michael Zody, Esq.,
Parsons, Behle & Latimer, Salt Lake City, Utah
ORDER GRANTING RECONSIDERATION
This case arises under the employee protection provisions of the Clean Air
Act, 42 U.S.C. §7622, the Toxic Substances Control Act, 15 U.S.C. §2622, and the
Solid Waste Disposal Act (also know as the Resource Conservation and Recovery Act), 42 U.S.C.
§6971 (1994) (collectively, "the environmental acts"). We issued a Final Decision
and Order (final decision) on September 29, 1998, in which we found that Respondent, EG&G
Defense Materials, Inc. (EG&G), violated the employee protection provisions of the environmental acts
when it counseled and discharged Complainant, Steven W. Jones.
[Page 2]
Within a few days of receiving the Final Decision, EG&G filed a Motion to
Amend Findings of Fact and for New Hearing On, or Amendment of, Reinstatement Order. EG&G
also filed a motion for stay of remedy pending consideration of the motion to amend. We treat the
motion to amend as a motion for reconsideration of our final decision.
Complainant has filed an opposition to EG&G's motion for reconsideration,
suggesting that the Board lacks authority under the environmental laws to reconsider a decision once it
is issued. We disagree, because the Board has inherent authority under the three statutes underlying
this proceeding to reconsider its decisions in appropriate circumstances. For a full discussion of the
authority of administrative agencies to reconsider their decisions, seeMacktal v. Brown
& Root, Inc., ARB Case No. 98-112 and 98-112A, Ord. Granting Reconsideration, Nov. 20,
1998 (Board has inherent authority to reconsider decisions under the Energy Reorganization Act).
The three environmental statutes at involved in this case -- the Clean Air Act,
42 U.S.C. §7401 et seq., the Toxic Substances Control Act, 15 U.S.C. §2601
et seq., and the Solid Waste Disposal Act, 42 U.S.C. §6901 et seq. --
represent efforts by Congress to protect the health and safety of persons and the environment by
regulating the manufacture and distribution of hazardous substances, and the release of hazardous
materials into the environment. The statutes mandate a comprehensive regulatory system, requiring
generally that persons or entities that manufacture, generate, store or dispose of toxic substances or
hazardous materials comply with a variety of regulations. Under each of the three statutes, general
enforcement authority is assigned to the Administrator of the Environmental Protection Agency.
Id.
Each of the three environmental statutes has an employee protection (or
"whistleblower") provision, with enforcement authority assigned to the Secretary of Labor
("Secretary"). 42 U.S.C. §7622; 15 U.S.C. §2622; 42 U.S.C.
§6971. Although the language of the whistleblower provisions in the three statutes varies in
some respects, the general scheme of all three is similar; in fact, the Secretary has promulgated a single
set of procedural regulations to govern the handling of employee discrimination complaints under these
statutes. See 29 C.F.R. Part 24; 63 Fed. Reg. 6614 (1998).
The whistleblower provisions of the environmental laws do not include specific
language addressing the Board's authority to reconsider its decisions. Absent congressional intent to
the contrary, agencies have inherent authority to reconsider their final adjudicative orders for error
within a reasonable time, Belville Mining Co. v. United States, 999 F.2d 989 (6th Cir.
1993) (and cases cited therein); Dun & Bradstreet Corp. Found. v. United States Postal
Serv., 946 F.2d 189 (2d Cir. 1991) (and cases cited therein); Henderson v. Veterans
Admin., 790 F.2d 436, 441 (5th Cir. 1986), "so long as reconsideration would not interfere
with, delay, or otherwise adversely affect accomplishment of the Act's safety purposes and
goals." Macktal at 4, citingGonzalez v. Firestone Tire & Rubber
Co., 610 F. 2d 241, 245 (5th Cir. 1980).
[Page 3]
As in Macktal, we find that the Board's reconsideration of its
decisions under the environmental laws would not interfere with or adversely affect the general
enforcement provisions of the environmental acts or the goals of the employee protection provisions
themselves. In Macktal, we noted that the general enforcement authority under the statute
applicable in that case (i.e., the Environmental Reorganization Act) was assigned to the
Nuclear Regulatory Commission; that the Commission's enforcement role operated separate and apart
from the Secretary of Labor's employee protection function; and that reconsideration of the Board's
order in that case would not impact adversely the Commission's administration of the statute. Similarly,
we find in this case that the general enforcement authority of the three environmental statutes at issue
here is assigned to the Administrator of the Environmental Protection Agency; that the Administrator's
enforcement role operates separate and apart from the Secretary of Labor's employee protection
function; and that reconsideration of the Board's order in this case would not impact adversely the
Administrator's administration of the environmental statutes. Further, we note that EG&G's motion to
reconsider was filed soon after the Board issued its order.
Upon reexamining the case in light of EG&G's motion to amend, we have
determined that further consideration is necessary. Accordingly, the motion to amend (reconsider) is
GRANTED. In addition, the motion for stay of remedy is GRANTED pending
our reconsideration of the final decision.
