Minard v. Nerco Delamar Co., 92-SWD-1 (ALJ Sept. 17, 1992)

May 9, 2009

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Minard v. Nerco Delamar Co., 92-SWD-1 (ALJ Sept. 17, 1992)

U.S. Department of Labor
Office of Administrative Law Judges
800 K Street. N.W.
Washington, D.C. 20001-8002

Dated: September 17, 1992
Case No.: 92-SWD-1

In the Matter of

WALTER MINARD
Complainant

NERCO DELAMAR CO.
Respondent

W. Craig James, Esq.
Chris Kronberg, Esq.
Boise, ID
For the Complainant

Pamela L. Jacklin, Esq.
Portland, OR
For the Respondent

Before: JEFFREY TURECK
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This is a case arising under the employment protection provisions of Solid Waste Disposal Act, 42 U.S.C. 6971(a)("the Act"), also known as §7001 of the Resource Conservation and Recovery Act, and the regulations thereunder found at 29 C.F.R. Part 24. Complainant alleges that he was fired from his Job as a mechanic at respondent's DeLamar Silver Mine because he expressed environmental complaints regarding respondent's dumping of used antifreeze into a drain leading to the tailings pond at the mine and threatened to report this activity to Governmental agencies, and insisted that respondent report an oil spill to governmental authorities. Respondent contends that there is no Jurisdiction under the Act since neither antifreeze nor oil are hazardous substances subject to the Act's provisions; that complainant never made such complaints; that its supervisory employees responsible for the decision to fire complainant were unaware any such complaints had been made; and that complainant was fired due to insubordination based on events occurring at the mine Rite on November 18 and 23, 1991. A formal hearing was held in Boise, Idaho from March 31 -

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April 2, 1992. Based on the evidence presented at that hearing, it is recommended that the complaint be dismissed for lack of jurisdiction.

Findings of Fact and Conclusions of Law¹

a. Background

Respondent operates a gold and silver mine in southwest Idaho, near the Oregon border. Complainant is a 51 year old heavy equipment mechanic who was terminated on November 25, 1991. He is married, and lives in Nampa, Idaho. Complainant orginially was hired as a Mechanic 3, respondent's lowest-paying mechanic position (TR 31). He was promoted to Mechanic 2 in about 1985 (TR 32), and finally to Mechanic 1 in 1988 (TR 33). He generally worked five days a week, including Saturdays and Sundays, and was off for two consecutive weekdays each week. Apparently, the weekends are busy times for mechanics at DeLamar. Since no mining occurs, all of the mining equipment is available for maintenance or repair.

Cyanide is a byproduct of the silver and gold mining process at the DeLamar mine (e.g., TR 41).² This cyanide was released into a 120 acre tailings pond which, due to the presence of the cyanide, was highly toxic to wildlife (id.). Several witnesses testified that they saw or were aware of deer which died near the pond, apparently after drinking from it. Further, there was testimony regarding the deaths of numerous waterfoul who alighted on the pond. In 1990, respondent was criminally indicted by the U.S. Government for six counts of violating the Migratory Wildlife Treat Act. Respondent pleaded guilty to the charges. According to the terms of a plea bargain. respondent paid a $10,000 fine and agreed to come up with a plan to detoxify the tailings pond (see EX Z. at 7-8). Respondent has since detoxified the tailings pond, and a new $6,000,000 plant. designed to recycle the cyanide rather than dump it into the tailings pond was scheduled to open about two weeks after the hearing was completed.³ There is no evidence in the record suggesting that respondent failed to cooperate fully with both Federal and State agencies to remedy the problem of the wildlife deaths at the mine.

Complainant contends that he was fired by the respondent on November 25, 1991 because he earlier complained to supervisors that: (1) he was forced to dump used antifreeze which he believes is toxic to animals into a drain leading into the tailings pond at respondent's mine; and (2) respondent should have reported a leak of about 100 gallons of motor oil to Governmental authorities. Respondent claims that the complainant

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was fired for legitimate, work-related reasons, and that the company officials who made the decision to terminate him were unaware of the complaints listed above. Complainant filed a complaint with the Department of Labor on December 19, 1991 which was dismissed by the District Director of the Employment Standards Administration on January 16, 1992.

b. Jurisdiction

42 U.S.C. §6971(a) states as follows:

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee ... by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable implementation plan.

(Emphasis added). The implementing regulations for DOL whistleblower proceedings, in further defining what is prohibited under the Act, state at 29 C.F.R. §24.2:

(b) Any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

(1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced a proceeding under one of the Federal statutes listed in §24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

(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 such Federal statute.

(Emphasis added). The complainant has stipulated that neither antifreeze nor motor oil, the products concerning which he allegedly complained to his supervisors, are hazardous substances under the Act [TR 20-21; see also Complainants Closing Arguments and Memorandum ("Claimant's Brief") at 4,

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and 40 C.F.R. §§261.30-33]. Nevertheless, it is his position that there is jurisdiction for this case under the Act because he "had a good faith belief that Respondent was disposing of hazardous wastes in an unlawful manner.- (Claimants Brief at 4). This argument must fail.

Although there is case law holding that, to fall under the jurisdiction of whistleblower protection or similar legislation, an employee's activities may be protected even if the conduct complained of is found not to have occurred or not to have violated the law (see. e.g., Wu v. Thomas, 863 F.2d 1543, 1549 (llth Cir. 1989); Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980); Pettway v. American Cast Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)), none of these cases concern a situation where the complaint failed to allege an underlying violation of the statute affording protection to the employee. But that is the case here.

Logic dictates, and the statutory and regulatory language quoted above make clear, that an employee's complaints regarding his employer`" conduct which, even if true, do not allege a violation of the statute providing whistleblower protection, are not protected by that statute. Section 6971(a) of the Act talks about the employee initiating or filing, or testifying in regard to, "proceedings under this chapter". To these the regulations at §24.2(b) add proceedings for the ... enforcement of any requirement imposed under such Federal statute" and "to carry out the purposes of such Federal statute." An employer's conduct which is not proscribed by the Act, and thus does not run afoul of the Act even if it occurred exactly as alleged by the employee, cannot lead to "a proceeding under this chapters or an action "to carry out the purposes of such Federal statute", and does not concern a Requirement imposed under such Federal statute. As the Secretary noted in Aurick v. Consolidated Edison Company, 86-CAA-2 (April 23, 1987),⁴ a case brought under the Clean Air Act, 42 U.S.C. §7622(a), which does not regulate air quality in the workplace:

[I]f Complainant's complaints were limited to airborne asbestos as an occupational hazard, the employee protection provisions of the [Clean Air Act] would not be triggered.

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The employee's statement cannot be "opposed to an unlawful employment practice" unless it refers to some practice by the employer that is allegedly unlawful.

(Id. at 1013)(emphasis in original).

Accordingly, there is no reason for the whistleblower protection provisions of the Act to apply to complainant's concerns. It would make as much sense to find jurisdiction in this case under the Energy Reorganization Act or the Surface Transportation Assistance Act as it would under the Solid Waste Disposal Act, i.e., it would make no sense at all. Therefore, this case must be dismissed for lack of jurisdiction. See Brewer v. Ravan, 680 F. Supp. 1176, 1181 (N.D. Tennessee, 1988).

Accordingly, it is recommended that this case be dismissed for lack of subject matter jurisdiction.

Recommend Order

It is recommended that this case be dismissed for lack of Jurisdiction.

JEFFREY TURECK
Administrative Law Judge

[ENDNOTES]

¹Citations to the record of this case will be abbreviated as follows CX -- Complainant's Exhibit; RX -Respondent'Exhibit; TR -- Hearing Transcript.

²Since the record contains no evidence regarding gold and silver mining anywhere other than at the DeLamar mine, it is uncertain whether cyanide is a byproduct of all such mining and whether all silver and gold mines have traditionally disposed of the cyanide in the same manner as at the DeLamar mine.

³Apparently the plant opened as scheduled. See EX Z. at 9-11.

⁴This decision is reported in Decisions of the Office of Administrative Law Judges and Office of Administrative Appeals, Vol. 1, No. 2, at 409-10.