has the burden of persuasion and therefore should be the last party to file a responsive document, I do not grant Mr. DuJardin leave to file a response to Morrison Knudsen's Reply.

   In a Brief filed in support of its Motion for Summary Decision, Morrison Knudsen asserted that the specific bases for its claim are that internal safety complaints are not covered by the whistleblower statutes, (Resp. Br. at 4), and that Mr. DuJardin's complaints did not result from the enforcement of CERCLA or the Resource Conservation and Recovery Act, (Resp. Br. at 11). Concerning this second basis, Morrison Knudsen more specifically asserted that the whistleblower provisions provide protection to employees who institute or assist with the enforcement or administration of the Resource Conservation and Recovery Act and CERCLA, and since all Federal authority under the Resource Conservation and Recovery Act has been delegated to the State of Arkansas, and since CERCLA applies only when a release of a reportable quantity of hazardous substances has occurred, Mr. DuJardin's actions did not, as a matter of law, pertain or relate to the administration or enforcement of either of these two statutes. (Resp. Br. at 12, 14.) Therefore, Morrison Knudsen contended that Mr. DuJardin's claim must fail as a matter of law.

   In support of its contention that internal safety complaints are not covered by the whistleblower statutes, Morrison Knudsen cited Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), and its progeny, asserting that this case was "the leading decision in this area." (Resp. Br. at 6.)

arises in the Eighth Circuit, which has not specifically ruled on the issue but has upheld the Secretary's decision that internal complaints are covered, and because a majority of the circuits have held that internal safety complaints are protected activity, I find that an employee who directed a complaint concerning a safety matter to his or her employer has engaged in activity that is protected under the whistleblower statutes.

   In its motion, Morrison Knudsen asserted that any action initiated to enforce hazardous waste regulatory standards must be brought under the Arkansas Hazardous Waste Management Act, not the Resource Conservation and Recovery Act, because all Federal authority has been delegated to the Arkansas Department of Pollution Control & Ecology. (See Resp. Br. at 12-13.) However, after reviewing the arguments and authorities provided by the parties as well as previous decisions by the Secretary of Labor, I find no support for the proposition that Federal whistleblower protection has been preempted by or delegated to the State of Arkansas. For instance, while 42 U.S.C. § 6926 provides that once a state has obtained authorization from the U.S. Environmental Protection Agency (hereinafter "E.P.A."), its hazardous waste program operates in lieu of the Resource Conservation and Recovery Act's subchapter on Hazardous Waste Management, Dague v. City of Burlington, 732 F. Supp. 458, at 465 (D. Vt. 1989) (citing 40 C.F.R. § 271.3(b)), the Hazardous Waste Management subchapter is contained in 42 U.S.C. §§ 6921-6934, and this case was brought under the employee protection provisions found in section 6971. Accordingly, I find that this Office has jurisdiction to hear Mr. DuJardin's claim under the Solid Waste Disposal Act.

   In its motion, Morrison Knudsen asserted that "[i]n order for CERCLA to apply to the alleged salt release on May 13, 1993, there must have been a release of hazardous substances in a reportable quantity, CERCLA § 103(a), 42 U.S.C. § 9603(a)"; that the E.P.A. found that "any salts which were released from the stack contained a total equivalent value for dioxin of 247 parts per trillion (ppt), with metals in the low parts per billion range"; that CERCLA requires the report of releases of one pound of dioxin or greater; and that since Morrison Knudsen's calculations show that this amount was not released, CERCLA does not apply. (Resp. Br. at 14-15.) Therefore, Morrison Knudsen asserted that it was legally impossible for Mr. DuJardin to engage in conduct resulting in the enforcement or administration of CERCLA, and therefore, "as a matter of law, [Mr. DuJardin] is not covered by its employee protection provisions." (Resp. Br. at 15.)

   The Secretary of Labor and the Federal courts considering this issue have found that complaints regarding "possible violations," Kansas Gas & Elec. Co., 780 F.2d 1505, 1512 (l0th Cir. 1985) cert. denied, 478 U.S. 1011, 106 S. Ct. 3311 (1986), as well as "quality problems,"

Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir. 1984), are considered protected activity. Therefore, the fact that an employee may be mistaken as to whether an employer's actions were actual violations is not dispositive of the issue of whether the employee engaged in protected activity. In addition, the issue does not turn on whether the employee is actually successful in proving a violation. Rather, the primary consideration is whether the complaint was based upon possible violations. See Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Accord Richard Adams, No. 89-ERA-3 (Sec'y Aug. 5, 1992).

gravel areas. ( Id. at 4.) Further, E.P.A. opined that

[t]he decision to turn on the induction draft fan without the venturi and wet scrubber operating demonstrated poor judgement on the operations manager[']s part and the consequences were not well thought out. Had the high pressure venturi and wet scrubber been operational at that time, the potential for particulate emissions from the system would have been minimal. Dan Fuller, the VSC operations manager at the site at that time, who approved using the ID fan to cool down the system without the wet system operating, has been relieved from duty by VSC because of this event.

(Id. at 5.) Spills and unusual incidents are now reported to URS Consultants (the prime contractor) and E.P.A. immediately. (Id. at 4.)

   Based upon the fact that E.P.A. investigated the incident and filed an extensive report embodying the results of its investigation, the fact that E.P.A. found that the decision to turn on the induction fan under the specified circumstances "demonstrated poor judgment," (E.P.A. at 5), and the fact that Mr. Fuller was relieved of duty because of this event, I infer that it was reasonable for Mr. DuJardin to believe that a possible violation of Federal environmental protection statutes had occurred. Accordingly, I find that Mr. DuJardin's claim falls within the subject matter jurisdiction of CERCLA.

   In its motion, Morrison Knudsen asserted that Mr. "DuJardin is not an employee covered by the employee protection provisions of either" CERCLA or the Resource Conservation and Recovery Act. In addition, in its Reply Morrison Knudsen stated that Mr. DuJardin failed to qualify as a whistleblower because he "voluntarily resigned his employment and did not ask to be reinstated until some three weeks later" and "testified repeatedly that he told his employer he 'quit' and that it was important for him to let his employer know that he 'quit."' (Resp. Reply Br. at 8-9.) Mr. DuJardin did not address this issue in his Response. Because Morrison Knudsen raised this issue originally in its motion for summary decision but did not provide legal argument until its Reply, and because reply briefs are for the purpose of rebuttal and not raising new legal arguments, I will not consider the arguments provided in Morrison Knudsen's Reply.

   In Ronald Cowan, No. 87-ERA-29 (Sec'y Aug. 9, 1989), the Secretary held that the employee protection provision of the Energy Reorganization Act covered an employee who was applying for reemployment after having been laid off more than one-half of a year earlier. Moreover, in Michael W. Flanagan, No. 81-ERA-7 at 9 (Sec'y June 27, 1986), the Secretary found that the employee protection provision covered a Complainant who left his job during a training

   In support of its contention that there are no genuine issues of material fact remaining and that Morrison Knudsen is entitled to a summary decision as a matter of law, (Resp. Mtn. at 1), Morrison Knudsen submitted excerpts of testimony before the Arkansas Appeal Tribunal (hereinafter "A.A.T."), a letter and two memorandums from the E.P.A., and the affidavits of Robert Apa and Mack Mofidi.

   Motions for summary decision in whistleblower cases are governed by 29 C.F.R. §§ 18.40, 18.41 and under the analogous Fed. R. Civ. P. 56(e). J. Marshall Trieber, No. 87-ERA-25 (Sec'y Sept. 9, 1993). "Summary judgment may be rendered only when the court finds that the papers submitted in support of and in opposition to the motion reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Jack H. Friedenthal, et al., Civil Procedure § 9.3, at 439 (1985) (citing Fed. R. Civ. P. 56(c)). Under this rule, the non-moving party "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." J. Marshall Trieber, No. 87-ERA-25 (Sec'y Sept. 9, 1993), (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986)). In his response brief, Mr. DuJardin asserted that several material facts were in dispute, as follows: (1) whether he reported the alleged pollution release to Morrison Knudsen management at the site; (2) whether he raised the issue of reinstatement earlier than three weeks after the incident; and (3) whether he yelled and cursed prior to termination of his employment. (C1. Br. at 4-5.)

   On the issue of whether Mr. DuJardin reported the alleged pollution release to management, the record before me, which includes the original complaint to DOL, reports issued by DOL's Wage and Hour Division (hereinafter "Administrator"), the pleadings and memoranda submitted by the parties, and the documents submitted by Morrison Knudsen in support of its motion, 29 C.F.R. § 18.40(d); Fed. R. Civ. P. 56(c), indicates that Morrison Knudsen employed Mr. DuJardin as a maintenance technician at the Vertac Superfund site in Jacksonville, Arkansas, where Morrison Knudsen was chosen by E.P.A. to incinerate approximately 30,000 drums of hazardous substances. (Resp. Br. at 1; C1. Br. at 1.) On May 13, 1993, while at work, Mr. DuJardin became aware that salts were being released from

the incinerator stack, and he reported the incident to Dan Fuller, the Operations Manager at the Site. (Resp. Br. at 2; C1. Br. at 1-2.) When Mr. Fuller rebuffed his assertions, Mr. DuJardin resigned his position with Morrison Knudsen. (Resp. Br. at 2; C1. Br. at 2; A.A.T. at 149, 171.)

   In its brief Morrison Knudsen asserted that Mr. DuJardin's statements to Mr. Fuller did not constitute reporting the incident to management, since "Mr. Fuller did not, as a matter of law, constitute 'management.'" (Resp. Reply Br. at 2-3.) However, the record indicates that notwithstanding the fact that Mr. Fuller "had no authority to hire or fire employees, promote or demote personnel nor give salary adjustments" without the consent of Robert Apa, the plant manager, (Affidavit of Mr. Apa), Mr. Fuller was the operations manager for Morrison Knudsen, he provided "recommendations and advice" to Mr. Apa, (id.), he appears to have been in a position of high authority and responsibility at the site, and he was part of Morrison Knudsen's management team at the plant. Therefore, I find that reporting the alleged release of pollutants to Mr. Fuller constituted a report to Morrison Knudsen.

   Whether Mr. DuJardin requested reinstatement earlier than three weeks after resigning does not appear to be material to the resolution of this case. Morrison Knudsen argued that "DuJardin was considered ineligible for reinstatement, not because of making purely internal safety complaints, but because of using profanity and exhibiting insubordination during the May 13, 1993 incident." (Resp. Br. at 15-16.) From this statement I infer that the length of time between when Mr. DuJardin resigned and when he asked to be reinstated was not a ground for him not being reinstated. Because an issue is "material" if proof of the fact would have the effect of establishing or refuting one of the essential elements of a cause of action or the defense asserted by one of the parties, Black's Law Dictionary 505 (Abridged 5th Ed. 1983), and because the question of when Mr. DuJardin raised the issue of reinstatement will not establish or refute an essential element of Morrison Knudsen's defense, the question is not an issue of material fact.

   As previously stated, Morrison Knudsen contends that Mr. "DuJardin was considered ineligible for reinstatement, not because of making purely internal safety complaints, but because of using profanity and exhibiting insubordination during the May 13, 1993 incident." (Resp. Br. at 15-16.) From this statement, I infer that Morrison Knudsen might assert this issue as a defense in this cause of action. Accordingly, the question of whether Mr. DuJardin yelled and cursed prior to when his employment terminated is material.

   In testimony before the Arkansas Appeal Tribunal, Mr. Apa testified:

Q. When did you first learn about the stack release?

A. When two personnel came into my office, Mr. Dan Fuller, and they were informing me that allegations had been made by Mr. DuJardin as to a release of material. This is what he was claiming. And that he had subsequently cursed out a number of people as he left the site. . . .

Q. Would you say that it's not common for people to curse on the site?

A. I personally don't condone that. But my understanding is that Mr. DuJardin had cursed out each person individually and then left.

(A.A.T. at 39-41.) Mr. DuJardin testified:

Q. Did you cuss at Mr. Fuller?

A. I did not cuss at Mr. Fuller.

Q. Did you cuss at any other employees or management?

A. I did not cuss at anybody. I did not curse anybody out. Now, I may have said some curse words, but I did not direct anything at anybody.

(A.A.T. at 150.) In view of the conflicting testimony there appears to be a genuine dispute of material fact. Whether the alleged profanity occurred and whether it constitutes a ground for refusing to rehire a worker, such as Mr. DuJardin, will have to be established at an evidentiary hearing.

   WHEREFORE, for the reasons set forth above, it is ORDERED that Respondent's Motion for Summary Decision be and hereby is DENIED; and it is

   FURTHER ORDERED that the hearing will be held on Wednesday, December 15, 1993, at the National Labor Relations Board Building, Hearing Room 375, 425 West Capitol Avenue, in Little Rock, Arkansas, as previously scheduled; and it is

   FURTHER ORDERED that the facts set forth in this order are deemed established and that the hearing shall be conducted accordingly.

      DAVID A. CLARKE, JR.
      Administrative Law Judge

Washington, D.C.

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