Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as Amended, 2808-2826 [2011-828]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Rules and Regulations]
[Pages 2808-2826]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-828]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 24

[Docket Number: OSHA-2007-0028]
RIN 1218-AC25


Procedures for the Handling of Retaliation Complaints Under the 
Employee Protection Provisions of Six Environmental Statutes and 
Section 211 of the Energy Reorganization Act of 1974, as Amended

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This document provides the final text of regulations governing 
the employee protection (or ``whistleblower'') provisions of Section 
211 of the Energy Reorganization Act of 1974, as amended, (``ERA''), 
implementing the statutory changes enacted into law on August 8, 2005, 
as part of the Energy Policy Act of 2005. The regulations also finalize 
changes to the procedures for handling retaliation complaints under 
Section 211 of the ERA and the six environmental whistleblower statutes 
that were designed to make them as consistent as possible with the more 
recently promulgated procedures for handling retaliation complaints 
under other whistleblower provisions administered by the Occupational 
Safety and Health Administration (OSHA).

DATES: This final rule is effective on January 18, 2011.

FOR FURTHER INFORMATION CONTACT: Nilgun Tolek, Director, Office of the 
Whistleblower Protection Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3610, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202) 693-2199.

SUPPLEMENTARY INFORMATION:

I. Background

    The Energy Policy Act of 2005, Public Law 109-58, was enacted on 
August 8, 2005. Among other provisions, this new law amended the 
employee protection provisions for nuclear whistleblowers under Section 
211 of the ERA, 42 U.S.C. 5851; the statutory amendments affect only 
ERA whistleblower complaints. The changes to the regulations also 
affect the six environmental whistleblower statutes because the same 
procedures generally apply to each of the statutes covered in 29 CFR 
part 24. Because OSHA recognizes the importance of consistency in the 
procedures governing the whistleblower statutes that it administers, it 
has tried to standardize these regulations with other whistleblower 
regulations promulgated by OSHA to the extent possible within the 
bounds of the statutory language. We have removed from this background 
section as unnecessary and confusing the statement in the interim final 
rule that the 2005 ERA amendments apply to claims filed on or after 
August 8, 2005; OSHA takes no position in these regulations on the 
applicability of the 2005 ERA amendments to complaints filed with the 
Department before August 8, 2005.

II. Summary of Statutory Changes to ERA Whistleblower Provisions

    Section 629 of Public Law 109-58 (119 Stat. 785) amended Section 
211 of the ERA, 42 U.S.C. 5851, by making the changes described below.

Revised Definition of ``Employer''

    Section 211 of the ERA defined a covered ``employer'' to include: 
Licensees of the Nuclear Regulatory Commission (``Commission''); 
applicants for such licenses, and their contractors and subcontractors; 
contractors and subcontractors of the Department of Energy, except 
those involved in naval nuclear propulsion work under Executive Order 
12344; licensees of an

[[Page 2809]]

agreement State under Section 274 of the Atomic Energy Act of 1954; 
applicants for such licenses, and their contractors and subcontractors. 
The August 2005 amendments revised the definition of ``employer'' to 
extend coverage to employees of contractors and subcontractors of the 
Commission; the Commission; and the Department of Energy.

De Novo Review

    The August 2005 amendments added a provision for de novo review by 
a United States District Court in the event that the Secretary has not 
issued a final decision within one year after the filing of a 
complaint, and there is no showing that the delay is due to the bad 
faith of the complainant.

III. Summary of Regulations and Rulemaking Proceedings

    On August 10, 2007, the Occupational Safety and Health 
Administration published in the Federal Register an interim final rule 
revising the rules that implemented Section 211 of the ERA, and the 
whistleblower provisions of the environmental statutes listed in part 
24, 72 FR 44956-44969. In addition to promulgating the interim final 
rule, OSHA's notice included a request for public comment on the 
interim rules by October 9, 2007.
    In response, two organizations--the Government Accountability 
Project (``GAP'') and the National Whistleblower Center (``NWC'')--and 
four individuals--William H. Ewing, Esq.; Richard R. Renner, Esq., 
Jason M. Zuckerman, Esq., and James F. Newport--filed comments with the 
agency within the public comment period. OSHA has reviewed and 
considered these comments and now adopts this final rule which has been 
revised in part to address problems perceived by the agency and the 
commenters.

General Comments

    Richard R. Renner, Jason M. Zuckerman, and William H. Ewing 
commented generally that they believe the interim final regulations 
frustrate the purposes of the statutes to protect the public from 
environmental and nuclear safety dangers. They further commented that 
the interim final rule will deter complainants who have filed 
complaints under Section 211 of the ERA from seeking de novo relief in 
district courts. Renner and Zuckerman stated that previously the 
National Employment Lawyers Association helped initiate a liaison 
process with the Office of Administrative Law Judges (OALJ) and with 
OSHA ``to establish avenues of communication among policy makers, 
whistleblower groups and employer groups'' and expressed disappointment 
that the Department did not use that process to collect information and 
make decisions prior to issuing an interim final rule. Although no 
formal liaison process has been established, OSHA has met with 
representatives of the National Employment Lawyers Association and 
looks forward to further dialogue with its stakeholders.
    The provisions in the interim final rule governing the filing of 
actions for de novo review in district court were modeled on the 
regulations implementing the whistleblower provisions of Section 806 of 
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII 
of the Sarbanes-Oxley Act of 2002 (``SOX''), 18 U.S.C. 1514A, codified 
at 29 CFR part 1980. OSHA does not believe that those regulations have 
deterred complainants from taking actions to district court under the 
de novo review provision. Nevertheless, based on a review of the 
comments and the agency's further consideration, OSHA has made some 
changes to the preamble and regulatory provisions that address an 
employee's option of proceeding in district court.

IV. Summary and Discussion of Regulatory Provisions

    The regulatory provisions in this part have been revised to be 
consistent with other whistleblower regulations promulgated by OSHA to 
the extent possible within the bounds of the statutory language of the 
ERA and the six environmental statutes listed in section 24.100(a). The 
section numbers of these regulations also have been changed to 
correspond with the numbering under the regulations implementing other 
whistleblower statutes administered by OSHA. Although these regulations 
are intended to be consistent with the majority of OSHA's other 
whistleblower regulations, they refer to actions brought under the 
whistleblower provisions of the ERA and the six environmental statutes 
as actions alleging ``retaliation'' rather than ``discrimination.'' 
This change in terminology, which is not intended to have substantive 
effect, reflects that claims brought under these whistleblower 
provisions are prototypical retaliation claims. A retaliation claim is 
a specific type of discrimination claim that focuses on actions taken 
as a result of an employee's protected activity rather than as a result 
of an employee's characteristics (e.g., race, gender, or religion).
    Richard R. Renner and Jason Zuckerman commented that it would be 
helpful if the Department clarified in this Summary and Discussion of 
Regulatory Provisions that adverse actions in Title VII retaliation 
cases are not limited to tangible employment actions and that the 
burdens of proof in ERA cases, which were altered by statute in 1992, 
differ from the burdens of proof generally applicable to traditional 
discrimination cases. Renner and Zuckerman suggested that these 
principles can be clarified by including within the regulations 
definitions of ``unfavorable personnel action,'' ``clear and convincing 
evidence,'' and ``contributing factor.'' OSHA does not believe that 
these clarifications are necessary in the regulations. However, OSHA 
has included a discussion of these phrases in the preamble. Also, as 
explained in more detail below, for clarity and consistency, the final 
regulations use the phrase ``adverse action'' throughout, rather than 
the phrase ``unfavorable personnel action.'' In addition, both the 
preamble and the regulations clearly distinguish between the burdens of 
proof that apply under Section 211 of the ERA and the burdens of proof 
that apply under the six environmental whistleblower statutes.

Subpart A--Complaints, Investigations, Issuance of Findings

Section 24.100 Purpose and Scope
    This section (formerly section 24.1) describes the purpose of the 
regulations implementing the whistleblower provisions of seven statutes 
enforced by the Secretary of Labor and provides an overview of the 
procedures covered by the regulations. The section has been revised to 
refer to the Federal Water Pollution Control Act, instead of the Clean 
Water Act. They are synonymous, but the Office of Administrative Law 
Judges and the Administrative Review Board (ARB) generally use Federal 
Water Pollution Control Act, and we do so here for the sake of 
consistency. In addition, the section has been renumbered to conform to 
the numbering system for other whistleblower regulations promulgated by 
OSHA. Thus, for example, former section 24.1 becomes current section 
24.100. No comments were received on this section.
Section 24.101 Definitions
    This new section includes general definitions applicable to the 
whistleblower provisions of the seven statutes listed in section 
24.100(a). This section does not include program-specific definitions, 
which may be

[[Page 2810]]

found in the statutes. For purposes of clarity, OSHA has added a 
definition of ``business days'' to this definitional section. The term 
means days other than Saturday, Sunday, and Federal holidays.
    One comment was received regarding the definitions contained in 
section 24.101. GAP commented that the definition of ``Respondent'' 
should include individuals other than employers, because the Solid 
Waste Disposal Act (SWDA), 42 U.S.C. 6971(a), provides that ``[n]o 
person shall fire, or in any other way discriminate against * * * any 
employee'' who has engaged in protected activity, and the Federal Water 
Pollution Control Act (FWPCA), 33 U.S.C. 1367, and the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 42 
U.S.C. 9610, have similar provisions. As GAP acknowledges in its 
comments, however, the ARB has held that notwithstanding the use of 
``person'' in the FWPCA, SWDA, and CERCLA in place of ``employer,'' the 
statutes nevertheless require that the respondent have an employment 
relationship with the complainant or act in the capacity of an 
employer, that is, exercise control over the terms, conditions, or 
privileges of the complainant's employment. See, e.g., Culligan v. 
American Heavy Lifting Shipping Co., No. 03-046 (ARB June 30, 2004). 
Accordingly, OSHA does not believe that changes to the definition of 
Respondent are necessary.
Section 24.102 Obligations and Prohibited Acts
    This section (formerly section 24.2) describes the activities that 
are protected under the statutes covered by this part, and the conduct 
that is prohibited in response to any protected activities. The 
language generally has been revised to conform to the language in the 
majority of the other whistleblower regulations promulgated by OSHA, to 
the extent possible within the bounds of the statutory language of the 
ERA and the six environmental statutes. The changes are not intended to 
be substantive. References to the statutes listed in section 24.100(a) 
have deleted the adjective ``Federal'' as unnecessary. Paragraph (e) 
has been moved from former section 24.9. We note that the ARB 
interprets the phrase ``deliberate violations'' for the purpose of 
denying protection to an employee as including an element of 
willfulness. See Fields v. U.S. Dep't of Labor Admin. Review Bd., 173 
F.3d 811, 814 (11th Cir. 1999) (petitioners knowingly conducted 
unauthorized and potentially dangerous experiments).
    One comment was received regarding the obligations and prohibited 
acts contained in section 24.102. GAP commented that in section 
24.102(a), the term ``employer'' is too restrictive with respect to the 
FWPCA, CERCLA, and SWDA. As discussed above, the ARB has held that the 
use of ``person'' in the FWPCA, SWDA, and CERCLA in place of 
``employer'' still requires that the respondent have an employment 
relationship with the complainant or act in the capacity of an 
employer. Accordingly, OSHA does not believe that use of the term 
``employer'' is too restrictive in section 24.102(a). We note that 
former section 24.2 also used the term ``employer'' in describing 
obligations and prohibited acts. GAP also commented that the phrase 
``or otherwise retaliate against'' should be changed to the statutory 
language ``or otherwise discriminate against'' to be consistent with 
the statutes, and that the language in section 24.102(c) describing the 
prohibitions under the ERA also should be changed from ``retaliate'' to 
``discriminate,'' because `` `[d]iscrimination' and `retaliation' are 
not synonyms.'' According to GAP, the latter term ``requires a showing 
of animus; the former only disparate treatment.'' As noted in this 
preamble, the use of the term ``retaliation'' in lieu of 
``discrimination'' in these regulations is not meant to have a 
substantive distinction. Rather, the change in nomenclature reflects 
that claims brought under these whistleblower provisions are 
prototypical retaliation claims. Use of the term ``retaliation'' does 
not preclude a complaint based on an allegation of ``disparate 
treatment,'' as suggested by GAP. A discrimination claim based on 
``disparate treatment'' requires a showing of intent to discriminate. 
See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1283-84 (11th 
Cir. 2000). Similarly, a retaliation claim requires a showing of intent 
to retaliate. See Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 
(8th Cir. 2006) (``The ultimate question in any retaliation case is 
whether the employer's adverse action against the employee was 
motivated by retaliatory intent.''). Accordingly, OSHA does not believe 
that it is necessary to change its use of the word ``retaliation,'' 
which is an accurate description of the type of discrimination claim 
that is at issue under the whistleblower provisions of the ERA and the 
six environmental statutes.
Section 24.103 Filing of Retaliation Complaint
    This section (formerly section 24.3) has been revised to be 
consistent with the regulatory procedures implementing other 
whistleblower provisions administered by OSHA. Thus, the section 
heading has been changed from ``Complaint'' to ``Filing of retaliation 
complaint.'' Also, paragraph (c) has been changed to paragraph (b) and 
the heading has been changed from ``Form of Complaint'' to ``Nature of 
filing.'' Paragraph (d) has been changed to paragraph (c); and 
paragraph (b) has been changed to paragraph (d) and the language has 
been changed to conform with that appearing in most of OSHA's other 
whistleblower regulations. Finally, paragraph (e) ``Relationship to 
section 11(c) complaints'' has been added to explain the policy of the 
Secretary regarding the relationship between complaints filed under the 
statutes listed in section 24.100(a) and a complaint under Section 
11(c) of the Occupational Safety and Health Act. No comments were 
received on this section.
    The final regulation in paragraph (b) has been revised to provide 
that no particular form of complaint is required. Paragraph (b) 
specifies that a complaint may be made orally or in writing. It also 
states that when a complaint is made orally, OSHA will reduce the 
complaint to writing and that if a complainant is not able to file the 
complaint in English, the complaint may be filed in any language. These 
changes are consistent with decisions of the ARB, which have permitted 
oral complaints. See, e.g., Roberts v. Rivas Environmental Consultants, 
Inc., 96-CER-1, 1997 WL 578330, at *3 n.6 (Admin. Review Bd. Sept. 17, 
1997) (complainant's oral statement to an OSHA investigator, and the 
subsequent preparation of an internal memorandum by that investigator 
summarizing the oral complaint, satisfies the ``in writing'' 
requirement of CERCLA, 42 U.S.C. Sec.  9610(b), and the Department's 
accompanying regulations in 29 CFR part 24); Dartey v. Zack Co. of 
Chicago, No. 82-ERA-2, 1983 WL 189787, at *3 n.1 (Sec'y of Labor Apr. 
25, 1983) (adopting administrative law judge's findings that 
complainant's filing of a complaint to the wrong DOL office did not 
render the filing invalid and that the agency's memorandum of the 
complaint satisfied the ``in writing'' requirement of the ERA and the 
Department's accompanying regulations in 29 CFR part 24). Moreover, 
this is consistent with OSHA's longstanding practice of accepting oral 
complaints filed under Section 11(c) of the Occupational Safety and 
Health Act of 1970, 29 U.S.C. 660(c); Section 211 of the Asbestos 
Hazard Emergency Response Act of 1986, 15 U.S.C. 2651; Section 7 of the 
International Safe Container Act of 1977, 46 U.S.C. 80507; and the 
Surface

[[Page 2811]]

Transportation Assistance Act of 1982, 49 U.S.C. 31105.
Section 24.104 Investigation
    This section (formerly section 24.4) has been revised so that its 
language will conform more closely to the language of the majority of 
OSHA's other whistleblower regulations. Additionally, former paragraph 
(b) of section 24.5 has been revised and moved to this section, and 
former paragraph (d) of section 24.4 has been revised and moved to 
section 24.105, where it more appropriately appears under ``Issuance of 
findings and orders.''
    Paragraphs (e) and (f) of section 24.104 set forth the standards of 
causation that OSHA applies to cases under the six environmental 
whistleblower statutes and the ERA. When adjudicating whistleblower 
complaints under the six environmental whistleblower statutes, the 
Department has relied on standards derived from discrimination case law 
as set forth under Mt. Healthy City School District Board of Education 
v. Doyle, 429 U.S. 274 (1977); Price Waterhouse v. Hopkins, 490 U.S. 
228 (1989); Texas Department of Community Affairs v. Burdine, 450 U.S. 
248 (1981); and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 
See Abdur-Rahman v. Dekalb County, ARB Case Nos. 08-003, 10-074, 2010 
WL 2158226, at *6 (Admin. Review Bd. May 18, 2010) (motion for 
reconsideration pending); Dartey v. Zack Co., No. 82-ERA-2, 1983 WL 
189787, at *3-*4 (Sec'y of Labor Apr. 25, 1983). Under these standards, 
a complainant may prove retaliation either by showing that the 
respondent took the adverse action because of the complainant's 
protected activity or by showing that retaliation was a motivating 
factor in the adverse action (i.e. a ``mixed-motive analysis''). See, 
e.g., Abdur-Rahman, 2010 WL 2158226, at *6 (FWPCA case applying a mixed 
motive analysis); Higgins v. Alyeska Pipeline Serv. Corp., ARB Case No. 
01-022, 2003 WL 21488356, at *4 (Admin. Review Bd. June 27, 2003) 
(explaining burdens of proof applicable to claims under TSCA, SWDA, and 
CAA); Masek v. The Cadle Co., ARB Case No. 97-069, 2000 WL 562699, at 
*9-*10 (Admin. Review Bd. Apr. 28, 2000) (explaining burdens of proof 
applicable to claims under FWCPA, TSCA, CAA and CERCLA); Combs v. 
Lambda Link, ARB Case No. 96-066, 1997 WL 665483, at *1-*2 (Admin. 
Review Bd. Oct. 17, 1997) (applying mixed-motive analysis under CAA, 
TSCA, FWCPA).
    If the complainant demonstrates that the respondent acted at least 
in part for prohibited reasons, the burden shifts to the respondent to 
prove by a preponderance of the evidence, that it would have reached 
the same decision even in the absence of protected activity. See, e.g., 
Dixon v. U.S. Dep't of Interior, Bureau of Land Mgmt., ARB Case No. 06-
14706-160, 2008 WL 4124113, at *9-*10 (Admin. Review Bd. Aug. 28, 2008) 
(applying ``mixed motive'' analysis to claims under CERCLA and SDWA); 
Dartey, 1983 WL 189787, at *4 (discussing Mt. Healthy, 429 U.S. at 
287). In such cases, the employer ``bears the risk that `the influence 
of legal and illegal motives cannot be separated.' '' Mackowiak v. 
Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1164 (9th Cir. 1984) (ERA case) 
(which quoted NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983)).
    At the investigation stage, OSHA will dismiss the complaint unless 
the complainant makes a prima facie showing that protected activity was 
at least a motivating factor in the alleged adverse action. The 
complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a motivating factor in the adverse action.
    The complainant will be considered to have met the required showing 
if the complaint on its face, supplemented as appropriate through 
interviews of the complainant, alleges the existence of facts and 
either direct or circumstantial evidence sufficient to give rise to an 
inference that the respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
motivating factor in the adverse action. The required showing may be 
satisfied, for example, if the complainant shows that the adverse 
action took place shortly after the protected activity, giving rise to 
the inference that it was a motivating factor in the adverse action. 
OSHA will dismiss the complaint if a preponderance of the evidence 
shows that the respondent would have taken the same adverse action in 
the absence of the complainant's protected activity.
    The Department recognizes that after promulgation of the interim 
final rule, the Supreme Court issued Gross v. FBL Financial Services, 
Inc., 129 S. Ct. 2343 (2009). The Court held in Gross that the 
prohibition against discrimination ``because of'' age in the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 623(a)(1), requires 
a plaintiff to ``prove that age was the `but-for' cause of the 
employer's adverse decision.'' 129 S. Ct. at 2350 (citation omitted). 
The Court rejected arguments that a plaintiff could prevail in an 
action under the ADEA by showing that discrimination was a motivating 
factor for the adverse decision, after which the employer had the 
burden of proving that it would have reached the same decision for non-
discriminatory reasons. Id. at 2351-52.
    The Department does not believe that the Supreme Court's decision 
in Gross affects the long-standing burden-shifting framework applied in 
mixed-motive cases under the six environmental whistleblower statutes 
as reflected in the Department's regulations and case law. The Supreme 
Court's Gross decision involved an age discrimination case under the 
ADEA, not retaliation cases filed by individuals under the 
environmental statutes. The Supreme Court cautioned in Gross itself 
that ``[w]hen conducting statutory interpretation, we `must be careful 
not to apply rules applicable under one statute to a different statute 
without careful and critical examination.' '' Id. at 2349 (quoting Fed. 
Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008)); see Smith v. 
Xerox Corp., 602 F.3d 320 (5th Cir. 2010) (ADEA analysis in Gross is 
inapplicable to Title VII anti-retaliation cases); But see, e.g., 
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) 
(applying Gross reasoning to Americans with Disabilities Act).
    In addition, as the Court noted in Gross, its decision did not 
conflict with, or undermine, prior Supreme Court decisions applying the 
mixed motive burden-shifting framework to Constitutional cases and 
cases under the National Labor Relations Act (NLRA). Gross, 129 S. Ct. 
at 2352 n.6 (citing Transp. Mgmt. Corp., 462 U.S. at 401-403; and Mt. 
Healthy City Bd. of Educ., 429 U.S. at 287); but see Fairley v. 
Andrews, 578 F.3d 518 (7th Cir. 2009) (applying Gross reasoning to 
First Amendment case), cert. denied, 130 S. Ct. 3320 (2010). The Court 
recognized the appropriateness of deferring to the National Labor 
Relations Board's (NLRB's) interpretation of the NLRA to allow a mixed 
motive burden-shifting analysis. Gross, 129 S. Ct. at 2352 n.6 (``The 
case involving the NLRA did not require the Court to decide in the 
first instance whether burden shifting should apply as the Court 
instead deferred to

[[Page 2812]]

the National Labor Relations Board's determination that such a 
framework was appropriate'') (citation omitted); see Hunter v. Valley 
View Local Schs., 579 F.3d 688, 691-92 (6th Cir. 2009) (deferring to 
Department of Labor's Family and Medical Leave Act (FMLA) regulations 
in holding that prohibition in FMLA against interference with the 
exercise of rights permits mixed-motive analysis after Gross). With 
regard to the environmental whistleblower provisions, as with the 
NLRB's interpretation of the NLRA, the Secretary's longstanding 
administrative case law permits a mixed-motive analysis. This case law 
is due deference as the Secretary's reasonable interpretation of the 
environmental whistleblower statutes. Knox v. U.S. Dep't of Labor, 434 
F.3d 721, 724 (4th Cir. 2006) (``We review the ARB's interpretation of 
the CAA under the deferential standard set forth in Chevron U.S.A., 
Inc. v. Natural Resources Defense Council, Inc.''); Anderson v. U.S. 
Dep't of Labor, 422 F.3d 1155, 1173, 1181 (10th Cir. 2005) (providing 
Chevron deference to the ARB's construction of the environmental 
whistleblower statutes); Reid v. Sec'y of Labor, No. 95-3648, 1996 WL 
742221, at *1 (6th Cir. 1996) (unpubl'd) (106 F.3d 401 (Table)) 
(deferring to Secretary's reasonable construction of the term employee 
under CAA); Mackowiak, 735 F.2d at 1164 (deferring to Secretary's 
application of mixed-motive analysis under pre-amendment version of the 
ERA).
    Finally, the Court in Gross based its decision that a mixed-motive 
analysis was inapplicable to the ADEA in part on its determination that 
Congress decided not to amend the ADEA to clarify that a mixed-motive 
analysis applied when it amended both the ADEA and Title VII in the 
Civil Rights Act of 1991 (Title VII). Gross, 129 S. Ct. at 2349 
(``Unlike Title VII, the ADEA's text does not provide that a plaintiff 
may establish discrimination by showing that age was simply a 
motivating factor. Moreover, Congress neglected to add such a provision 
to the ADEA when it amended Title VII to add Sec. Sec.  2000e-2(m) and 
2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in 
several ways'') (citations omitted). In so finding, the Court noted 
that `` `negative implications raised by disparate provisions are 
strongest' when the provisions were `considered simultaneously when the 
language raising the implication was inserted.' '' Id. (quoting Lindh 
v. Murphy, 521 U.S. 320, 330 (1997)). Congress did not consider 
amendments to the environmental whistleblower provisions when it 
amended Title VII and the ADEA in the Civil Rights Act of 1991. Thus, 
the environmental whistleblower statutes do not raise the strong 
negative implications that the Supreme Court noted in Gross.
    The Department therefore believes that the application of a mixed-
motive analysis to the environmental whistleblower statutes continues 
to be appropriate based on the ARB's longstanding decisions 
interpreting these statutes, is consistent with Congress' intent and is 
reasonable in the context of the remedial purposes of these laws to 
safeguard workers from retaliation for protected activity involving the 
public health and the environment.
    Paragraph (f) of this section, which sets forth procedures that 
apply only in ERA cases, applies the ERA's statutory burdens of proof. 
Since the 1992 amendments to the ERA, its whistleblower provisions, in 
contrast to the other whistleblower provisions listed under section 
24.100(a), have contained specific statutory standards for the 
dismissal and adjudication of complaints. See 42 U.S.C. 5851(b)(3)(A) 
through (b)(3)(D); Public Law 102-486, Sec.  2902, 106 Stat. at 3123-
3124. Because the ERA expressly sets forth the burdens of proof that 
apply to retaliation claims under that statute, the holding in Gross 
does not apply to the ERA. The ERA requires that a complainant make an 
initial prima facie showing that his or her protected activity was ``a 
contributing factor'' in the adverse action alleged in the complaint, 
i.e., that the protected activity, alone or in combination with other 
factors, affected in some way the outcome of the employer's decision. 
42 U.S.C. 5851(b)(3)(A). If the complainant does not make the prima 
facie showing, the investigation must be discontinued and the complaint 
dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 
(10th Cir. 1999) (noting that the distinct burden-shifting framework of 
the 1992 ERA amendments served a ``gatekeeping function'' that 
``stemmed frivolous complaints''). Even in cases where the complainant 
successfully makes a prima facie showing, the investigation must be 
discontinued if the employer demonstrates, by clear and convincing 
evidence, that it would have taken the same adverse action in the 
absence of the protected activity. Thus, under the ERA, the Secretary 
must dismiss the complaint and not investigate (or cease investigating) 
if either: (1) The complainant fails to meet the prima facie showing 
that protected activity was a contributing factor in the adverse 
action; or (2) the employer rebuts that showing by clear and convincing 
evidence that it would have taken the same adverse action absent the 
protected activity. Assuming that an investigation proceeds beyond the 
gatekeeping phase, the ERA specifies statutory burdens of proof that 
require an employee to prove that the alleged protected activity was a 
``contributing factor'' to the alleged adverse action. 42 U.S.C. 
5851(b)(3)(C). If the employee proves that the alleged protected 
activity was a contributing factor to the adverse action, the employer, 
to escape liability, must prove by ``clear and convincing evidence'' 
that it would have taken the same action in the absence of the 
protected activity. A contributing factor is ``any factor, which alone 
or in combination with other factors, tends to affect in any way the 
outcome of the decision.'' Marano v. Dep't of Justice, 2 F.3d 1137, 
1140 (Fed. Cir. 1993) (Whistleblower Protection Act, 5 U.S.C. 
1221(e)(1)); cf. Trimmer, 174 F.3d at 1101 (the 1992 amendments aimed, 
in part, ``to make it easier for [ERA] whistleblowers to prevail in 
their discrimination suits'')). In proving that protected activity was 
a contributing factor in the adverse action, ``a complainant need not 
necessarily prove that the respondent's articulated reason was a 
pretext in order to prevail,'' because a complainant alternatively can 
prevail by showing that the respondent's `` `reason, while true, is 
only one of the reasons for its conduct,' '' and that another reason 
was complainant's protected activity. See Klopfenstein v. PCC Flow 
Techs. Holdings, Inc., No. 04-149, 2006 WL 1516650, *13 (ARB May 31, 
2006) (discussing contributing factor test under SOX) (citing Rachid v. 
Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
    The ERA statutory burdens of proof do not address the evidentiary 
standard that applies to a complainant's proof that protected activity 
was a contributing factor in an adverse action. Adhering to traditional 
Title VII discrimination law, it is the Secretary's position that the 
complainant must prove by a ``preponderance of the evidence'' that his 
or her protected activity contributed to the adverse action; otherwise, 
the burden never shifts to the employer to establish its ``clear and 
convincing evidence'' defense. See, e.g., Dysert v. U.S. Sec'y of 
Labor, 105 F.3d 607, 609 (11th Cir. 1997) (upholding Department's 
interpretation of 42 U.S.C. 5851(b)(3)(C), as requiring an employee to 
prove by a preponderance of the evidence that

[[Page 2813]]

protected activity was a contributing factor in an adverse action); see 
also Trimmer, 174 F.3d at 1102 (``[o]nly if the complainant meets his 
burden [of proving by a preponderance of the evidence that he engaged 
in protected activity that was a contributing factor in an adverse 
action] does the burden then shift to the employer to demonstrate by 
clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of such behavior.''); Stone 
& Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 
1997) (under section 5851, an employee must first persuade the 
Secretary that protected activity was a contributing factor in an 
adverse action and then, if the employee succeeds, the employer must 
prove by clear and convincing evidence that it would have taken the 
same action in the absence of protected activity).
    The 1992 ERA amendments altered the employer's burden in 
traditional ``mixed motive'' cases; under the ERA, once the Secretary 
concludes that the employer acted for both prohibited and legitimate 
reasons, the employer can escape liability only by proving by clear and 
convincing evidence that it would have reached the same decision even 
in the absence of the protected activity. 42 U.S.C. 5851(b)(3)(D). The 
``clear and convincing evidence'' standard is a higher burden of proof 
for employers than the former ``preponderance of the evidence'' 
standard. See 138 Cong. Rec. 32,081, 32,082 (1992). Comments were 
received on section 24.104 from GAP, NWC, William H. Ewing, Richard R. 
Renner, and Jason M. Zuckerman. GAP, Ewing, Renner, and Zuckerman 
commented that section 24.104(b) should require that the respondent's 
responses to the complaint be served on the complainant. According to 
GAP, while the procedures currently require the complainant to provide 
information that can be reviewed by the respondent, they do not require 
the respondent to share information with the complainant. Ewing, 
Renner, and Zuckerman commented that investigations would be improved 
if complainants were given copies of the respondents' responses. OSHA 
believes that these concerns are valid and has specified in the 
regulation that the agency will provide to the complainant (or the 
complainant's legal counsel if complainant is represented by counsel) a 
copy of all of respondent's submissions to the agency that are 
responsive to the complainant's whistleblower complaint. Before 
providing such materials to the complainant or the complainant's legal 
counsel, the agency will redact them, if necessary, in accordance with 
the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable 
confidentiality laws. The agency expects that sharing information with 
complainants in accordance with this new provision will enhance OSHA's 
ability to conduct full and fair investigations and permit the 
Assistant Secretary to more thoroughly assess defenses raised by 
respondents.
    Commenting on section 24.104(c), Renner and Zuckerman commented 
that it is important for employee witnesses of respondents to have the 
option of meeting privately with the OSHA investigator because they may 
be reluctant to speak to investigators for fear of retaliation. While 
OSHA does not believe that any changes to its regulations are 
necessary, it is OSHA's policy to meet privately with non-management 
employees. The facts and circumstances of each case will be considered 
in determining whether an employee is a non-management employee. In 
addition, the whistleblower provisions of the six environmental 
statutes and the ERA protect management employees to the same extent 
that they protect non-management employees. Thus, where the complainant 
is a management employee, it is OSHA's policy to meet privately with 
the complainant.
    GAP objected to OSHA's use in sections 24.104(d) and (e) of the 
terms ``unfavorable personnel action'' and ``adverse personnel 
action,'' because those terms suggest that only actions taken by an 
employer's personnel or human resources departments are actionable. 
OSHA does not believe that the reference to ``personnel action'' in 
sections 24.104(d) and (e) of the interim final rule suggested that 
only adverse actions taken by personnel or human resources departments 
are actionable. However, for clarity and consistency, the final 
regulatory text has been changed to use ``adverse action'' throughout.
    GAP also commented with respect to section 24.104(e)(4) that to 
refuse to investigate or discontinue an investigation before all of the 
evidence is reviewed by OSHA is ``inconsistent with the letter and 
spirit of the employee protection provision of the ERA,'' and that only 
where there is no evidence of protected activity should an 
investigation be either not conducted or discontinued. Moreover, GAP 
commented that ``[t]he regulations must specify that investigators pay 
particular attention to pretext in the form of misuse of policies or 
unequal enforcement of policies against those who engage in protected 
activity.'' OSHA does not believe that these comments require revisions 
to the regulations. The language contained in section 24.104(e)(4) 
reflects the statutory language of the ERA. See 42 U.S.C. 5851(b)(3)(A) 
and (3)(B). OSHA conducts fair and impartial investigations of 
whistleblower complaints. In evaluating the merits of a complaint, 
investigators credit only explanations for adverse action taken by an 
employer that are supported by the evidence.
    NWC commented that these regulations should adopt the statutory ERA 
burdens of proof for complaints filed under the six environmental 
statutes, because since the 1992 ERA amendments, Congress has applied 
the ERA burdens of proof to other whistleblower statutes that it has 
enacted or amended, including the Pipeline Safety Improvement Act of 
2002 (``PSIA''), 49 U.S.C. 60129; SOX; the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (``AIR21''), 49 U.S.C. 
42121; and the Surface Transportation Assistance Act of 1982 
(``STAA''), 49 U.S.C. 31105. NWC commented in this regard that the 
burdens of proof currently applied to the six environmental 
whistleblower acts are not statutory, but are based on employment 
discrimination law (Title VII), and that using the ERA burdens of proof 
for the six environmental statutes would serve the interests of 
justice. However, absent specific statutory direction, OSHA does not 
believe it is appropriate to apply the ERA's burdens of proof to the 
six environmental statutes.
Section 24.105 Issuance of Findings and Orders
    The procedures set forth in this section formerly appeared under a 
paragraph of section 24.4, the Investigations section. This new section 
was created for purposes of clarification and consistency with a 
majority of the other whistleblower regulations promulgated by OSHA. 
The former regulations provided that the Assistant Secretary would 
issue a ``Notice of Determination'' at the conclusion of the 
investigation, or upon dismissal of a complaint. These regulations no 
longer use the term ``Notice of Determination.'' Instead, the 
regulations refer to the issuance of findings and orders, the 
nomenclature used in most of OSHA's other whistleblower regulations. 
This change in nomenclature is not intended to be substantive.
    The 30-day timeframe for completion of the investigation has been 
retained because it is a statutory requirement under the majority of 
the whistleblower

[[Page 2814]]

statutes covered by this part (the Solid Waste Disposal Act, the 
Federal Water Pollution Control Act, and the Comprehensive 
Environmental Response, Compensation and Liability Act have no 
timeframe). The current regulations provide a 5-business-day timeframe 
for filing objections to the findings. These new regulations have been 
changed to provide that if no objections to the Assistant Secretary's 
findings and order are filed within 30 days of their receipt, the 
findings and order of the Assistant Secretary will become the final 
order of the Secretary. Thus, the timeframe for objecting to the 
findings and/or order and for requesting a hearing has been extended 
from 5 business days to 30 days. The Secretary is aware that, since the 
ERA, the Clean Air Act (``CAA''), the Safe Drinking Water Act 
(``SDWA''), and the Toxic Substances Control Act (``TSCA'') provide 
that the Secretary should issue a final decision within 90 days of the 
filing of the complaint, allowing the parties 30 days in which to 
object to the Assistant Secretary's findings and any order issued may 
have an impact on the Department's meeting the 90-day timeframe. 
Although the ERA amendments in 2005 did not change the 90-day 
timeframe, the Secretary believes that in amending the ERA in 2005, 
Congress recognized that it appropriately could take up to one year to 
complete the investigatory and adjudicative processing of a 
whistleblower complaint (i.e., issue a final decision of the Secretary) 
under these environmental statutes. Accordingly, the Secretary believes 
that allowing 30 days for a party to object to the Assistant 
Secretary's findings and request a hearing is warranted. Not only does 
the extension make the regulations more consistent with those 
implementing the majority of the other whistleblower statutes 
administered by OSHA, it also offers the parties a more reasonable 
timeframe in which to consider whether to appeal the Assistant 
Secretary's findings.
    With regard to this section, GAP, William H. Ewing, Richard R. 
Renner and Jason M. Zuckerman expressed approval for OSHA's decision to 
increase the time period for seeking a hearing from five business days 
to 30 days. In addition, GAP, Ewing, Renner, and Zuckerman commented 
that in section 24.105(b), the rule should specifically require service 
on the attorney of record for each party (if the party has counsel). 
Ewing, Renner, and Zuckerman commented that alternatively, the rule 
should allow objections within 30 days of the last date of service, 
when the party and his or her attorney are served at different times. 
Although it is already OSHA's policy to send its findings to the 
complainant and the respondent by certified mail with copies to their 
respective attorneys, OSHA has revised the regulations to require 
service on the attorney of record.

Subpart B--Litigation

Section 24.106 Objections to the Findings and Order and Request for a 
Hearing
    Formerly, the procedures for requesting a hearing before an 
administrative law judge (``ALJ'') were set forth under section 24.6. 
As indicated above, to be effective, objections to the findings of the 
Assistant Secretary must be in writing and must be filed with the Chief 
Administrative Law Judge, U.S. Department of Labor, 800 K Street, NW., 
Washington, DC 20001 within 30 days of receipt of the findings. The 
date of the postmark, facsimile transmittal, or e-mail communication is 
considered the date of the filing; if the objection is filed in person, 
by hand-delivery or other means, the objection is filed upon receipt. 
The filing of objections is also considered a request for a hearing 
before an ALJ. Although the parties are directed to serve a copy of 
their objections to the other parties of record, as well as the OSHA 
official who issued the findings and order, the Assistant Secretary, 
and the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, 200 Constitution Ave., NW., Room N-2716, 
Washington, DC 20210, the failure to serve copies of the objections to 
the other parties of record does not affect the ALJ's jurisdiction to 
hear and decide the merits of the case. See Shirani v. Calvert Cliffs 
Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, *7 (ARB Oct. 
31, 2005).
    GAP commented that the language in section 24.106(a) needs to be 
clarified because it is unclear whether detailed objections, which are 
unnecessary since an administrative hearing is de novo, must accompany 
a hearing request. GAP suggested that the regulation be changed to 
state that ``it is sufficient for an objecting party to request a 
hearing.'' OSHA has considered this concern and does not believe that 
changes to the rule are necessary or that the suggested change would 
add helpful clarification; the rule contains no requirement that a 
party file detailed objections to request a hearing.
Section 24.107 Hearings
    This section has been revised to conform to the majority of the 
other whistleblower regulations promulgated by OSHA. The interim final 
rule adopted the rules of practice of the Office of Administrative Law 
Judges at 29 CFR part 18, subpart A. In order to assist in obtaining 
full development of the facts in whistleblower proceedings, however, 
the interim final rule provided that formal rules of evidence do not 
apply. The section specifically provides for consolidation of hearings 
if both the complainant and respondent object to the findings and/or 
order of the Assistant Secretary. Otherwise, this section no longer 
addresses procedural issues, e.g., place of hearing, right to counsel, 
procedures, evidence and record of hearing, oral arguments and briefs, 
and dismissal for cause, because the Office of Administrative Law 
Judges has adopted its own rules of practice that cover these matters. 
In order for hearings to be conducted as expeditiously as possible, and 
particularly in light of the provision in the ERA allowing complainants 
to seek a de novo hearing in Federal court if the Secretary has not 
issued a final decision within one year of the filing of the complaint, 
this section in the interim final rule provided that the ALJ has broad 
authority to limit discovery. The preamble noted, for example, that an 
ALJ may limit the number of interrogatories, requests for production of 
documents, or depositions allowed. The preamble also noted that an ALJ 
may exercise discretion to limit discovery unless the complainant 
agrees to delay filing a complaint in Federal court for some definite 
period of time beyond the one-year point; and that if a complainant 
seeks excessive or burdensome discovery under the ALJ's rules and 
procedures at part 18 of Title 29, or fails to adhere to an agreement 
to delay filing a complaint in Federal court, a district court 
considering a request for de novo review might conclude that such 
conduct resulted in a delay due to the claimant's bad faith.
    Former paragraphs (f) and (g) of this section have been moved to 
section 24.108.
    Comments on section 24.107 were received from GAP, NWC, William H. 
Ewing, James F. Newport, Richard R. Renner, and Jason M. Zuckerman. GAP 
commented that this section should be rewritten to de-emphasize the 
importance of an expeditious hearing. According to GAP, limiting 
discovery injures complainants to a greater extent than respondents 
because the documents needed to prove their cases

[[Page 2815]]

are in the possession of the respondents. Similarly, NWC, Ewing, 
Newport, Renner, and Zuckerman opposed the last sentence of section 
24.107(b), which provides ALJs with broad discretion to limit discovery 
to expedite hearings. NWC commented that there is no legal basis for 
treating discovery in whistleblower cases differently from how it is 
treated in Title VII cases and that it is inconsistent with the 
interests of justice and Congressional intent to limit the ability of 
whistleblowers to obtain evidence in discovery while holding them to 
the same evidentiary burden applicable in Title VII cases. Ewing, 
Renner, and Zuckerman suggested that instead of limiting discovery, 
hearings could be expedited by requiring parties to comply with the 
initial disclosure requirements under Federal Rules of Civil Procedure 
26(a)(1), by shortening the time permitted for discovery, and by 
providing that ALJs can make adverse inferences of unlawful retaliation 
based on a respondent's failure to respond fully and completely to 
discovery requests. They also commented that hearings could be 
expedited by requiring parties to provide discovery responses in 
searchable electronic forms when a party has the responsive information 
in such forms. GAP also commented that the Department should clarify 
that it will not be considered bad faith ``to seek discovery; seek 
reasonable delays to allow discovery; or to accommodate the schedules 
of the parties, their counsel or the ALJ.'' Suggesting that most delays 
in administrative cases occur either at the investigative stage or 
during ARB review, GAP added that complainants should not be penalized 
for necessary delays at the hearing stage.
    The provisions and statements to which GAP, NWC, Ewing, Newport, 
Renner, and Zuckerman object were intended by OSHA to implement 
Congress's intent that administrative whistleblower hearings under the 
ERA proceed expeditiously. See 42 U.S.C. 5851(b)(2)(A) and (b)(4). OSHA 
believes that the short time frames provided under the whistleblower 
statutes generally, as well as the provision in Section 211 of the ERA 
providing for de novo review in district court, illustrate a 
congressional intent that the Department expedite its administrative 
hearings and procedures. Nevertheless, after carefully considering the 
comments, OSHA has decided to remove the regulatory provision in the 
rule stating that ALJs have broad discretion to limit discovery. The 
provision essentially reiterates authority that ALJs currently possess 
under their procedural rules at 29 CFR 18.14--18.21, which permit 
judges to limit discovery in appropriate circumstances as well as to 
make adverse inferences where parties fail to comply with their 
discovery orders. Accordingly, the provision is not necessary. In 
response to GAP's comments, OSHA also has eliminated from the preamble 
the suggestion that a complainant's attempts to engage in extensive 
discovery when prosecuting or defending a claim before an ALJ might 
constitute a presumption of bad faith delay. And while OSHA agrees that 
it would be beneficial for parties to provide discovery responses in 
searchable electronic formats, it does not believe that it is 
appropriate for these regulations to specify how discovery in a 
particular case should proceed. The final rule now adopts the rules of 
evidence of the Office of Administrative Law Judges at 29 CFR part 18, 
subpart B, as well as the rules of practice at subpart A. Because it is 
no longer necessary for this rule to address evidentiary matters, 
paragraph (d) of this section has been deleted.
    NWC commented regarding the preamble's discussion of this section 
that OSHA should not permit an employee to enter into an agreement to 
delay filing a complaint in district court because the jurisdictional 
time period for filing such an action cannot be altered by regulation. 
Rather, NWC commented that OSHA should add to section 24.107 a 
procedure in cases where third-party witnesses refuse to testify that 
permits employees to seek stays of their administrative proceedings so 
that they may file district court complaints once the one-year ``kick-
out'' period has passed. NWC believes that such a procedure would 
encourage third-party witnesses who cannot be compelled by subpoena to 
testify in a whistleblower case to voluntarily appear before an ALJ 
proceeding. While third-party witnesses may be more inclined to 
voluntarily testify at ALJ hearings as an alternative to being 
compelled to testify in district court pursuant to a subpoena, OSHA 
does not believe that a special regulatory procedure to enable 
complainants to seek stays prior to filing in district court is 
necessary; the regulations do not prohibit an employee from seeking a 
stay from an ALJ based on his or her intention to file a de novo action 
in district court.
    Finally, James F. Newport commented that the new rule shifts the 
cost of attending hearings to the complainant by removing the 
requirement that the hearing be held within 75 miles of the 
complainant's residence (see former section 24.6(c)). Newport commented 
that this change could discourage complainants from pursuing a case 
because of the financial burden. OSHA does not believe that the removal 
of the requirement that the hearing be held within 75 miles of the 
complainant's residence will discourage complainants from pursuing a 
case due to financial burden. This rule provides that the rules of 
practice and procedures for administrative hearings before the OALJ 
should apply to ALJ hearings. The OALJ's rules of practice and 
procedure provide, at 29 CFR 18.27(c): ``Unless otherwise required by 
statute or regulations, due regard shall be given to the convenience of 
the parties and the witnesses in selecting a place for the hearing.'' 
This same provision has governed the scheduling of hearings under 
regulations implementing the whistleblower protection provisions of 
AIR21, 29 CFR part 1979; SOX, 29 CFR part 1980; and PSIA, 29 CFR part 
1981. No evidence has been submitted to suggest that complainants have 
been discouraged from pursuing cases under those statutes out of 
concern for the potential location of the hearing.
Section 24.108 Role of Federal Agencies
    This new section was added to conform these regulations to the 
majority of OSHA's other whistleblower regulations. As noted above, the 
substance of this section formerly was set forth under paragraphs (f) 
and (g) of section 24.6, the section covering hearings. No substantive 
changes are intended. Under the ERA and the environmental whistleblower 
statutes, OSHA does not ordinarily appear as a party in the proceeding. 
The Secretary has found that in most whistleblower cases, parties have 
been ably represented and the public interest has not required the 
Department's participation. Nevertheless, the Assistant Secretary, at 
his or her discretion, may participate as a party or amicus curiae at 
any time in the administrative proceedings. For example, the Assistant 
Secretary may exercise his or her discretion to prosecute the case in 
the administrative proceeding before an ALJ; petition for review of a 
decision of an ALJ, including a decision based on a settlement 
agreement between the complainant and the respondent, regardless of 
whether the Assistant Secretary participated before the ALJ; or 
participate as amicus curiae before the ALJ or in the ARB proceeding. 
Although we anticipate that ordinarily the Assistant Secretary will not 
participate, the Assistant Secretary may choose to

[[Page 2816]]

do so in appropriate cases, such as cases involving important or novel 
legal issues, large numbers of employees, alleged violations which 
appear egregious, or where the interests of justice might require 
participation by the Assistant Secretary. The Environmental Protection 
Agency, the Nuclear Regulatory Commission, and the Department of 
Energy, at those agencies' discretion, also may participate as amicus 
curiae at any time in the proceedings.
    NWC commented that when a State agency is named as a party, OSHA 
should be required to intervene or participate as a party in the 
proceeding. In support of this comment, NWC stated that the public 
interest would be served if OSHA intervened in every case in which a 
State agency is a named respondent because Congress intended that the 
whistleblower provisions of the six environmental acts cover State 
agencies. Richard R. Renner and Jason M. Zuckerman commented that OSHA 
should consider intervening on behalf of complainants, especially where 
a complainant is pro se, disputing OSHA's statement in the preamble 
that ``in most whistleblower cases, parties have been ably represented 
and the public interest has not required the Department's 
participation.''
    OSHA continues to believe that its participation as a routine 
matter in all whistleblower cases is neither necessary nor an effective 
use of its resources. Nevertheless, as noted above, it is OSHA's policy 
to consider participating in cases in which the Assistant Secretary 
considers the agency's participation to be in the interests of justice. 
The inability of complainants to pursue their own actions against State 
employers and their lack of representation by counsel are among the 
factors that OSHA considers when exercising its discretion to intervene 
as a party or as an amicus.
Section 24.109 Decision and Order of the Administrative Law Judge
    This section sets forth the content of the decision and order of 
the ALJ, and includes the standard for finding a violation under the 
environmental statutes and the ERA. The section further provides that 
the Assistant Secretary's determination to dismiss the complaint 
without an investigation or without a complete investigation pursuant 
to section 24.104 is not subject to review. Thus, paragraph (c) of 
section 24.109 clarifies that the Assistant Secretary's determinations 
on whether to proceed with an investigation under the ERA and whether 
to make particular investigative findings under any of the statutes 
subject to this part are discretionary decisions not subject to review 
by the ALJ. The ALJ hears cases de novo and, therefore, as a general 
matter, may not remand cases to the Assistant Secretary to conduct an 
investigation or make further factual findings. Paragraph (c) further 
clarifies that the ALJ will either hear a case on the merits or dispose 
of the matter without a hearing if appropriate. A full discussion of 
the burdens of proof used by the Department of Labor to resolve 
whistleblower cases under this part is set forth above in the 
discussion of section 24.104.
    This section also has been revised to eliminate the requirement 
under the ERA for the ALJ to issue a preliminary order of reinstatement 
separate from the findings. The section clarifies that when an ALJ's 
decision finds that the complaint has merit and orders relief, the 
order will be effective immediately upon its receipt by the respondent, 
except for that part of the order awarding compensatory damages. 
Congress intended that whistleblowers under the ERA be reinstated and 
provided additional interim relief based upon the ALJ's order even 
while the decision is on review with the ARB. The previous regulations 
have caused confusing delays to the complainant's right to immediate 
reinstatement. See, e.g., McNeill v. Crane Nuclear, Inc., ARB Case No. 
02-002, 2002 WL 31932543, at *1-*2 (Admin. Review Bd. Dec. 20, 2002). 
The Secretary intends that, by eliminating any requirement that the ALJ 
``shall also issue a preliminary order providing [all of the] relief'' 
specified in the recommended order before an interim order becomes 
effective, confusion will be avoided and congressional intent to have 
complainants promptly reinstated based upon a meritorious ALJ decision 
will be better effectuated. Id. Furthermore, the ALJ's order will be 
effective immediately whether or not the ALJ designates the decision 
and/or order as recommended.
    The substance of the rest of this section was formerly found in 
section 24.7. The requirement that the ALJ issue a decision within 20 
days after the conclusion of the hearing has been eliminated because 
procedures for issuing decisions, including their timeliness, are 
addressed by the Rules of Practice and Procedure for Administrative 
Hearings Before the Office of Administrative Law Judges at 29 CFR 
18.57.
    GAP commented that the language in section 24.109(b) discussing the 
burdens of proof should be clarified. GAP commented that the regulation 
should be changed to state affirmatively with respect to the 
respondent's burden that ``relief must be ordered unless'' the 
respondent carries its burden of proof, rather than to state that 
``relief may not be ordered'' if the respondent demonstrates by clear 
and convincing evidence under the ERA, or by preponderance of the 
evidence under the environmental statutes, that it would have taken the 
same action in the absence of protected activity. The language used in 
the regulation, however, accurately reflects the statutory language in 
section 211 of the ERA and, consistent with that language, the 
regulation retains language indicating that relief may not be ordered 
if the respondent proves by a preponderance of the evidence under the 
environmental statutes that it would have taken the same action in the 
absence of protected activity.
Section 24.110 Decision and Orders of the Administrative Review Board
    The decision of the ALJ is the final decision of the Secretary if 
no timely petition for review is filed with the ARB. Upon the issuance 
of the ALJ's decision, the parties have 10 business days within which 
to petition the ARB for review of that decision, or it becomes the 
final decision of the Secretary and is not subject to judicial review. 
The date of the postmark, facsimile transmittal, or e-mail 
communication will be considered to be the date of filing; if the 
petition is filed in person, by hand-delivery or other means, the 
petition is considered filed upon receipt. The appeal provisions in 
this part have been revised, consistent with the majority of OSHA's 
other whistleblower regulations, to provide that an appeal to the ARB 
is no longer a matter of right but is accepted at the discretion of the 
ARB. Congress intended these whistleblower actions to be expedited and 
this change may assist in furthering that goal. The parties should 
identify in their petitions for review the legal conclusions and orders 
to which exception is taken, or the exceptions will ordinarily be 
deemed waived. The ARB has 30 days to decide whether to grant the 
petition for review. If the ARB does not grant the petition, the 
decision of the ALJ becomes the final decision of the Secretary. The 
ERA, CAA, SDWA, and TSCA contain a 90-day timeframe for issuing final 
agency decisions. Notwithstanding this short timeframe, the Secretary 
believes that it is appropriate to give the ARB 30 days in which to 
decide whether to grant review; as stated above, the Secretary believes 
that in amending the ERA in August 2005, Congress recognized that

[[Page 2817]]

the Department appropriately could take up to one year to complete the 
investigatory and adjudicative processing of a whistleblower complaint 
under these statutes. If a timely petition for review is filed with the 
ARB, any relief ordered by the ALJ, except for that ordered under the 
ERA, is inoperative while the matter is pending before the ARB. The 
relief ordered by the ALJ under the ERA is effective immediately except 
for that portion awarding compensatory damages. This section further 
provides that, when the ARB accepts a petition for review, the ALJ's 
factual determinations will be reviewed under the substantial evidence 
standard.
    This section also provides that in the exceptional case, the ARB 
may grant a motion to stay an ALJ's order of relief under the ERA, 
which otherwise will be effective while review is conducted by the ARB. 
The Secretary believes that a stay of an ALJ's order of relief under 
the ERA only would be appropriate where the respondent can establish 
the necessary criteria for equitable injunctive relief, i.e., 
irreparable injury, likelihood of success on the merits, and a 
balancing of possible harms to the parties and