Actions for Discriminations under the Comprehensive Environmental Response, Compensation and Liability Act
CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, provides a "Superfund" for cleaning up hazardous waste spills. Uncontrolled or abandoned waste sites and accidents, spills, and other emergency releases into the environment of contaminants and pollutants are covered by CERCLA.
Under Section 10 of CERCLA, employees are protected from discrimination by their employer for participating in a proceeding to enforce any CERCLA requirement. Section 10, 42 U.S.C.S. § 9610(a), provides:
No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.
The Environmental Protection Agency administers the general provisions of CERCLA. However, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 10 occurs (although that deadline may be tolled if the discrimination is of a type, such as blacklisting or discriminatory working conditions, that may be considered continuing in nature).
Section 10 of CERCLA protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the provisions of CERCLA. An employee's complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under CERCLA.
Actionable discrimination under the Act is viewed broadly and includes termination from employment and any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee's participation in a CERCLA proceeding.
Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted, is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.
Remedies for the employee include abatement of the discrimination through affirmative action including, but not limited to, rehiring or reinstatement of the employee or representative of employees to former positions with compensation. Costs and expenses will be assessed against the violator if the employee has to seek enforcement of the abatement order.