           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                                                     FILED
                                    January 2015 Term
                                                                  April 10, 2015
                                       __________
                                                                  released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                                      No. 14-0671               SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA
                                      __________

            WILLIAM FROHNAPFEL AND MARY LOU FROHNAPFEL,

                        Plaintiffs Below, Petitioners


                                           v.

     ARCELORMITTAL USA LLC AND ARCELORMITTAL WEIRTON LLC,

                    Defendants Below, Respondents


          ______________________________________________________

                Certified Question from the United States District Court
                        for the Northern District of West Virginia

                     CERTIFIED QUESTION ANSWERED
         _________________________________________________________

                              Submitted: February 25, 2015

                                 Filed: April 10, 2015


Robert J. D’Anniballe, Jr., Esq.	               Bradley K. Shafer, Esq.
Pietragallo Gordon Alfano	                      Swartz Campbell, LLC
Bosick & Raspanti, LLP	                         Wheeling, West Virginia
Weirton, West Virginia
Counsel for Petitioners	                        Raymond C. Baldwin, Pro Hac Vice
                                                Seyfarth Shaw LLP
                                                Washington, DC
                                                Counsel for Respondents



JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “A de novo standard is applied by this Court in addressing the legal

issues presented by a certified question from a federal district or appellate court.” Syl. Pt.

1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).



              2. “The rule that an employer has an absolute right to discharge an at will

employee must be tempered by the principle that where the employer’s motivation for the

discharge is to contravene some substantial public policy principle, then the employer may

be liable to the employee for damages occasioned by this discharge.” Syllabus, Harless v.

First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).



              3. “To identify the sources of public policy for purposes of determining

whether a retaliatory discharge has occurred, we look to established precepts in our

constitution, legislative enactments, legislatively approved regulations, and judicial

opinions.” Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d

606 (1992).




                                             -i­
              4. “Inherent in the term ‘substantial public policy’ is the concept that the

policy will provide specific guidance to a reasonable person.” Syl. Pt. 3, Birthisel v. Tri-

Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).



              5. An employee who alleges he or she was discharged for reporting violations

of a permit issued under authority of the West Virginia Water Pollution Control Act, W.Va.

Code §§ 22-11-1 to -30 (2014), and making complaints to his/her employer about those

permit violations, has established the predicate substantial public policy required to prima

facie prove that the employer’s motivation for the discharge was the contravention of public

policy. See Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).




                                            -ii­
LOUGHRY, Justice:


                This case is before us on certified question from the United States District

Court for the Northern District of West Virginia and presents the singular question of

whether the West Virginia Water Pollution Control Act (the “Act”) 1 establishes a substantial

public policy for purposes of undergirding a policy-based retaliatory discharge claim2 where

an employee is allegedly discharged for reporting violations of a permit issued under that

Act and making complaints to his employer about those permit violations. Having

considered this issue in conjunction with a review of both statutory and case law, we answer

the certified question in the affirmative.



                          I. Factual and Procedural Background

                Prior to his termination,3 William Frohnapfel was employed by the respondent

ArcelorMittal Weirton (“AM Weirton”), a tin plate manufacturer.4 The petitioner worked



       1
           See W.Va. Code §§ 22-11-1 to -30 (2014).
       2
           See Syllabus, Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
       3
       Mr. Frohnapfel was employed by the respondents and their predecessors from April
4, 1972, until his termination on April 18, 2013.
       4
         At the time of his termination, Mr. Frohnapfel’s employment was governed by a
collective bargaining agreement between his union, the United Steel, Paper and Forestry,
Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union,
and the respondent parent company of AM Weirton–ArcelorMittal USA. The petitioner
filed a grievance in connection with his termination; the termination was upheld.

                                             -1­
as a Technician II Operator in AM Weirton’s Environmental Control/Utilities Department.

This department was charged with oversight of B-Outfall–a portion of the AM Weirton plant

that discharges hazardous byproducts from its manufacturing process directly into the Ohio

River.



              The B-Outfall is located near water intake lines that provide drinking water

to local residents of Weirton, West Virginia, and Steubenville, Ohio. The discharge from

the B-Outfall is governed by a permit and order issued under the Act’s authority.5 Pursuant

to the Act, AM Weirton is required to monitor and make reports regarding this discharge to

the West Virginia Department of Environmental Protection (“DEP”). As part of his job, Mr.

Frohnapfel was charged with helping to ensure that AM Weirton operated in compliance

with both this permit and other applicable environmental laws, rules, and regulations.



              According to the allegations of the petitioners’ complaint, the respondents

“viewed him as a watch dog for environmental compliance and a potentially dangerous

whistleblower in regard to environmental violations.”6 Included in the complaint is a litany


         5
        According to the petitioners’ complaint, the Permit number is WV003336 and the
Order number is 6436. Those governing documents, issued under authority of the Act, are
part of a National Pollutant Discharge Elimination System created by Section 402 of the
Federal Water Pollution Control Act (known as the Clean Water Act).
         6
      Mr. Frohnapfel avers that the potentially hazardous chemicals being released into the
Ohio River from the B-Outfall include chrome, arsenic, cyanide, oil, and tin.

                                            -2­
of six incidents separate from the events that immediately preceded his termination in April

2013. The district court capsulated these allegations as follows:

              •	     In February 2009, plaintiff complained to management after
                     being instructed to “scrape labels off barrels and replace them
                     with new labels due to expiration issues”;
              •	     In March 2009, plaintiff informed management that a probe was
                     being placed in a buffer in order to conceal certain PH issues;
              •	     In June 2010, plaintiff truthfully responded to an inquiry from
                     the WVDEP concerning the dumping of hazardous waste and
                     was thereafter “summoned to the Office of the Defendants’
                     highest ranking management official located in Weirton”;
              •	     In November 2010, plaintiff complained regarding the
                     inadequacy of hazardous material incident training, and was
                     thereafter “chastised,” “disciplined,” and disqualified from
                     receiving a promotion;
              •	     In January 2011, plaintiff expressed concern regarding the lack
                     of a containment area for “Prussian Blue,” a hazardous waste;
                     and
              •	     In June 2012, plaintiff questioned a third-party vendor’s
                     practices associated with the removal of hazardous waste and
                     was thereafter harshly disciplined and temporarily suspended
                     from work.



              The events that transpired just before Mr. Frohnapfel’s termination in April

2013 had their genesis in a broken piece of machinery used at B-Outfall. As the district

court related, a group of AM Weirton employees asked Mr. Frohnapfel to present their plan

for solving the hazardous waste accumulation resulting at B-Outfall to management. When

the petitioner advised management of the employees’ proposed solution, he was told that a

plan to repair the disabled equipment was already in place. While informing his coworkers

regarding this meeting, Mr. Frohnapfel “remarked, apparently in reference to management,

                                            -3­
that ‘opinions are like assholes, everybody has one, some people have two.’” Due to an

open microphone, the petitioner’s comments were broadcast throughout the Environmental

Control/Utilities Department. As a result of the broadcast incident, the petitioner was

immediately suspended and then terminated several days later.



                 In addition to filing a grievance to protest his termination,7 the petitioners

instituted a cause of action against the respondents in the Circuit Court of Hancock County

seeking damages for retaliatory discharge and loss of consortium. The respondents removed

the case to federal court on grounds of diversity.8 By order entered on July 11, 2014, the

district court certified the following question to this Court:

                 Whether the West Virginia Water Pollution Control Act, W.Va.
                 Code §§ 22-11-1 et seq., establishes a substantial public policy
                 of West Virginia such that it may undergird a Harless claim for
                 retaliatory discharge where an employee is allegedly discharged
                 for reporting violations of a permit issued under the Act and
                 complaining to his employer about such violations?

Expressing its opinion on the issue, the district court recognized the existence of “a strong

argument that the WPCA [Act] articulates a public policy sufficient to support a Harless

retaliatory discharge claim.”




       7
           See supra note 4.
       8
           See 28 U.S.C. § 1332 (2012).

                                               -4­
                                 II. Standard of Review

               As we stated in syllabus point one of Light v. Allstate Insurance Co., 203

W.Va. 27, 506 S.E.2d 64 (1998), “[a] de novo standard is applied by this Court in

addressing the legal issues presented by a certified question from a federal district or

appellate court.” Accordingly, we proceed to consider the certified question presented by

the district court.



                                     III. Discussion

                Seeking to temper the otherwise harsh results that would obtain where a

discharge from employment was impelled by the employer’s desire to contravene public

policy, an exception to the common law doctrine of at-will employment was established.9

See Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459,


       9
         We do not opine on whether Mr. Frohnapfel qualified as an at-will employee in view
of the collective bargaining agreement that controlled the terms of his employment. While
remarking “[t]here appears to be no dispute as to whether plaintiff is an at will employee,”
the district court identified contrary authority. See Lamb v. Briggs Mfg., 700 F.2d 1092,
1093-94 (7th Cir. 1983) (applying Illinois law to decide that where employment is governed
by collective bargaining agreement that provides “proper cause” termination guarantee and
arbitral remedies, employee is not at-will employee and is prohibited from maintaining
retaliatory-discharge claim); but see Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1447
n.3 (1994) (commenting that “Illinois law now appears to permit employees covered under
a collective bargaining agreement to bring state law retaliatory discharge claims against
employers under certain circumstances” but ruling that under Missouri law, union employees
cannot bring policy-based wrongful discharge claims); see also Norris v. Hawaiian Airlines,
Inc., 842 P.2d 634 (1992) (holding that Hawaii Whistleblower’s Protection Act protects both
unionized contract employees and at-will employees from being discharged in violation of
public policy).

                                            -5­
468 (1955) (recognizing that at-will employees serve at will and pleasure of their employers

and may be discharged at any time, with or without cause). That exception, created in

Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides:

                     The rule that an employer has an absolute right to
              discharge an at will employee must be tempered by the principle
              that where the employer’s motivation for the discharge is to
              contravene some substantial public policy principle, then the
              employer may be liable to the employee for damages occasioned
              by this discharge.

Id. at 116, 246 S.E.2d at 271, syllabus.



              As the district court correctly recognized, “a Harless retaliatory discharge

claim cannot lie absent a substantial West Virginia public policy allegedly violated in

terminating the employee.” See Shell v. Metropolitan Life Ins. Co., 183 W.Va. 407, 413,

396 S.E.2d 174, 180 (1990) (recognizing that “[o]ur retaliatory discharge cases are generally

based on a public policy articulated by the legislature”). And, while the “question of what

constitutes a ‘substantial public policy principle’ . . . is not subject to a precise answer,” we

addressed both the sources of public policy and what is necessary to constitute substantial

public policy in Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d

606 (1992). Id. at 375, 424 S.E.2d at 610.



              In attempting to identify the areas from which public policy may be gleaned

in Birthisel, we relied upon the following oft-cited explanation:

                                              -6­
              “‘The sources determinative of public policy are, among others,
              our federal and state constitutions, our public statutes, our
              judicial decisions, the applicable principles of the common law,
              the acknowledged prevailing concepts of the federal and state
              governments relating to and affecting the safety, health, morals
              and general welfare of the people for whom government–with
              us–is factually established.’”

Id. at 376, 424 S.E.2d at 611 (quoting Allen v. Commercial Cas. & Ins. Co., 37 A.2d 37, 39

(N.J. 1944) (internal citations omitted)). Further guidance regarding the elusive nature of

public policy was drawn from this observation in Parnar v. Americana Hotels, Inc., 652

P.2d 625 (1982): “In determining whether a clear mandate of public policy is violated,

courts should inquire whether the employer’s conduct contravenes the letter or purpose of

a constitutional, statutory, or regulatory provision or scheme.” Id., syl. pt. 3, in part.

Borrowing from these authorities, we distilled the following standard in syllabus point two

of Birthisel: “To identify the sources of public policy for purposes of determining whether

a retaliatory discharge has occurred, we look to established precepts in our constitution,

legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt.

2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607.



              After identifying the sources of public policy in Birthisel, we considered what

is required to constitute “substantial public policy.” As an initial matter, we clarified that

our use of “substantial” to modify “public policy” in Harless was expressly “designed to

exclude claims based on insubstantial considerations.” Birthisel, 188 W.Va. at 377, 424


                                             -7­
S.E.2d at 612. Expounding further, we stated:

              The term “substantial public policy” implies that the policy
              principle will be clearly recognized simply because it is
              substantial. An employer should not be exposed to liability
              where a public policy standard is too general to provide any
              specific guidance or is so vague that it is subject to different
              interpretations.

Id. Commenting additionally on this matter in Feliciano v.7-Eleven, Inc., 210 W.Va. 740,

559 S.E.2d 713 (2001), we observed that “to be substantial, a public policy must not just be

recognizable as such but be so widely regarded as to be evident to employers and employees

alike.” Id. at 745, 559 S.E.2d at 718. Mindful of this concern, we recognized in syllabus

point three of Birthisel that “[i]nherent in the term ‘substantial public policy’ is the concept

that the policy will provide specific guidance to a reasonable person.” 188 W.Va. at 372,

424 S.E.2d at 607.



              Addressing whether the nursing regulations and general language contained

in the social workers licensing statute that the plaintiff relied upon in Birthisel met the

threshold definition of substantial public policy, we opined:

              Neither of these provisions contain any specific guidance.
              Their general admonitions as to the requirement of good care
              for patients by social workers do not constitute the type of
              substantial and clear public policy on which a retaliatory
              discharge claim can be based. If such a general standard could
              constitute a substantial public policy, it would enable a social
              worker to make a challenge to any type of procedure that the
              worker felt violated his or her sense of good service.


                                              -8­
188 W.Va. at 377-78, 424 S.E.2d at 612-13 (emphasis supplied). Of import to this Court

was the fact that neither the regulations nor the applicable licencing statutes contained any

specific provisions that addressed the allegedly improper conduct requested of the plaintiff

by her employer.10 Not only did the plaintiff fail to establish substantial public policy in

Birthisel, but she also failed to show that the actions requested of her by her employer were

contrary to statutory or regulatory law. As we recounted:

                      Here the plaintiff was not asked to falsify the patient
              files, but was asked to check each file to determine if
              information was missing from the Master Treatment plan. If
              missing information could be obtained from the patient file,
              then it was to be added to the Master Treatment plan. This
              activity violated no statute or regulation.

Id. at 379, 424 S.E.2d at 614 (emphasis supplied).



              As we observed in Birthisel, “[m]ost of our retaliatory discharge cases involve

violations of statutes that we deem to articulate a substantial public policy.” 188 W.Va. at

376, 424 S.E.2d at 611 (citing cases involving violations of the W.Va. Mine Safety Act, the

Wage and Hour Act, the Workers’ Compensation Act, and the Consumer Credit and

Protection Act). As this Court made clear in Swears v. R.M. Roach & Sons, Inc., 225 W.Va.



       10
         The plaintiff viewed her employer’s request to undertake chart reviewing efforts in
preparation for an upcoming accreditation visit as unethical in that it required a falsification
of records. The employer explained its request as seeking to comport the Master Treatment
plan–essentially a summary of treatment–with information already recorded in the daily
progress notes. See Birthisel, 188 W.Va. at 375, 424 S.E.2d at 610.

                                              -9­
699, 696 S.E.2d 1 (2010), a Harless-based action requires more than simply raising the

spectrum of a potentially governing law. “The mere citation of a statutory provision is not

sufficient to state a cause of action for retaliatory discharge without a showing that the

discharge violated the public policy that the cited provision clearly mandates.” Id. at 705,

696 S.E.2d at 7. In Swears, the former employee sought to rely on this state’s criminal laws

as the source of public policy that was violated by his termination. Rejecting the former

employee’s attempt to elevate his internally-raised concern for possible criminal conduct to

the level of public policy, this Court explained that the allegations constituted an alleged

violation of the financial interests of a private corporation. Critically, however, they did not

involve a claimed violation of public policy or anything that might be injurious to the public

good. Id.



              Turning to the case before us, the petitioners assert that the respondents

wrongfully terminated Mr. Frohnapfel for reporting violations of its permit issued under

authority of the Act and then raising concerns with AM Weirton about those permit

violations.11 In marked contrast to Swears, which involved fiduciary duties owed to a

private company, the crux of the petitioners’ claims is rooted in allegations of both public

policy violations and potential harm to a water source for some of this state’s citizenry. See


       11
         The record does not indicate whether Mr. Frohnapfel reported the alleged permit
violations to an external environmental regulator. Because of the manner in which this case
presents, we have limited information about the factual predicates underlying the complaint.

                                             -10­
225 W.Va. at 702, 696 S.E.2d at 4. For proof of the requisite public policy, the petitioners

cite to the following declaration included in the Act:

                     (a) It is declared to be the public policy of the State of
              West Virginia to maintain reasonable standards of purity and
              quality of the water of the State consistent with (1) public health
              and public enjoyment thereof; (2) the propagation and
              protection of animal, bird, fish, aquatic and plant life; and (3)
              the expansion of employment opportunities, maintenance and
              expansion of agriculture and the provision of a permanent
              foundation for healthy industrial development.
                     (b) It is also the public policy of the State of West
              Virginia that the water resources of this State with respect to the
              quantity thereof be available for reasonable use by all of the
              citizens of this State.

W.Va. Code § 22-11-2.



              While the petitioners cited only to the Act’s express declaration of policy, the

district court took judicial notice of three additional provisions of the Act as the source of

public policy applicable to this case. The first of those provisions makes it unlawful to

increase the volume or concentration of sewage or industrial wastes in excess of the

discharges or disposition specified by permit. See W.Va. Code § 22-11-8(b)(4). The second

makes the violation of a permit issued under the Act subject to a civil penalty not to exceed

$25,000 per day. See W.Va. Code § 22-11-22(a). The final provision identified by the

district court establishes a misdemeanor offense for the failure or refusal to comply with the

terms or conditions of a permit issued under the Act. See W.Va. Code § 22-11-24(a).



                                             -11­
              Viewing all of these legislative provisions together, the district court reasoned

that the Act “sets forth a specific public policy: maintaining ‘reasonable standards of purity

and quality’ of West Virginia water.” See W.Va. Code § 22-11-2. Flowing from this

overarching policy objective, the district court viewed the Act as sufficiently clear in stating

its public policy-based concerns:

              the Act regulates manufacturers’ ability to discharge hazardous
              material into West Virginia waterways by issuing permits, and
              noncompliance with a permit subjects a violator to heavy civil
              fines and potential criminal penalties. Moreover, while the
              statement of public policy is itself broad, the requirements
              imposed upon employers who hold permits issued pursuant to
              the WPCA [Act] provide specific guidance as to permitted and
              prohibited conduct. Finally, the purpose of the Act could be
              frustrated if employees who reported violations of the Act to
              environmental authorities and were terminated for doing so
              were left without a remedy. (internal citations omitted)



              Rejecting the district court’s reasoning, the respondents contend that the Act’s

statement of public policy contains only broad pronouncements that are “too general to

provide any specific guidance” and “so vague that it is subject to different interpretations.”

Birthisel, 188 W.Va. at 377, 424 S.E.2d at 612. Characterizing the Act as nebulous in terms

of expressing public policy, the respondents insist the subject legislation lacks sufficient

substance for purposes of establishing the predicate public policy the petitioners need to

pursue their retaliatory discharge action. In the same manner the standard of “good care”

was deemed too broad to serve as the source of public policy in Birthisel, the respondents


                                             -12­
maintain that the Act’s objective of maintaining reasonable standards of water purity and

quality is equally vague and imprecise. Because the necessary degree of guidance regarding

the particulars of prohibited conduct is lacking, the respondents assert they necessarily

lacked knowledge regarding the specific acts that violate the public policy created by the

Act.



                 We find these arguments to be without merit. If employers were truly without

advance notice of what actions constitute violations of the Act and/or permits issued in

conjunction with the Act, that would undeniably create grounds for challenging enforcement

of its provisions. But the case before us does not involve an employer being forced to

operate oblivious to the compliance requirements of its permit.12 As the district court

recognized, permits issued under the Act’s authority contain the necessary specificity

regarding the permissible levels of various chemical waste effluents. Moreover, it stands

to reason that a regulatory area which involves compliance with federal clean water

standards13 is necessarily so complex that the exactitudes of the governing regulations will

not typically be delineated in the governing legislation. See State ex rel. Ball v. Cummings,

208 W.Va. 393, 397, 540 S.E.2d 917, 921 (1999) (discussing framework of National

Pollutant Discharge Elimination System under which permits issue pursuant to this state’s

       12
         The respondents relate that “the permit and order at issue during the time period
relevant to the Complaint is 85 pages” in length.
       13
            See supra note 5.

                                             -13­
Water Pollution Control Act and recognizing that those permits require compliance with

specified terms and conditions). Consequently, we have no difficulty in concluding that the

Act’s referential reliance on federal regulations and guidelines for purposes of identifying

permissible levels of discharge does not render the subject legislation too vague for

interpretation or compliance purposes.



              To be clear, the respondents ground their position in the transmutable nature

of the permits rather than contending they were uninformed as to the particulars of the

permit requirements. Because permits issued under the Act are subject to modification,

suspension or revocation,14 the respondents argue that this potential for change necessarily

renders them incapable of “provid[ing] clear and consistent standards.” Given that there was

no indication that the permit at issue was in fact modified during time periods relevant to this

litigation, we find this argument to be specious at best. The mere possibility that the

quantitative levels of a particular effluent may be altered or the list of hazardous chemicals

subject to monitoring may be expanded does not ipso facto prevent the Act from presenting

standards that are sufficiently precise for purposes of demarcating public policy.



              In their attempt to persuade us that a Harless-based retaliatory discharge claim


       14
        According to the respondents, permits issued pursuant to the National Pollutant
Discharge Elimination System are subject to alteration with a minimum of twenty days
notice.

                                             -14­
cannot be based on the violation of a permit, the respondents stress that employers will be

subjected to vagaries in terms of identifying conduct prohibited under the Act. To illustrate

their point, the respondents refer to an employee’s complaint regarding an unspecified “lime

discharge.”15 This discharge, the respondents submit, may actually be in compliance with

all laws, permits, and regulations. Similarly, the respondents note that an employee’s report

of the accumulation of hazardous material may, depending on the circumstances, actually

be an allowable amount of such materials. Neither of these examples fits the parameters of

the question posed by the district court. We have not been asked to decide whether an

employer can take action against an employee who seeks on his own, separate from

government-specified standards, to be an environmental watchdog. The precise question

before us focuses solely on an employer who discharges an employee for his reporting of

violations of a permit issued under authority of the Act and for his complaints to the

employer about those same permit violations.



              In contrast to the position advocated by the respondents, we find no lack of

guidance with regard to what conduct is prohibited by the Act. The Act makes it unlawful

for an entity issued a permit under its authority to violate the provisions of that permit. See

W.Va. Code § 22-11-22(a). Given the inclusion of both civil and criminal penalties for



       15
        According to the allegations of the complaint, Mr. Frohnapfel raised a concern on
April 14, 2013, that AM Weirton committed an improper lime discharge.

                                             -15­
violating permits issued pursuant to the Act, there can be little doubt as to the seriousness

with which the Legislature views the need to protect this state’s water sources. With

sufficient clarity, the Legislature pronounced a specific statement of public policy, the

objective of which is to maintain reasonable standards of water purity and quality for the

public’s health and enjoyment. See W.Va. Code § 22-11-2. That laudable policy objective

was imbued with the necessary teeth of enforcement by the inclusion of both civil and

criminal penalties for violations of the Act. Consequently, we are compelled to reject the

respondents’ argument that the Act cannot serve as a source of substantial public policy

based upon its lack of “specific guidance to a reasonable person.” Birthisel, 188 W.Va. at

372, 424 S.E.2d at 607, syl. pt. 3, in part.



               The employers of this state, including AM Weirton, have long been on notice

that they cannot terminate an employee for his or her efforts to uphold this state’s laws.16

See Harless, 162 W.Va. at 116, 246 S.E.2d at 271, syllabus; see also Kanagy v. Fiesta

Salons, Inc., 208 W.Va. 526, 533, 541 S.E.2d 616, 623 (2000) (“There is a substantial public


       16
         The respondents urge us to find significance in the fact that the Federal Water
Pollution Control Act contains an anti-retaliatory provision while our Act does not. See 33
U.S.C. § 1367 (2012) (providing that “[n]o 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 . . . has filed, instituted . . or has testified or is about
to testify in any proceeding resulting from the administration or enforcement of the
provisions of this chapter”). In this Court’s opinion, the non-inclusion of an anti-retaliatory
provision does not foreclose a determination that the Act expresses substantial public policy
for purposes of undergirding a Harless-based retaliatory discharge action.

                                               -16­
interest in discouraging illegal behavior.”). For more than twenty years, the provisions of

the Act have governed the acts of enterprises such as AM Weirton who utilize this state’s

waterways to discard the chemical residue of their manufacturing processes. Given the

clarity of the Act’s provisions that make it unlawful to violate a permit issued under the Act,

it cannot be doubted that AM Weirton was fully apprised of its permit-related

responsibilities under the Act as well as the penalties for non-compliance. Furthermore, it

simply cannot be disputed that those compliance requirements are rooted in substantial

public policy objectives whose aim is directed at providing for and promoting the public’s

health and well-being. Accordingly, we hold that an employee who alleges he or she was

discharged for reporting violations of a permit issued under authority of the West Virginia

Water Pollution Control Act, W.Va. Code §§ 22-11-1 to -30 (2014), and making complaints

to his employer about those permit violations, has established the predicate substantial public

policy required to prima facie prove that the employer’s motivation for the discharge was

the contravention of public policy. See Harless, 162 W.Va. 116, 246 S.E.2d 270 (1978).17




       17
        As we noted in Feliciano, “[a]n aggrieved employer may then rebut the presumption
of a wrongful discharge by demonstrating that it had a plausible and legitimate business
reason for terminating its employee.” 210 W.Va. at 751, 559 S.E.2d at 724; see Syl. Pt. 2,
Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).

                                             -17­
                       IV. Conclusion

For the foregoing reasons, we answer the certified question in the affirmative.



                                                  Certified question answered.




                              -18­
