__________ 

__________ 

 

 

 

 

______________________________________________________ 

 

 

_________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

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. TriCities 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 bythe 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 potentiallyhazardous 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 retaliatorydischarge 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 maybe 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 retaliatorydischarge 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. 

10The 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 

11The 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 undeniablycreate 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 

12The respondents relate that “the permit and order at issue during the time period 

relevant to the Complaint is 85 pages” in length. 

13See 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 

14According 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 

15According 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 

16The 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 

17As we noted in Feliciano, “[a]n aggrieved employer maythen 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