Sensient Flavors LLC v. Ind. Occupational Safety & Health Admin.

• Citation: 969 N.E.2d 1053
• Decision Date: 26 June 2012
• Docket Number: No. 49A02–1109–MC–844.,49A02–1109–MC–844.
• Parties: In re the Matter of a Search Warrant Regarding the Following Real Estate, SENSIENT FLAVORS LLC, Appellant–Defendant, v. INDIANA OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

969 N.E.2d 1053

In re the Matter of a Search Warrant Regarding the Following Real Estate, SENSIENT FLAVORS LLC, Appellant–Defendant,

v.INDIANA OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Appellee–Plaintiff.

No. 49A02–1109–MC–844.

Court of Appeals of Indiana.

June 26, 2012.

Paul L. Jefferson, Mark Stuaan, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

The Indiana Commissioner of Labor filed a petition for an anticipatory search warrant in order to conduct an administrative inspection of Sensient Flavors LLC's Indianapolis facility. Sensient opposed the search warrant and was successful in getting it quashed. The trial court later issued an amended search warrant that was more restrictive than the original. Although the search of Sensient's facility has been completed, Sensient appeals the issuance of the amended search warrant, arguing that it was not supported by probable cause and unreasonable because it did not contain any limitations regarding the scope or manner of the search. Concluding that Sensient has failed to exhaust its administrative remedies, we dismiss this appeal.

Facts and Procedural History

Sensient is a Delaware limited liability company with its principal place of business at 5600–5700 West Raymond Street in Indianapolis. Sensient manufactures and distributes proprietary flavors that are used in food and beverages. As part of its business, Sensient uses certain substances that are listed as “high priority” by the U.S. Department of Health and Human Services. One such substance is diacetyl. Appellant's App. p. 142. Diacetyl is used to add flavor and aroma to food and is typically used in microwave popcorn. The government has been investigating the use of diacetyl in facilities that manufacture food flavorings because of the dangers diacetyl poses to workers, and Sensient became a target.

The Occupational Safety and Health Act of 1970 created both The National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA). About NIOSH, The Nat'l Inst. for Occupational Safety & Health, http:// www. cdc. gov/ niosh/ about. html (last visited June 8, 2012). OSHA is in the U.S. Department of Labor and is responsible for developing and enforcing workplace safety and health regulations. Id. NIOSH is part of the Centers for Disease Control and Prevention (CDC) in the U.S. Department of Health and Human Services. Id. NIOSH is an agency established to help ensure safe and healthfulworking conditions for working men and women by providing research, information, education, and training in the field of occupational safety and health. Id.

On the state level, the Indiana Occupational Safety and Health Administration (IOSHA), which is part of the Indiana Department of Labor, is dedicated to ensuring Hoosier workplace safety and health by reducing hazards and exposures in the workplace environment that result in occupational injuries, illnesses, and fatalities. IOSHA, Ind. Dep't of Labor, http:// www. in. gov/ dol/ iosha. htm (last visited June 8, 2012).

At some point, the International Brotherhood of Teamsters Local 137 became concerned about possible respiratory problems and the use of flavoring chemicals, including diacetyl, at Sensient's facility. Accordingly, the union requested a Health Hazard Evaluation from NIOSH. NIOSH investigators visited Sensient's facility in May 2008 and performed air sampling and received records of spirometry, a type of lung-function test, in June 2008. After a delay incurred by litigation, Sensient provided additional spirometry records through September 2009 and air-sampling results through August 2009. In June 2011, NIOSH issued a forty-eight-page final Health Hazard Evaluation Report, which concluded that Sensient employees had experienced adverse respiratory conditions due to exposure to food-flavoring chemicals, including diacetyl. Appellant's App. p. 39–91.

On September 9, 2011, the Indiana Commissioner of Labor (“Commissioner”) filed a Petition for Anticipatory Search Warrant in Marion Superior Court to conduct an administrative inspection of Sensient's facility. Notably, probable cause in the criminal sense is not required for administrative search warrants. Marshall v. Barlow's, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); State v. Kokomo Tube Co., 426 N.E.2d 1338, 1343 (Ind.Ct.App.1981). That is, probable cause to conduct a nonconsensual inspection of business premises can be established by presenting specific evidence of an existing violation or by showing compliance with reasonable legislative or administrative standards for inspecting the premises in question. Barlow's, 436 U.S. at 320, 98 S.Ct. 1816;Kokomo Tube, 426 N.E.2d at 1342. Here, the Commissioner wanted to determine whether Sensient was furnishing its employees “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees” and whether Sensient was “complying with the occupational safety and health standards promulgated under the Indiana Occupational Safety and Health Act, Ind.Code § 22–8–1.1–1....” Appellant's App. p. 8.

The Commissioner sought an anticipatory search warrant because in the past Sensient had failed to cooperate with IOSHA's Compliance Safety and Health Officers (CSHOs). Id. The Petition for Anticipatory Search Warrant was supported by the affidavits of the Director of Industrial Safety and Hygiene and a CSHO. The affidavits specifically averred that IOSHA had received a referral from OSHA regarding Sensient and IOSHA wished to carry out an “unprogrammed inspection” of Sensient because of that referral.¹Id. at 12. The referral was based on NIOSH's June 2011 report that revealed Sensient employees had experienced adverse respiratory conditions due to exposure to food-flavoring chemicals. The trial court granted the search warrant that day.

But on September 12, Sensient filed an emergency motion to stay the search warrant. The trial court scheduled a hearing for the next day. At the September 13 hearing, Sensient argued that the search warrant was not supported by probable cause. The Commissioner was given additional time to supplement the documentation in support of the search warrant. On September 14, the Commissioner filed supplemental documentation in support of the search warrant, including an amended affidavit of the CSHO. The amended affidavit provides, in pertinent part:

4. That in approximately mid to late July 2011, Richard Fairfax, Deputy Assistant Secretary at federal OSHA referred the NIOSH report to my superior Jeffry Carter, Deputy Commissioner, Indiana Occupational Health and Safety Administration for an inspection regarding the findings of the 2011 NIOSH report at Sensient.

5. That NIOSH sent copies of their June 2011 final report, which is attached as Exhibit 3 and incorporated herein, to representatives at Sensient, the International Brotherhood of Teamsters Local 137, Indiana State Department of Health, and OSHA Region V office in Chicago in the summer of 2011. See page 40 of Exhibit 3 (the NIOSH report).

6. That NIOSH received a request from the local union for the Health Hazard Evaluation because it was concerned about possible respiratory problems and the use of flavoring chemicals. See page iii, Exhibit 3.

7. That the team from NIOSH that conducted the inspection at Sensient resulting in the 2011 report consisted of two industrial hygienists and two medical doctors. See Exhibit 2 page 3.

* * * * * *

9. [T]here is a national emphasis program designated by federal OSHA covering the manufacture of food flavorings containing diacetyl. Please see attached Exhibit 4 incorporated herein. A national emphasis program is used to identify and reduce or eliminate hazards associated with employee exposure to flavoring chemicals in facilities that manufacture food flavorings containing diacetyl. See, abstract page 3 of Exhibit 4.

* * * * * *

11. That documentation and information received from Mr. Fairfax included the June 2011 NIOSH report that revealed that employees have experienced adverse respiratory conditions due to exposure to food flavoring chemicals. See Exhibit 3.

12. That IOSHA has a policy of conducting inspections of referrals that allege serious health hazards as stated in the Indiana Field Inspection Reference Manual, Chapter 1, page I–11 of Exhibit 5 attached and incorporated herein.

Id. at 24–25. The June 2011 NIOSH report, which was attached to the CSHO's amended affidavit, makes the following conclusions:

The findings from our spirometry record review indicate that the flavorings manufacturing facility employees who underwent spirometry testing at the contracted clinic had 3.8 times greater prevalence of spirometric restriction than the U.S. population after adjusting for age, gender, race, smoking, and body mass index. About one-third of employees had spirometric abnormalities, most of them restrictive in nature.... Statistical modeling indicated that abnormal decline in FEV1 [forced expiratory volume in one second] and that annualized average decreases in FEV1 and FVC [forced vital capacity] were associated with working in areas with higher potential for exposure to flavoring chemicals. Employees who had ever done liquid processing had greater average annualized falls in spirometric measurements than employees who had never worked in an area with higher potential for flavoring exposure. These results suggest that the flavorings company employees are experiencing respiratory health effects related to ongoing exposures in the workplace.

Id. at 81 (emphasis added). The report also offered recommendations to Sensient on how to reduce exposure to harmful chemicals. Id. at 81–84.

At a September 14 hearing, the...