US v. LASCO INDUSTRIES, DIV. OF PHILLIPS INDUS.

• Decision Date: 18 September 1981
• Docket Number: No. CA3-81-0244.,CA3-81-0244.
• Citation: 531 F. Supp. 256
• Parties: UNITED STATES of America v. LASCO INDUSTRIES, DIVISION OF PHILLIPS INDUSTRIES, INC.
• Court: U.S. District Court — Northern District of Texas

531 F. Supp. 256

UNITED STATES of America v. LASCO INDUSTRIES, DIVISION OF PHILLIPS INDUSTRIES, INC.

No. CA3-81-0244.

United States District Court, N. D. Texas, Dallas Division.

August 24, 1981.

On Motion of Notice September 18, 1981.

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Paula Mastropieri-Billingsley, Asst. U.S. Atty., Dallas, Tex., for plaintiff.

James B. Harris and Timothy R. McCormick, Thompson & Knight, Dallas, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

ROBERT W. PORTER, District Judge.

This case is before the Court on the petition of the United States of America to enforce a subpoena duces tecum issued by the National Institute for Occupational Safety and Health ("NIOSH") to the Respondent Lasco Industries, Division of Phillips Industries, Inc. ("Lasco"). Jurisdiction is predicated upon 29 U.S.C. § 657(b) and 28 U.S.C. §§ 1337, 1345. NIOSH was established by the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq. (1976). NIOSH has the authority to "develop and establish recommended occupational safety and health standards" and conduct research concerning occupational safety and health. 29 U.S.C. §§ 671(c)(1), 669(a)(2). Section 669(a) of Title 29 specifies the various types of research to be conducted under the Act. Although that section is directed to the Secretary of Health, Education, and Welfare, NIOSH is authorized to "perform all functions of the Secretary of Health, Education, and Welfare under sections 669 and 670." 29 U.S.C. § 671. Under section 669(b) the Secretary is authorized to make inspections and question employers and employees as provided in section 657 of the Act in order to carry out his functions and responsibilities under the Act. Section 657 provides the Secretary (and NIOSH) with the power of compulsory process as well as the availability of enforcement proceedings in United States district courts.

I. FACTS

The underlying facts involved in this action are not complicated, and neither are they hotly disputed. On October 6th, 1980, Dr. Kurt, a Dallas toxicologist, contacted NIOSH concerning a possible occupational health problem. He reported that he had recently examined four patients who exhibited symptoms of neurological damage, and that all four worked at the Lasco Industries plant in Lancaster, Texas when the symptoms developed. Dr. John Horan, a medical officer for NIOSH, was assigned to the case. On October 23rd, 1980 he flew to Dallas and interviewed Dr. Kurt. At that time he also interviewed and examined the four individuals whom Dr. Kurt had spoken of, and their medical files. The records and interviews indicated that these four individuals, three men and one woman, all 25-33 years old, were healthy prior to their employment at the Lasco facility. During their employment at the facility, they were exposed to potentially toxic substances, including a substance by the name of LUCEL-7. LUCEL-7 is a brand name for a 2-t-butyazo-2-hydroxy-5-methylhexane, which Lasco used as a foaming agent in the production of reinforced plastic bathtubs. Peripheral neuropathy was diagnosed in all four of the exposed individuals. Since then, Dr. Horan has contacted several other individuals employed at the Lasco plant with similar symptoms.

Of the original four individuals who were examined by Dr. Horan, three requested a health hazard evaluation under section 669(a)(6) of the Act to evaluate the potential toxicity of two substances, LUCEL-7 and methyl ethylketone peroxide (MEKP), used or found in the Lasco Lancaster facility. On October 27th, 1980 Dr. Horan went to the Lasco Lancaster facility and spoke with Donald Bateman, the plant manager. At this time Bateman advised Horan that the Lasco plant had discontinued its use of LUCEL-7 as of April, 1980. Horan furnished Bateman with the health hazard evaluation request. Bateman escorted Horan, and a NIOSH industrial hygienist, Harry Markel, on an initial walk through survey of the facility, and allowed Horan and Markel to take photographs. After the walk through, Horan requested that Bateman and Lasco provide NIOSH with the medical and personnel records for all past and current employees. Bateman discussed the request with his superiors, and declined to turn the records over to NIOSH.

MEKP is still being used in the Lasco Lancaster facility. LUCEL-7 is not. Despite the fact that Bateman informed Horan that LUCEL-7 is no longer present in the Lasco Lancaster facility, Horan decided to conduct a more general investigation into the effects of LUCEL-7. As part of this research investigation, the manufacturer of LUCEL-7 has provided NIOSH with the identities of approximately 100 former and 12 recent industrial users of the substance. NIOSH is currently contacting the 100 former users for information and intends to conduct a physical inspection and detailed record review of at least one other user, in addition to Lasco.

On October 31st, 1980, Anthony Robbins, M.D., Director of NIOSH, issued a subpoena duces tecum to Lasco Industries, Inc. "in connection with an investigation under section 20(a) of the Occupational Safety and Health Act (29 U.S.C. 669(a)) concerning the health effects of LUCEL-7." It called for the production of the following documents:

1. The personnel records, including accident reports, of all current and former production-line employees of Lasco Industries' Lancaster facility.

2. The medical records, including any preemployment physicals, of all current and former production-line employees of Lasco Industries Lancaster facility.

3. Any record(s) indicating the chemicals used at the Lancaster facility during the period Lucel-7 was used at the Lancaster facility.

4. All medical and personnel records of those Lasco Industries employees from its Anaheim California, Three Rivers Michigan, and Cordele Georgia facilities who were involved in the training program concerning the use and application of Lucel-7 conducted at the Lancaster facility.

Prior to the initiation of the Lasco investigation, NIOSH contacted the Occupational Safety and Health Administration (OSHA) to see if any OSHA inspection at Lasco had produced any information useful to NIOSH. OSHA had conducted a compliance inspection at Lasco in June 1980. OSHA performed environment sampling for several substances, including MEKP. The concentrations of MEKP were found to be less than the applicable OSHA standard.

II. RESPONDENT'S MOTION TO DISMISS

The Respondent, Phillips Industries, Inc. moves to have this action dismissed on four distinct grounds. First, it is asserted that the United States has no cause of action under section 657(b) of the Act as only the Director for NIOSH can bring an action to enforce a NIOSH subpoena. Second, Respondent argues that service upon "Lasco Industries, Inc." was improper as to Phillips Industries. Third, Respondent claims that the subpoena is invalid because it was issued pursuant to section 669(a)(6) as a "health hazard evaluation" of a "substance normally found in the place of employment," when in fact it was undisputed that LUCEL-7 was no longer utilized in the Lasco plant. Finally, Respondent claims that the complaint should be dismissed because the United States failed to join the Director of NIOSH as a party.

A. The United States as a real party in interest.

Respondent claims that only the Director of NIOSH, and not the United States, has a cause of action under section 657 of the Act, and therefore this Court has no subject matter jurisdiction over this action. I disagree for three reasons. One, "most of the courts that have faced this question have held that even though the agency might have proceeded on its own behalf, the United States is also a real party in interest." 6 C. Wright & A. Miller, Federal Practice and Procedure § 1553 (1971). Second, jurisdiction in this action is also predicated upon section 1345 of the Judicial Code. Marshall v. Gibson's Products, Inc. 584 F.2d 668 (5th Cir. 1978). Third, in at least three similar actions, suit was brought in the name of the United States to enforce NIOSH subpoenas under 29 U.S.C. § 657(b) and, although courts may raise the issue of subject matter jurisdiction sua sponte, the issue has never been considered. See United States v. Westinghouse Electric Corp., 483 F.Supp. 1265 (W.D.Pa.1980), remanded, 638 F.2d 570 (3rd Cir. 1980); United States v. McGee Industries, Inc., 439 F.Supp. 296 (E.D.Pa.1977), aff'd mem., 568 F.2d 771 (3rd Cir. 1978); United States v. Allis-Chalmers Corp., 498 F.Supp. 1027 (E.D.Wis.1980). As to Respondent's contention that this action should be dismissed due to Petitioner's failure to join the Director of NIOSH as an indispensable party, I note that either the United States or the Director of NIOSH may bring this action, and therefore, neither is an indispensable party under Rule 19.

B. Statutory authority for the subpoena.

Respondent claims that the subpoena in question was issued pursuant to a "health hazard evaluation" request and therefore the agency's statutory authority is found in section 669(a)(6) of the Act. Subsection (a)(6) authorizes NIOSH to "determine following a written request by any employer or authorized representative of employees, specifying with reasonable particularity the grounds on which the request is made, whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found." It is undisputed that LUCEL-7 was no longer "normally" present in the workplace as of April, 1980. The NIOSH investigation into LUCEL-7 at the Lasco Lancaster plant was initiated subsequent to the discontinuance of the substance. Hence, Respondent claims that NIOSH is without statutory authority to conduct a "health hazard evaluation" pursuant to section 669(a)(6), citing Oklahoma Press Co. v. Walling, 327 U.S. 186, 209-10, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946) (administrative subpoena can only be enforced if the subject of the investigation...