DATE: July 3, 1995
CASE NO. 94-TSC-5

IN THE MATTER OF

JUDY K. STEPHENSON,
   COMPLAINANT,

v.

NATIONAL AERONAUTICS & SPACE
ADMINISTRATION; MARTIN MARIETTA SERVICES,
INC., MARTIN MARIETTA CORPORATION;
CATHY KRAMER; CAROLYN HUNTOON; HENRY FLAGG, JR
JENNIFER VILLARREAL; AND SAM PEREZ,
   RESPONDENTS.

BEFORE:   THE SECRETARY OF LABOR

   Complainant Judy K. Stephenson brings the captioned complaint of unlawful discrimination under the employee protection provisions of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622 (1988), and the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988). In decisions issued on June 8, 21, and 27, 1994, the Administrative Law Judge (ALJ) recommended that the complaint be dismissed against all Respondents as follows: (1) Complainant and Respondents Martin Marietta Services, Inc., and Martin Marietta Corporation (Martin Marietta) had agreed to a settlement that was fair, adequate and reasonable; (2) the individually named Respondents were employees not subject to suit under the TSCA and CAA which prohibit retaliation by "employer[s];" (3) the National Aeronautics & Space Administration (NASA), an agency of the Federal Government, was immune from suit under the TSCA; and (4) the complaint failed to state a claim under the CAA. I previously adopted the ALJ's recommendation that the settlement between Complainant and the Martin Marietta Respondents be approved, and that portion of the complaint has been dismissed. June 19, 1995, Partial Decision and Order Approving Settlement. I also agree with the ALJ's remaining findings with the exception that Complainant failed to state a claim under the CAA. Accordingly, the recommended decisions issued on June 21 and 27, 1994, generally are adopted as specified below.

   Failure to state a claim under the Clean Air Act

   The ALJ found that the consolidated complaint of unlawful discrimination, necessitated by "the confusion created by numerous amendments" to the original informal complaint, "fail[ed] to allege or state facts showing the statutory basis for complainant's claim under [the] CAA." June 27, 1994, Recommended Order Dismissing Complaint at 5-6. I disagree.

   Admittedly, Complainant nowhere alleged discretely that she was subject to discrimination because of a complaint about the emission of dangerous substances into the atmosphere. See, e. g., Nathaniel v. Westinghouse Hanford Company, Case No. 91-SWD-2, Sec. Dec., Feb. 1, 1995, slip op. at 7-9; Johnson v. Old Dominion Security, Case Nos. 86-CAA-3, et seq., Sec. Dec., May 29, 1991, slip op. at 13-15 and n.8 ("substance of complaint determines whether activity is protected under particular statute at issue"); Aurich v. Consolidated Edison Co. of New York, Inc., Case No. 86-CAA-2, Sec. Rem. Ord., Apr. 23, 1987 (Secretary focused on subject matter of complaint, distinguishing between complaints restricted solely to occupational safety and health and those touching public safety and health or the environment).

   Rather, the complaint concerned astronauts being exposed, within the space capsule, to ethylene oxide and freon. On first impression the complaint appears concerned with occupational, rather than public, safety and health. Ethylene oxide and freon, however, are precisely the types of substances reasonably perceived as subject to CAA regulation, which is sufficient in these circumstances to bring the complaint within the purview of that Act. Minard v. Nerco Delamar Co., Case No. 92-SWD-1, Sec. Rem. Ord., Jan. 25, 1995, slip op. at 4-7. I find that Complainant has stated a claim under the CAA.

   Individual liability

   The TSCA and CAA prohibit "employer[s]" from discriminating against employees because they have engaged in protected activity. The term "employer" is not defined in the Acts.

   Complainant has named five individuals as Respondents in this case -- four NASA management employees and an investigator employed by the Labor Department's Wage and Hour Division, Employment Standards Administration. Complainant argues that the TSCA and CAA employee protection provisions also contemplate complaints against "person[s]." I note, however, that while the provisions reference "person[s]" in the procedural subsections (b) - (e), the substantive prohibition contained in subsection (a) refers to "employer[s]." Although not defined in the TSCA, the term "person" means "an individual, corporation, partnership,

association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof" for purposes of the CAA. 42 U.S.C. § 7602(e).

   The plain language of these employee protection provisions suggests that they were intended to apply to persons who are employers. That classification does not include the employees named here as respondents. Any other construction would require a clearer statement of intent than appears in the statutes at issue.

   For example, in a related area, courts have held corporate officers jointly and severally liable for unpaid wages under the Fair Labor Standards Act (FLSA) where

the "economic reality" indicates sufficient control over the employment relationship. See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) and cases cited therein. This result follows from the FLSA definition of the term "employer" which "includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." 29 U.S.C. § 203(d) (1988). Similarly, under the Mine Act, corporate "director[s], officer[s], and agent[s]" may be held liable for civil penalties under certain circumstances pursuant to explicit statutory directive. 30 U.S.C. § 820(c) (1988).

   I adopt the ALJ's finding that "only employers, as distinguished from individuals who are not employers, are subject to the employee protection provisions of the [TSCA] and the [CAA]." June 21, 1994, Recommended Order Dismissing Individual Respondents at 2. While I recognize that the CAA definition of the term "person" includes any "officer, agent, or employee" of the United States, I consider the prohibition against discrimination by "employer[s]" in subsection (a) of its employee protection provision a more reliable expression of the intended application.

   Waiver of sovereign immunity

   I previously found that sovereign immunity was waived under the CAA employee protection provision, but did not reach the issue under the TSCA. See Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, slip op. at 4-8.

   The TSCA, 15 U.S.C. §§ 2601-2692 (1988 & Supp. V 1993), is composed of four subchapters. Subchapter I regulates the control of toxic substances; subchapter II regulates asbestos emergency response; subchapter III regulates indoor radon abatement; and subchapter IV regulates lead exposure reduction. Subchapter I contains general provisions such as the employee protection provision, the citizen suit provision, and the citizen petition provision. The terms "employer" and "person" are not defined in the subchapter. See 15 U.S.C. § 2602 (definitions). The citizen suit provision expressly authorizes civil actions against the United States. The employee protection provision does not.

   The TSCA authorizes Federal application in its remaining subchapters. In subchapter II, section 2643(1) refers specifically to treatment of Department of Defense schools, and section 2647(f) contains a specific citizen suit provision. Section 2669, found in subchapter III, provides for the study of radon in Federal buildings. Subchapter IV's section 2688 constitutes a "Federal facilities" provision for lead-based paint. In particular,

Each department, agency, and instrumentality of executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in a lead-based paint hazard, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural . . . respecting lead-based paint, lead-based paint activities, and lead-based paint hazards in the same manner, and to the same extent as any nongovernmental entity is subject to such requirements . . . . The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement . . . .

15 U.S.C. § 2688 (Supp. V 1993). I previously have held that employee protection

provisions are "Federal requirement[s]" within in the meaning of Federal facility provisions. Conley v. McClellan Air Force Base, Case No. 84-WPC-1, Sec. Dec., Sept. 7, 1993, slip op. at 2-9. See Marcus v. U.S. Environmental Protection Agency, Case No. 92-TSC-5, Sec. Dec., Feb. 7, 1994, slip op. at 2-5.

   Unlike the CAA and the remaining four environmental statutes discussed in Jenkins, subchapter I of the TSCA, which includes the employee protection provision, contains no general "Federal facilities" provision.¹ As discussed above, the subchapter does refer to the United States in its citizen suit provision, which expressly authorizes civil actions in Federal district court:

against any person (including . . . the United States . . .) who is alleged to be in violation of this chapter or any rule promulgated under section 2603, 2604, or 2605 of this title or subchapter II or IV of this chapter, or order issued under section 2604 of this title or subchapter II or IV of this chapter to restrain such violation.

15 U.S.C. 5 2619(a)(1).² The TSCA employee protection provision, section 2622, does not appear in this list of provisions enforceable by citizen suit. Rather, it is enforced exclusively through Department of Labor administrative proceedings, not in district court by private right of action. Accordingly, the reference to the United States as a "person" for purposes of the citizen suit provision would appear insufficient to constitute an unequivocal waiver of sovereign immunity for the purpose of the separate employee protection provision. See Department of Energy v. Ohio, 112 S.Ct. 1627, 1633-1635 (1992).³

   Unlike the CAA, the TSCA does not define the term "person" to include the United States. Nor does it contain a Federal facilities provision subjecting the United States generally to Federal requirements respecting the control of toxic substances. Accordingly, with the exception of whistleblower complaints involving lead-based paint, sovereign immunity has not been waived for purposes of the TSCA employee protection provision and Complainant, whose complaint did not concern such a hazard, may not proceed against NASA under the TSCA. See June 27, 1994, Recommended Order Dismissing Complaint at 2-3.

¹The CAA Federal facilities provision covers each Federal agency "(1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants . . . ." 42 U.S.C. § 7418(a). Such agencies "shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity." Id .

²Section 2603 addresses testing of chemical substances and mixtures, section 2604 addresses manufacturing and processing notices, and section 2605 addresses regulation of hazardous chemical substances and mixtures.

³The Ohio case holds that neither the Clean Water Act nor the Solid Waste Disposal Act contains a clear enough waiver of sovereign immunity to subject the United States to civil penalties for past violations. Both Acts' civil penalty provisions impose such penalties on "persons," but neither Act defines "person" to include the United States. 112 U.S. at 1634. Even though the citizens' suit provisions expressly permit suits against the United States, the Court concluded that the relief available in such actions did not include civil penalties. 112 U.S. at 1635.