Stauffer Chemical Co. v. E.P.A., 80-1879

• Decision Date: 08 May 1981
• Docket Number: No. 80-1879,80-1879
• Citation: 647 F.2d 1075
• Parties: , 11 Envtl. L. Rep. 20,562 In the Matter of STAUFFER CHEMICAL COMPANY, Plaintiff-Appellee, v. ENVIRONMENTAL PROTECTION AGENCY and United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1075

647 F.2d 1075

15 ERC 2044, 11 Envtl. L. Rep. 20,562

In the Matter of STAUFFER CHEMICAL COMPANY, Plaintiff-Appellee, v. ENVIRONMENTAL PROTECTION AGENCY and United States of America, Defendants-Appellants.

No. 80-1879.

United States Court of Appeals Tenth Circuit.

Argued Jan. 27, 1981.

Decided May 8, 1981.

Charles F. Lettow, Washington, D. C. (and Eric C. Jeffrey, Washington, D. C., and Blair J. Trautwein, Cheyenne, Wyo., of counsel; Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., and Hathaway, Speight & Kunz, Cheyenne, Wyo., with him on brief), for plaintiff-appellee.

Peter Beeson, Washington, D. C. (Dirk Snel, Atty., Dept. of Justice, and James W. Moorman, Asst. Atty. Gen., Washington, D. C., and Charles E. Graves, U. S. Atty., Cheyenne, Wyo., of counsel; Christopher Herman, Atty., E. P. A., Washington, D. C., with him, on brief), for defendants-appellants.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

McWILLIAMS, Circuit Judge.

The principal issue here to be resolved is whether, under Section 114(a)(2) of the Clean Air Act, an employee of a private company under contract with the Environmental Protection Agency (EPA) is an "authorized representative" of the EPA Administrator for the purpose of entering and inspecting the premises of an emission source. 42 U.S.C. § 7414(a)(2) (Supp. II 1978 and Supp. III 1979). The District Court held that an employee of such independent contractor is not an "authorized representative" of the Administrator, and EPA appeals.

Stauffer Chemical Company is a chemical manufacturer whose facilities include a phosphate ore processing plant located in Lincoln County, near Sage, Wyoming, which will hereinafter be referred to as the Leefe Plant. Pursuant to the Clean Air Act, ¹ EPA has developed an oversight inspection program which is designed to evaluate the effectiveness of the individual states' inspection and regulatory procedures as well as to assess the compliance status of the country's major sources of air pollution. Under this program, state pollution control agencies are responsible for conducting annual inspections at each of the major sources in the state. EPA's regional offices are responsible for conducting annual oversight inspections at ten percent of the major sources within each state.

Region VIII of the EPA has responsibility for a six-state area encompassing Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. There are about 1,000 major stationary sources of air pollution in these six states, of which 230 are located in Wyoming. The decision as to which sources will be inspected is based on a neutral administrative scheme that focuses on classes of industry, their geographic location, and the frequency of past inspections. As indicated, to implement its role in the oversight inspection program, Region VIII selected ten percent of its major sources of air pollution for inspection in 1980. Stauffer's Leefe Plant was one of the sources selected for inspection by EPA under the described administrative scheme.

At 10:00 a. m. on April 10, 1980, a team of EPA inspectors arrived unannounced at Stauffer's Leefe Plant. The inspection team consisted of Dr. Charles O'Boyle, an EPA environmental engineer, Lee Gribb, an official of Wyoming's Division of Air Quality, and two employees of GCA Corporation, a North Carolina corporation under contract to EPA to aid in carrying out oversight inspections. It was intended that the GCA employees would make the actual inspection, with supervision from Dr. O'Boyle, who was to be present at all times. Without going into any great detail, Stauffer's employees, upon direction of their supervisors, refused to admit the team of inspectors. Stauffer's employees told the inspection team that it would admit EPA and state officials, but would not admit the two GCA employees unless the latter signed a nondisclosure and hold harmless agreement. The EPA team did not agree to the conditions which Stauffer had imposed, and left the plant premises without making an inspection.

Negotiations then ensued between Stauffer and EPA in an effort to resolve the matter. Although it did impose some additional conditions, ² Stauffer's basic position was that the two GCA employees would have to sign nondisclosure and hold harmless agreements before being admitted to the plant. Stauffer claimed that it was simply trying to protect its trade secrets. ³

When the negotiations between Stauffer and EPA came to a standstill, EPA sought an administrative search warrant. On May 8, 1980, the United States Attorney for the District of Wyoming applied to a United States Magistrate in Cheyenne, Wyoming for an administrative search warrant authorizing EPA to conduct an inspection of the Leefe Plant through the use of the two GCA employees. Supporting affidavits set forth the purpose of the inspection, the need for a warrant, and the neutral administrative scheme underlying the selection of the Stauffer facility. ⁴ In addition, the application specifically provided that though the GCA employees would make the actual inspection, they would be accompanied by EPA employees.

Based on the showing thus made, the Magistrate issued a warrant for the inspection of Stauffer's Leefe Plant. The warrant authorized "any duly designated enforcement officers and employees of the Environmental Protection Agency, and authorized employees of EPA's contractor, GCA Corporation, who have been duly authorized to conduct inspections as EPA representatives," to enter Stauffer's Leefe Plant during normal operating hours for the purpose of conducting a compliance evaluation oversight inspection pursuant to Section 114 of the Clean Air Act, 42 U.S.C. § 7414.

On the morning of May 13, 1980, the inspection team, which still included two GCA employees, attempted to execute the warrant and inspect the Leefe Plant. The inspection team again appeared unannounced. Stauffer, again, refused to admit the inspection team unless the GCA employees signed a nondisclosure and hold harmless agreement. EPA and the GCA employees refused to agree to Stauffer's conditions, and the team left the plant.

On the afternoon of May 13, 1980, Stauffer went to court. On that date Stauffer filed the following with the United States District Court for the District of Wyoming: (1) an application for a temporary restraining order enjoining EPA and the two GCA employees from executing the warrant, and (2) a motion to quash the warrant. A temporary restraining order issued the same day. Thereafter, on June 20, 1980, after an extended evidentiary hearing, the District Court permanently enjoined EPA from using GCA employees, or employees of other companies under similar contract with EPA, in inspections of any Stauffer plant in Wyoming without the permission of Stauffer Chemical Company. ⁵ It is from the June 20, 1980, injunctive order that EPA appeals.

The issue as presented on appeal is a very narrow question of statutory interpretation. The starting point in every case involving the construction of a statute is the language of the statute itself. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 57 L.Ed.2d 239 (1978); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring). Section 114(a)(2) of the Clean Air Act, enacted in 1970, appears as 42 U.S.C. § 7414(a)(2) and provides as follows:

(2) the Administrator or his authorized representative, upon presentation of his credentials

(A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and

(B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1). (emphasis added).

The particular phrase in the foregoing statute with which we are concerned is: "the Administrator or his authorized representative." The question is whether, in the fact setting described above, the two employees of GCA, the North Carolina corporation under contract with EPA, are "authorized representatives" of the EPA Administrator. As indicated, the trial court held that they were not. We agree.

The term "authorized representative" is not defined in the Clean Air Act. The present statute, therefore, does not expressly state whether employees of a company under contract with the EPA may, or may not, be authorized by the Administrator to serve as his representative. Such being the case, it is up to the courts when called upon, as we now are, to define the term. The touchstone in construing statutory language is legislative intent. Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917). The EPA suggests that legislative intent may best be ascertained in this case by applying the "plain meaning" test ⁶ and that an "authorized representative" simply means "any person duly authorized to act or speak for another or others." EPA cites in support of its position Webster's New World Dictionary, 2d Coll. Edition 1974. We decline to give such a literal interpretation.

In the belief that the "plain meaning" test does not solve our problem, we turn next to legislative history. Although the relevant legislative history is not entirely clear or consistent, in our view it is nonetheless helpful. As previously stated, Section 114(a)(2) of the Clean Air Act was enacted in 1970. The legislative history of the Clean Air Act, which pertains to that Section, indicates that, upon the disagreeing votes of the two Houses, a committee of conference agreed to a substitute for both the proposed House Bill and Senate Amendment. By way of explanation, the conferees published their discussion of the House Bill, the Senate Amendment and the substitute provision agreed upon,...