Petition — United States v. Stauffer Chemical Co.

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Iu the Supreme Court of the

OCTOBER TERM, 1982

UNITED STATES OF AMERICA, PETITIONER

Vv.

STAUFFER CHEMICAL COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rex E. LEE

Solicitor General

Mary L. WALKER

Acting Assistant Attorney General

LouIs F. CLAIBORNE

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

DirK D. SNEL

JUDSON W. STARR

KATHLEEN P. DEWEY

Attorneys

Department of Justice

Washington, D.C. 20580

(202) 633-2217

Of Counsel:

ROBERT M. PERRY

General Counsel!

CHRISTOPHER HERMAN

Attorney

Environmental Protection Agency

Washington, D.C. 20460

QUESTIONS PRESENTED

1. Whether the United States may be collaterally es-

topped from litigating a question of statutory interpreta-

tion of public importance governing the relationship be-

tween a federal agency and members of a large class of

businesses subject to the agency’s jurisdiction by the

judgment of the court of appeals for a different circuit

rendered in another case involving the same private party

but arising from a separate transaction at a different

location.

2. Whether a contractor retained by the Environmen-

tal Protection Agency specifically for the purpose quali-

fies as an “authorized representative” of EPA's Admin-

istrator entitled to participate in agency inspections of

stationary emission sources pursuant to Section 114(a)

(2) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7414

(a) (2).

(1)

TABLE OF CONTENTS

Page

Se vncenserconsentonercosoose 1

an. seessssonnnosmencconsosces 1

NEN a EE 2

ES Ee aR os aD 2

Reasons for granting the petition ...........0.........e. 15

Es ceceuenctoscescococccoososes 30

acc cenusepecenstcorsesnsocenscccsce la

EE ET 42a

EE LSE 44a

os sccsnntececenscsvscccboccooes 57a

Neen ie cc scccscncseseamacecccsreccceses 59a

TABLE OF AUTHORITIES

Cases:

Aluminum Co. of America Vv. EPA, No. M-30-13

I OD nc eccnccecscccccees 4

American Medical International, Inc. v. Secretary

of Health, Education, and Welfare, 677 F.2d

SS 15, 16, 17, 20, 27

Bowen V. United States, 422 U.S. 916.000.000.000... 23

Bunker Hill Co. v. EPA, 658 F.2d 1260, aff’g Civ.

No. 80-2087 (D. Idaho Oct. 15, 1980)....... 4, 11, 14, 16,

27, 29

Commissioner V. Sunnen, 333 U.S. 591.000.000.000... 26

Divine v. Commissioner, 500 F.2d 1041 20000000000... 18

E.I. Du Pont DeNemours & Co. Vv. Train, 480 U.S.

EE Ee 25

Harrison. Vv. PPG Industries, Inc., 446 U.S. 578... 28

Hicks Vv. Quaker Oate Co., 662 F.2d 1158 27

i cssoscnencnscesccsonse 17

Cases—Continued : Page

Montana Vv. United States, 440 U.S. 147....9, 10, 16, 21, 23,

24, 26, 27

NLRB Vv. Enterprise Association of Pipesitters, 429

MINE MIU covcnsc hicisaess tardenmiabaeinashditanSabeeeinscs setae aiiaioad 19

New Jersey Department of Environmental Protec-

ae, FE ff 8 ee ae 26

Olegario v. United States, 629 F.2d 204, cert. de-

RE Bie is IE cacoascsnetindccsetceabbnenenaiishasoreiens 15

Parklane Hosiery Co. v. Shore, 439 U.S. 322....... 21,24

Republic Steel Corp. v. Costle, 621 F.2d 797........ 26

Sharon Steel Corp. v. EPA, 597 F.2d $77 ............ 26

Standefer v. United States, 447 U.S. 10 ......0.0....... 17

Stauffer Chemical Co, In re, 14 Env’t Rep. Cases

i: is Ie MUI, BI ities cececcapdervensacsenncies 4,8

Starker v. United States, 602 F.2d 1341 ................

FINE Th Fr Wea amcccctninncsenscccencbcnccnsens

Union Electric Co. V. EPA, 427 U.S. 246 ................

Union Carbide Corp. v. Commissioner, 671 F.2d

REISS CARB LILI OL Er REWER

United States v. Foster Lumber Co., 429 U.S. 32.. 19

United States v. Mendoza, cert. granted, No. 82-

RR eee 16, 29, 30

United States v. Moser, 266 U.S. 236 ....000.00000000... 9, 26, 27

United States Steel Corp. v. EPA, 595 F.2d 207,

I Ce BE TID kai cectanicitcinscenscbicsdcashics tenieteociee 26

United States Steel Corp. v. EPA, 605 F.2d 283,

OOEt. Gomeied, GEG OB. DODD neccccccncccceccnccnsscceccscecees 25, 26

United States Steel Corp. v. EPA, 649 F.2d 572.... 26

Western Oii & Gas Ase’n V. EPA, 633 F.2d 803.... 10, 18,

26, 27

Statutes, regulations and rule:

Clean Air Act, 42 U.S.C. (Supp. IV) 7401 et seq...

Section 107, 42 U.S.C. (Supp. IV) 7407........

Section 109, 42 U.S.C. (Supp. IV) 7409........

Section 110, 42 U.S.C. (Supp. IV) 7410........

Section 112, 42 U.S.C. (Supp. IV) 7412........

Section 114, 42 U.S.C. (Supp. IV) 7414........ am

Statutes, regulations and rule—Continued: Page

Section 114(a), 42 U.S.C. (Supp. IV) 7414

ee ee ee 2, 5, 6, 8, 12, 18, 14, 28, 29

Section 114(a) (2), 42 U.S.C. (Supp. IV)

TEEN : ae 2, 4, 5, 6, 7, 11, 22, 27, 28, 29

Section 114(c), 42 U.S.C. (Supp. IV) 7414

7 ESN Ai PA RAS ANSE ae RSE RCE REALE 5, 6, 12, 18, 29

Section 114(d), 42 U.S.C. (Supp. IV) 7414

a a ER SI RP iPad Wee BRR A. 12, 29

Section 206(c), 42 U.S.C. (Supp. IV) 7525

al IO cite RE TLE SEP eA ete a Oe 7

Section 208(a), 42 U.S.C. (Supp. IV) 7542

ne ee | a ssonhabekehobamemeinoeiiad 7

Section 301(a), 42 U.S.C. (Supp. IV) 7601

Clean Water Act, 33 U.S.C. 1151 et seq.:

Section 308, 33 U.S.C. (& Supp. V) 1318 .... 7

Section 509(b) 33 U.S.C. 1869(b) 0.000500... 25

i tania 26

ps A a! 7 OT, Y ) aes nencees 3

TS ES OS ee ee en 18

Miscellaneous:

[1982] 2 Moody’s Industrial Manual 5985 ............ 22

Restatement (Second) of Judgments (1980) ....18, 20, 22,

25, 27

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971)... 7

Iu the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

STAUFFER CHEMICAL COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sixth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-4la) is reported at 684 F.2d 1174. The court of ap-

peals’ order upon denial of a petition for rehearing (App.

B, infra, 42a-43a) is unreported. The opinion of the dis-

trict court (App. C, infra, 44a-56a) is reported at 511

F, Supp. 744.

JURISDICTION

The judgment of the court of appeals (App. D, infra,

57a-58a) was entered on July 7, 1982, and a timely peti-

tion for rehearing was denied (App. B, infra, 42a-48a)

on October 15, 1982. On January 3, 1988, Justice O’Con-

nor extended the time for filing a petition for a writ of

certiorari to and including February 27, 1988. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTE INVOLVED

Section 114(a) of the Clean Air Act, 42 U.S.C. (Supp.

IV) 7414/a) provides in pertinent part:

(2) the Administrator or his authorized representa-

tive, 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 sam-

ple under paragraph (1).

STATEMENT

1. This case arises from respondent’s challenge to use

of a contractor duly designated as a representative of

the United States Environmental Protection Agency to

assist EPA employees in conducting an inspection of a

stationary emission source under Section 114/a) (2) of

the Clean Air Act. 42 U.S.C. (Supp IV) 7414(a) (2).

EPA contracted with PEDCo Environmental, Inc. to

assist with technical aspects of an overview inspection

of an elementa! phosphorus production plant operated

by respondent located in Mt. Pleasant, Tennessee. EPA

' The Clean Air Act, 42 U.S.C. (Supp. IV) 7403 et seqa., establishes

a dua] state-federa! system of air pollution enforcement. EPA estab-

lishes national ambient air quality standards, 42 U.S.C. (Supp. IV)

7409, while the states are primarily respons‘bie for enforcing these

standards, subject to EPA’s supervision and approval, 42 U.S.C.

(Supp. IV) 7407, 7410 and 7412. As part of that oversight EPA

employs its Section 114(a)(2) inspection authority to conduct an

“overview inspection program” under which it inspects approxi-

mately 10% of the major stationary sources of air pollution within

each state annually. The sources so inspected already have been

inspected by state authorities, which submit reports to the EPA.

The resuits of each overview inspection are compared with the

previously-reported results of the state inspection of the same

facility. The purpose of the overview inspections is to evaluate

each state's performance in enforcing the Clean Air Act.

took steps necessary to ensure that information learned

by employees of its inspection contractors during in-

spections was kept confidential. Thus, the terms of

EPA’s contract with PEDCo hold PEDCo and its em-

ployees to strict confidentiality (App. B, infra, 53a-54a).

PEDCo, in turn, contracts with its employees that any

violation of their confidentiality duties “will result in im-

mediate dismissal and liability for any damages arising

therefrom” (id. at 53a-54a n.5). Moreover, under EPA

regulations, private contractors retained by the agency

agree that regulated businesses that have an interest in

confidential] information disclosed to contractor personnel

are intended beneficiaries of any applicable confidentiality

agreement and may enforce such agreements against any

breaching employee. 40 C.F.R. 2.301 (h) (2) (ii).

EPA officials attempted to inspect respondent’s Mt.

Pleasant plant in March of 1980. When EPA personnel,

accompanied by representatives of the Tennessee Divi-

sion of Air Pollution Control, and assisting personnel

from PEDCo arrived at the plant, respondent denied

entry to the PEDCo employee. In ensuing negotiations,

respondent attempted to condition admission of PEDCo

personnel upon adherence to terms respondent had fixed.

In addition to confidentiality requirements and provisions

for liability in damages in the event of any breach, the

agreement proposed by respondent would have afforded it

absolute authority to determine the areas of the plant to

be inspected, and required the contractor (and thus EPA)

to give it two weeks’ advance notice of any a

(App. A, infra, 6a). EPA deemed these

acceptable. Thereafter, on August 7, 1980, EPA secured

an administrative warrant from a federal magistrate

authorizing inspection of respondent’s Mt. Pleasant, Ten-

nessee facility. The warrant covered inspections by EPA

employees and ‘accompanying, authorized representatives

under contract to EPA.” EPA and state officials, again

accompanied by a PEDCo employee, again attempted

to inspect respondent’s Mt. Pleasant phosphorus plant

pursuant to the warrant. Respondent again refused to

permit the PEDCo employee to participate in the in-

spection of the plant unless its terms for admission were

accepted.

2. The following day, August 8, 1980, EPA sought to

have respondent held in civil contempt by the United

States District Court for the Middle District of Tennessee

for its refusal to honor the warrant. Respondent coun-

tered with a motion to quash the warrant. Respondent

argued that Section 114(a)(2) of the Clean Air Act,

which empowers the EPA Administrator “or his author-

ized representative” to enter upon the premises of sta-

tionary pollution sources to sample emissions, does not

sanction entry by contractors retained by EPA to assist

in such inspections.2 The opposed applications were con-

solidated for hearing. On April 17, 1981, the district

court denied the motion to quash, holding that the inspec-

tion authority granted to “authorized representative[s]”

of the EPA Administrator by Section 114(a) (2) extends

to properly designated private contractors (App. C, infra,

44a-55a).* However, because respondent’s noncompliance

with the warrant was based upon its good faith “belie[f]

that private contractors were not authorized representa-

2 Although the statutory question had, by the date of the hearing

on its motion to quash, been decided in its favor in separate litiga-

tion involving a different plant, see Jn re Stauffer Chemical Co., 14

Env’t Rep. Cases 1737 (D. Wyo. 1980), respondent did not argue in

district court that the Wyoming district court’s decision was to be

given preclusive effect. A second decision, contrary to the Wyoming

district court’s, had been rendered in a case to which respondent was

not a party prior to submission of this case to the district court.

See Aluminum Co. of America V. EPA, No. M-30-13 (M.D.N.D.

Aug. 5, 1980). A third decision, likewise supporting EPA’s posi-

tion, was rendered in Bunker Hill Co. v. EPA, Civ. No. 80-2087

(D. Idaho Oct. 15, 1980), after submission but prior to entry of the

district court’s decision in this case.

3 {n the district court respondent also argued that EPA may not

secure administrative warrants on an ex parte basis. The district

court rejected this argument (App. C, infra, 55a-56a), and although

respondent preserved the argument on appeal (see App. A, infra,

8a), the court of appeals did not reach that issue. No issue re-

specting the procedure for issuance of s warrant is presented here.

tives [under the Clean Air Act],’”’ EPA’s contempt motion

was also denied, without prejudice to its renewal] in the

event respondent persisted in its refusal to honor the

warrant (id. at 56a).

Although it observed that the question of statutory in-

terpretation presented was a close one that had divided

the district courts (App. C, infra, 46a-47a & n.2; see

page 4 note 2, supra), after canvassing the pertinent

statutory language, related statutory language and perti-

nent statutory legislative history, the district court was

persuaded that the Administrator’s authority to designate

an “authorized representative” under Section 114(a) (2)

is not confined to employees of EPA. First. the district

court noted that Section 114/c) of the Clean Air Act, 42

U.S.C. (Supp. IV) 7414(c) (which was enacted together

with Section 114(a) as part of the 1970 Clean Air Act

amendments), authorizes disclosure of confidential infor-

mation obtained pursuant to a Section 114(a) (2) inspec-

tion to “other officers, employees or authorized representa-

tives of the United States concerned with carrying out”

the provisions of the act. Because the term “authorized

representatives” in this closely related setting necessarily

encompasses personne] other than officers and employees

of the United States, such as authorized contractors, the

district court concluded that the identical term employed

in Section 114(a) (2) was to be accorded like scope (App.

C, infra, 48a, 51a-52a).

Second, the district court noted that the House version

of the Clean Air Act Amendments had limited entry and

inspection authority to “officers or employees duly des-

ignated by the Secretary,”* whereas the Senate version,

the one ultimately enacted, was broader, encompassing

“the Secretary or his authorized representative.” Because

the plain meaning of the term “authorized representa-

tive” extends beyond agency officers and employees to all

who are in fact the duly authorized agents of the Ad-

* At the time in question EPA had yet to be created, and the

Secretary of Health, Education, and Welfare was charged with

administration of the Clean Air Act.

ministrator, the district court concluded that agency con-

tractors could participate in Section 114(a) (2) entries

and inspections (App. C, infra, 50a-5la).

Third, the district court concluded that the usual prac-

tice of conducting searches with government personnel

did not require a different reading of Section 114(a),

because the Clean Air Act embodies a system of compre-

hensive monitoring of pollution emissions unknown at

common law and with no counterpart in traditional po-

lice power enforcement schemes, because Congress had

recognized the need for technical expertise possessed by

contractors in implementation of the Clean Air Act, and

because Section 114(c) of the Act makes clear that duly

designated contractor-representatives can be provided ac-

cess to information gained in Section 114(a) (2) inspec-

tions, even when such information is confidential (App.

C, infra, 52a).°

The district court also concluded that respondent’s con-

cerns respecting confidentiality of proprietary information

that might be disclosed to inspection agents did not require

limitation of Section 114(a)(2) inspection authority to

EPA personnel. Observing that Section 114(c) explicitly.

authorized disclosure of such confidential data to authorized

EPA agents, the court concluded that Congress could not

have regarded contractor access to such data to be in-

compatible with maintenance of confidentiality. Accord-

ingly, the court treated the issue as one of the adequacy

of the safeguards available to respondent in this partic-

ular case and concluded that the confidentiality provi-

sions of EPA’s contract with PEDCo and PEDCo’s con-

tract with its employees, together with EPA’s regulations

empowering respondent to enforce the confidentiality re-

quirements of the foregoing agreements by appropriate

legal and equitable remedies, were sufficient to dispel any

legitimate concern respecting maintenance of confiden-

5 Because it deemed the pertinent materials equivocal, the district

court declined to adopt EPA’s contention that Congress had ratified

a consistent administrative practice respecting the application of

Section 114(a)(2) (App. C, infra, 55a).

tiality, in the absence of any evidence that PEDCo was

in competition with respondent in any business (App. C,

infra, 58a-55a).

The district court also rejected respondent’s contention

that Section 114(a) (2), which governs inspections of sta-

tionary pollution sources (i.e. industrial plants), should

be interpreted to conform with Sections 206(c) and 208

(a) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7525(c)

and 7542(a). The latter provisions govern inspections

of motor vehicle plants, and describe the persons author-

ized to carry out such inspections as “officers and employ-

ees duly designated by the Administrator.” The district

court, concluded instead that the disparate provisions of

Section 114(a)(2) and Sections 206(c) and 208(a)

should be assigned their natural and distinct meanings,

and that the difference “reflect[s] a measured congres-

sional choice” (App. C, infra, 48a). The district court

also considered legislative history of Section 308 of the

Clean Water Act, 33 U.S.C. (& Supp. V) 1318, which

was modeled upon Section 114 and enacted in 1972, two

years after Section 114/a) (2), suggesting that inspection

authority under the Clean Air Act was limited to EPA

employees.*° Although the language “g[{a]ve the court

pause,” it ultimately concluded that such post-enactment

legislative history was due relatively little weight in

determining the intent of Congress in 1970 when Section

114(a) (2) was enacted. The court concluded that Con-

gress’ choice of the broad “authorized representative”

language of the Senate bill, in place of the “officers or

employees” language of the House bill, was a more telling

indication of the pertinent congressional intent (App. C,

infra, 48a-50a).

* The Senate Report on the 1972 Amendments to the Clean Water

Act, S. Rep. No. 92-414, 92d Cong., 1st Sess. 63 (1971), states:

It should * * * be noted that the authority to enter, as under the

Clven Air Act, is reserved to the Administrator and his au-

thorized representatives which such representatives must be

full time employees of [EPA]. The authority to enter is not

extended to contractors with the EPA in pursuit of research

and development.

8. On appeal, respondent argued for the first time that

the decision in In re Stauffer Chemical Co., 14 Env’t Rep.

Cases 1737 (D. Wyo. 1980), aff’d, 647 F.2d 1075 (10th

Cir. 1981) (“Stauffer I”), collaterally estopped the

United States from contending that the term “authorized

representative” employed in Section 114(a) (2) includes a

duly designated EPA contractor. Stauffer I presented the

same legal question as this case, but arose from respond-

ent’s resistance to an administrative warrant authorizing

inspection by EPA and its contractors of respondent’s

phosphate ore processing plant in Sage County, Wyoming.

As previously indicated (see page 4 and note 2, supra),

prior to the district court decision in the instant case the

Wyoming district court had held in Stauffer I that Sec-

tion 114/a) (2) does not permit EPA contractor person-

ne] to assist in inspections, but respondent had not argued

that that decision was to be afforded preclusive effect.

Subsequent to the entry of the district court’s decision in

the instant case, the United States Court of Appeals for

the Tenth Circuit affirmed the district court’s judgment

in Stuuffer I, albeit cautioning that the issue was not

“an open and shut matter” and acknowledging that under

its decision the Clean Air Act is “not entirely internally

consistent.” 647 F.2d at 1079.

An unusually fragmented court of appeals reversed the

decision of the district court in this case (App. A, infra,

la-4la). While all members of the panel concurred in the

judgment, the reasoning of each member was distinct, and

each judge wrote separately. Judge Weick delivered what

was characterized (id. at la) as the opinion of the court

(id. at la-33a). Although he “agree{d] with Stauffer

that the action is governed by estoppel and res judicata”

and that it was therefore “unnecessary to reach other is-

sues,’ Judge Weick went on to reach the merits “because

they were briefed by both parties” (id. at 4a) concluding

that Section 114/a) (2) does not permit EPA contractors

to participate in inspections of stationary pollution

sources. Judge Jones joined only in Judge Weick’s discus-

sion of collateral estoppel, stating that “the application of

the doctrine precludes this Court from addressing the

merits of the issue presented” (id. at 34a). District

Judge Siler (‘e''ting by designation), on the other hand,

concurred only in Judge Weick’s opinion on the statutory

issue, concluding that “the doctrines of collateral estoppel

and res judicata should not be applied here” (id, at 39a).

Thus, each branch of Judge Weick’s opinion spoke for a

majority of the court, and the judgment of the court of

appeals rests upon alternative holdings.’

a. Collateral Estoppel—Because “the parties as well as

the issues of fact and law in the present case and Stauffer

I were identical” (App. A, infra, lla), Judge Weick con-

cluded that the doctrine of collateral estoppel described

in Montana v. United States, 440 U.S. 147, 153-154

(1979), was controlling (App. A, infra, 8a-18a). He

concluded, moreover, that the “unmixed questions of law”

exception to the rule of preclusion noted in Montana (440

U.S. at 162, quoting United States v. Moser, 266 U.S.

236, 242 (1924)), was inapposite, characterizing the is-

sue presented on the merits as one governed by a “fact,

question or right distinctly adjudged” in Stauffer I,

rather than “a rule of law [enunciated] * * * in a sub-

sequent action upon a different demand” (United States

v. Moser, supra, 266 U.S. at 242) (App. A, infra, 1%.

18a!. Finally, Judge Weick condemned the government's

effort to “relitigate[)" (id. at 12a) the issue decided in

Stauffer I, stating (ibid; emphasis added) that the gov-

ernment’s persistence

brings up the question, how many times does the

government have to lose a case before either the

doctrines of collateral estoppel or res judicata are

applied? If we were dealing with private parties

rather than the government, there would be no ques-

tion about it. /f EPA really believed the decision of

the Tenth Circuit in Stauffer I was wrong, it could

have petitioned the Supreme Court for certiorari,

* Judge Weick’s reasoning that, notwithstanding the application

of collateral estoppel, the merits should be addressed was his alone.

but it did not avail itself of that remedy, and it is

too late to do so now, EPA cannot collaterally at-

tack the Tenth Circuit decision in the present case.

By contrast, Judge Siler concluded that collateral es-

toppel had no application in this case (App. A, infra,

39a-d4la). He stressed that the “federal appellate courts

‘traditionally have permitted federal agencies to relitigate

substantially identical legal issues raised by different

transactions or events, after adverse decision elsewhere’ ”

(id. at 40a, quoting Western Oil & Gas Ase’n v. EPA, 638

F.2d 803, 808 (9th Cir. 1980)). Judge Siler explained

further that the issue preclusion rule was not to be ap-

plied so as to create an injustice. He concluded that

such an injustice would result from application of col-

lateral estoppel “if EPA were precluded from entering

with private contractors at Stauffer’s plant in Tennessee,

but were using private contractors in entering competi-

tor’s plants in the same area” (App. A, infra, 40a-41a).

Judge Siler concluded (ibid.), moreover, that

where several different cases involving the same is-

sues are being litigated simultaneously in separate

circuits, collateral estoppel should not be invoked.

Judge Jones wrote separately on the collateral estoppel

issue, explaining his concurrence in that branch of the

court’s opinion (App. A, infra, 84a-38a). Under Mon-

tana Vv. United States, supra, Judge Jones recognized

(App. A, infra, 35a), collateral estoppel is not to be ap-

plied where “controlling facts or legal principles have

changed significantly” since the judgment in a prior case,

or where “other special circumstances warrant an excep-

tion to the normal rules of preclusion” (440 U.S. at 155).

However, Judge Jones found these exceptions inapplicable

(App. A, infra, 35a-36a). He discounted Judge Siler’s

concern that application of collateral estoppel would foster

uneven application of the law to parties similarly sit-

uated, urging that application of different rules of law

to respondent's facilities in different locations would cre-

ate a more serious inequity. And even though he had

concluded that it was improper for the court to have

reached the merits, given the applicability of collateral

estoppel (id. at 34a), Judge Jones observed that because

the other two members of the panel had reached the

merits, the inequity that troubled Judge Siler was “il-

lusory.” He explained: “(T]he stare decisis impact of

the Court's holding today, if it becomes final, may be ex-

pected to eliminate the practice [of contractor-assisted

inspections] in this jurisdiction” [id. at 37a; citation

omitted). Finally, while Judge Jones agreed with Judge

Siler that federal agencies ordinarily should be able .o

litigate controlling legal issues in more than a single

circuit, he thought that rule inapplicable where the ad-

verse party in the prior case is the same as the present

one, and “the same defendant is sued in seriatim without

the agency attempting to exhaust its appeals on the pre-

vious judgment.” (id, at 37a, 38a).

b. Interpretation of Section 114(a)(2)—Writing for

himself and Judge Siler, Judge Weick turned to the

underlying question of statutory interpretation (App. A,

infra, 18a-38a). At the outset, Judge Weick acknowl-

edged the proper interpretation of the statute was not

free from doubt, and that under his interpretation inter-

nal inconsistencies in the Clean Air Act remained (id,

at 16a-17a).* He also recognized (App. A, infra, 1l5a-

16a) that the decision of the Tenth Circuit in Stauffer J

was at odds with the subsequent decision of the Ninth

Cireuit on the same issue rendered in a case not involv-

ing respondent, Bunker Hill Co. v. EPA, 658 F.2d 1280

(1981) (“Bunker Hill”), Nevertheless, after canvassing

the pertinent statutory language and legislative history,

Judge Weick concluded that Section 114(a)(2) of the

Clean Air Act does not countenance assistance by con-

tractors designated as EPA representatives in carrying

out the inspections of stationary pollution sources author-

ized.

* Judge Siler similarly acknowledged that the district court's con-

trary decision was not clearly incorrect (App. A, infra, 4la).

The court of appeals initially rejected EPA’s conten-

tion that the plain meaning of the term “authorized rep-

resentative’ extended to contractor-representatives desig-

nated by EPA (App. A, infra, 17a). The court also con-

cluded that no weight could be attributed to Congress’

adoption in 1970 of the broad language ‘‘authorized rep-

resentative’ from the Senate bill, in preference to the

terms “officers or employees’ contained in the analogous

provision of the House bill, because the respective legisla-

tive reports do not address the present question. More-

over, the court of appeals observed that the Conference

Report made no mention of any distinction, and indeed,

summarized the provisions of the alternative bills in

nearly identical terms (i.e., authorizing entry and inspec-

tion by “DHEW investigative personnel” as opposed to

“DHEW personnel”). The court therefore concluded that

Congress intended that the term “authorized representa-

tive” serve as a synonym for “officers or employees”

(App. A, infra, 17a-20a).

In addition, the court of appeals stated that Section

114‘d) of the Act, 42 U.S.C. (Supp. IV) 7414(d), added

by 1977 amendments, which requires “the Administrator

(or his representatives)” to give notice to the appropriate

state air pollution contro] agency before making an in-

spection under Section 114/a) (2), supports respondent’s

reading of the term represeritative in the latter Section.

The court reasoned that Congress could not have en-

trusted “this kind of sensitive intergovernmental commu-

nication to employees of private contractors,’ and that

the term “representatives” used in Section 114(a) (2)

should be given a similarly narrow reading to conform to

Section 114/d) (App. A, infra, 20a-21a). Moreover, the

court of appeals rejected the conflicting observation of

the district court (see page 5, supra) that Section 114/a)

should be read in conformity with Section 114(c). Al-

though the court of appeals did not dispute that the term

“authorized representatives” as employed in Section

114(c) extends the right to disclosure of confidential

material to EPA contractors (App. A, infra, 21a), it

thought to harmonize all three provisions as follows (id.

at 22a):

(T]he word “representative” as used in section 114

of the Clean Air Act means EPA officers or employ-

ees, unless the latter are already enumerated, as

they are in Section 114(c). In that event, the plain

meaning of “representative,” i.e, one standing or

acting for another through delegated authority, con-

trols.

The Court recognized that the result of its interpretation

was to assign two different meanings to the term “repre-

sentative” as used in Section 114, but it thought this

result unavoidable (ibid.). Moreover, the court reasoned

that because the term “representative” employed in Sec-

tion 114/c) necessarily denotes persons other than EPA

employees, a homologous interpretation of Section 114

(a) (2) would mean that the administrator could make

inspections of stationary pollution sources only through

persons other than agency employees (ibid.).

EPA also argued that because Section 301(a) of the

Clean Air Act, 42 U.S.C. (Supp. IV) 7601/a), authorizes

the Administrator to delegate any of her duties (save

only the pru;nulgation of reguiations) to “any officer or

employee of the [EPA],” the term “authorized repre-

sentative” employed in Section 114(a)(2) is superfluous

unless it extends to persons other than EPA personnel

such as contractors. Labelirg this contention “ingenious”

(App. A, infra, 23a) the court of appeals nonetheless

concluded that “a more natural reading [of Section 114

(a) (2)] is that ‘authorized representative’ contemplates

the delegation authorized by Section 301(a)” (ibid.).

The court found its task to be “complicated” by the

disparate language employed in the statutory provisions

authorizing inspection of motor vehicle engines at the

manufacturers’ plants (App. A, infra, 28a; see page

7, supra). The court recognized that the use of broader

language in fsection 114/a) could “just as logical [ly]”

(App. A, infra, 24a, 30a) be taken to indicate congres-

sional approval of the participation of agency contractors

in statutory inspections. But because there is no men-

tion in the legislative history of an intent to differentiate

between authority to inspect stationary sources and au-

thority to inspect motor vehicle engines, and because, in

the court’s view, “{i]t would be illogical and inconsistent”’

to interpret Section 114(a) (2) so as to vest EPA with

broader authority as to stationary sources, a narrow read-

ing of Section 114(a)(2) was adopted (App. A, infra,

25a).

Moreover, unlike the district court (see page 7, supra)

and the Ninth Circuit (see Bunker Hill, supra, 658 F.2d

at 1284), the court of appeals attached substantial weight

to post-enactment legislative history respecting the 1972

Amendments to the Clean Water Act (App. A, infra,

26a-29a). The court reasoned that the timing and au-

thorship of the Senate report on Section 308 of the Water

Act lent substantial authority to the views expressed re-

specting previously enacted provisions of the Clean Air

Act (App. A, infra, 28a). In any event, the court thought

it “anomalous” (id. at 29a) that contractor-assisted in-

spections be permitted under the Clean Air Act, but not

under counterpart provisions of the Clean Water Act

(ibid. ) .*

*The court of appeals also suggested that the legislative his-

tory of a 1980 amendment to analogous inspection provisions of the

Solid Waste Act adding “representative[s]"” duly designated by the

EPA Administrator to the list of persons authorized to make in-

spections makes clear the intent to extend authority to persons other

than EPA employees, and that the absence of comparable language

in the legislative history of the 1970 Clean Air Act Amendments

accordingly reflects a contrary intention (App. A, infra, 29a-30a).

In addition, the court of appeals rejected EPA’s contention (pre-

viously accepted by the Ninth Circuit, Bunker Hill, supra, 658 F.2d

at 1284 n.2) that Congress had ratified the agency’s interpretation

of Section 114(a) (2), by its failure to correct it in amending the

Act in 1977, The court found the evidence respecting ratification

inconclusive (App. A, infra, 3la). The court also found insufficient

EPA’s contention that Congress had ratified the agency’s position

REASONS FOR GRANTING THE PETITION

The twin holdings of the court of appeals both present

issues of general and practical importance that warrant

further review. The collateral estoppel branch of the

court of appeals decision presents an important question

respecting the preclusive effect of decisions of lower fed-

eral courts upon legal questions of public importance

that affect relations between a government agency and a

broad class of similarly situated persons. The court of

appeals’ suggestion that the United States was bound to

seek review in this Court of the Tenth Circuit’s decision

in Stauffer i or else be bound thereby is obviously irrec-

oncilable with this Court’s certiorari practice, and would

moreover require a radical alteration of the practices of

the Solicitor General. If allowed to stand, the decision

betokens a substantial shift of workload from the courts

of appeals to this Court. Moreover, the court of appeals’

decision takes no account of the special considerations ap-

plicable to government litigation on questions of public

law of widespread applicability that have been generally

thought to preclude applications of collatera] estoppel

against the government in such settings. See, e.g., Ameri-

can Medical International, Inc. Vv. Secretary of Health,

Education, and Welfare, 677 F.2d 118, 121-124 (D.C. Cir.

1981); Olegario v. United States, 629 F.2d 204, 215 (2d

Cir. 1980), cert. denied, 450 U.S. 980 (1981).

Even if the rule announced were confined to instances

in which the party adverse to the government is the same

as in the prior case in which an issue was litigated, the

decision of the court of appeals would substantic'ly affect

the government’s litigating practices and impose sub-

stantial burdens upon this Court, for it is frequently

impossible to know in advance whether the issue decided

against the government in a given case will reoccur in

litigation with the same party. In any event, as to ques-

tions of public law, the decision of the court of appeals

by approving appropriations for contractor assistance (id. at 32a-

33a).

fosters an unacceptable disparity in the application of

the laws to similarly situated persons. Insofar as the

decision of the court of appeals turns upon the identity

of the parties in this case and Stauffer J it is contrary

to the D.C. Circuit’s decision in American Medical Inter-

national, Inc. Vv. Secretary of Health, Education, and Wel-

fare, supra, 677 F.2d at 124.

The court of appeals’ holding respecting Section 114(a)

of the Clean Air Act also merits review. As the court of

appeals acknowledged its decision creates a clear conflict

with the Ninth Circuit decision in Bunker Hill Co. v.

EPA, 658 F.2d 1280 (1981). That decision in turn

deliberately rejected the Tenth Circuit’s reasoning in

Stauffer I, Because the court of appeals’ decision elimi-

nates an important tool employed by the EPA to assure

enforcement of the nation’s clean air laws, this sharply-

drawn conflict merits resolution at this time.

1, Contrary to the view of the court of appeals, Mon-

tana Vv. United States, 440 U.S. 147 (1979), is not con-

trolling here. As the Court indicated there, 440 U.S. at

155, collateral estoppel is inapplicable whenever “special

circumstances warrant an exception to the normal rules

of preclusion.” We submit that the unique attributes and

role of the United States as a litigant involve special

circumstances that strongly militate against the applica-

tion of the preclusion doctrine to government at least

when it is engaged in the uniquely sovereign function

of enforcing the public law, which governs the legal rela-

tions of federal agencies with broad classes of similarly

situated persons or businesses.” These considerations

have been fully outlined in our petition for a writ of

certiorari and reply brief in United States v. Mendoza,

cert. granted, No. 82-849 (Jan. 24, 1983), copies of which

tention was made in that case that the applicability of collateral

estoppel was in any respect affected by the government's special

attributes and responsibilities. Moreover, as explained below (pages

23-24), these considerations had little if any application in Montana

itself.

have been provided to respondent. We summarize them

here,

First, unlike cases involving only private litigants, ap-

plication of the issue preclusion doctrines in cases involv-

ing the United States must tpke account of the unique

public interest in the uniform and rigorous enforcement

of laws of general importance and applicability. See

Standefer v. United States, 447 U.S. 10, 24-25 (1980) ;

INS vy. Hibi, 414 U.S. 5, 8 (1973). Here, as in Standefer,

this public interest outweighs the considerations that

ordinarily underlie the preclusion doctrine.

Second, critical practical and legal realities that are

present wherever the United States is engaged in

litigation on recurring questions of law of widespread

applicability argue strongly against the estoppel in-

voked by the court of appeals. The government is in-

volved in far more litigation than any other party.

Many legal issues of substantial public importance arise

only in government litigation, moreover. See American

Medical International, Inc. v. Secretary of Health, Educa-

tion, and Welfare, supra, 677 F.2d at 121 n.24. (The un-

derlying question of statutory interpretation in this case

is typical in this respect.) Thus application of collateral

estoppel to bar redetermination of such a legal question

by a court of rank coordinate to one that has rendered a

decision adverse to the government would substantially

interfere with the operation of the prevailing system of

development of the public law. In that system courts of

coordinate rank are not bound by each other’s decisions

but apply instead the more flexible doctrine of stare

decisis. Conflicts are resolved through the hierarchical

process of appeal, en banc review and certiorari. As the

courts of appeals and respected commentators have gen-

erally recognized, these considerations ordinarily preclude

application of collateral estoppel to the government on

recurring legal issues. American Medical International,

Ine. V. Secretary of Health, Education, and Welfare, supra,

677 F.2d at 121-124; Western Oil & Gas Ass’n v. EPA,

633 F.2d 808, 808 (9th Cir. 1980); Divine v. Commis-

sioner, 500 F.2d 1041 (2d Cir. 1974); Restatement

(Second) of Judgments § 29, comment i (1980).

Third, invocation of collateral estoppel against the gov-

ernment on recurring legal issues is inappropriate be-

cause, through the Office of the Solicitor General, the

government, unlike any other litigant, employs a formal

mechanism for determining whether to take an appeal

from or seek certiorari review of an adverse judgment.

This process is relatively selective, particularly at the

certiorari stage. Moreover, to a degree unmatched by any

private party the government takes into account factors

other than its narrow interest in prevailing in a particu-

lar lawsuit in making this selection. Thus the Solicitor

General frequently decides against appeal or certiorari

even though the legal conclusions of the deciding court

are believed to be erroneous. Such determinations rest

upon a host of other factors including a substantial meas-

ure of prosecutorial discretion, equitable and policy con-

siderations, the perceived practical importance of the de-

cision, limitations upon the resources of the government,

and sensitivity to crowded dockets of the courts. Because

of the substantial volume of government litigation, and

the substantial share of this Court’s limited docket al-

ready occupied by government cases, self-restraint is

particularly necessary in connection with filing of peti-

tions for a writ of certiorari.

This case well illustrates these considerations. No pe-

tition was filed in Stauffer J]. But at the time the case

was decided there was no conflicting decision of any

court of appeals. Moreover, the pendency in the Ninth

Circuit of Bunker Hill, an appeal from a district court

decision favorable to the government, as well as the

pendency of respondent’s appeal to the Sixth Circuit from

the district court’s decision in this case, necessarily coun-

seled against application to this Court for further review

in Stauffer I. Any other course would have ignored this

Court’s announced certiorari practices, see Sup. Ct. R.

17.1(a), and would have disserved both the Court and

those litigants who compete for a place on its crowded

docket.

Adoption of the novel rule endorsed by Judge Weick

(see pages 9-10, supra) would compel the United States

to reconsider this practice of selective pursuit of appeals

and certiorari even though it benefits the public interest

and facilitates sound judicial management. Instead, the

government would be obliged to consider an inflexible pol-

icy of appealing (and even seeking certiorari on) the first

adverse decision rendered on a legal issue. As a result,

the courts of appeals and this Court would be burdened

prematurely and unnecessarily, and judicial eeonomy—the

touchstone of the preclusion doctrine—would be disserved.

Moreover, because of the limited docket of this Court,

and the proliferation of statutes and litigation in recent

years, constructions of the law that this Court might ulti-

mately determine to be erroneous would more often be

given finality. See, e.g., United States v. Foster Lumber

Co., 429 U.S. 32 (1976) (rejecting the view of three

courts of appeals); NLRB v. Enterprise Association of

Pipefitters, 429 U.S. 507 (1977) (rejecting the view of

five courts of appeals). Plainly, there is no interest

served by invocation of collateral estoppel in the circum-

stances of this case that would justify these detrimental

consequences.

2. The court of appeals evidently concluded that these

foregoing principles had no application in the setting of

this case because respondent was the party adverse to the

government in Stauffer I as well as in the present case

(App. A, infra, lla, 12a-138a (opinion of Weick, J.);

id. at 37a-38a (opinion of Jones, J.)). And in Judge

Weick’s view, this case was directly controlled by the

holding of Montana v,. United States, supra. We disagree

on both accounts.

a. We recognize the force that ordinarily attaches to

the distinction between relitigation of issues between par-

ties that have previously litigated them; and relitigation

when there is no such identity of parties. In the former

situation, a party ordinarily can not claim surprise when

it finds itself bound by a judgment rendered against it,

even on a question of law, if neither the factual or legal

setting is unchanged. American Medical International, Inc.

v. Secretary of Health, Education, and Welfare, supra,

677 F.2d at 121 n.24, 124 & n.46. But where, as here,

the issue is a recurring one of public law applicable to a

significant class of similarly situated persons, application

of collateral estoppel to preclude independent determina-

tion of the issues by courts that subsequently consider the

issue would—as Judge Siler recognized (App. A, infra,

40a-4la)—improperly afford the party that happened to

be involved in the prior case decided against the govern-

ment a favored position in the administration of the

law. American Medical International, Inc. v. Secretary of

Health, Education, and Welfare, supra, 677 F.2d at 124.

As the American Law Institute has recognized ( Restate-

ment (Second) of Judqments, supra, at § 28):

[Rjelitigation of [an] issue [previously determined]

in a subsequent action between the parties is not pre-

cluded {when}:

(2) The issue is one of law and * * * a new deter-

mination is warranted in order to * * * avoid in-

equitable administration of the laws * * *.

Contrary to Judge Jones’ suggestion (App. A, infra,

36a), it is no answer to observe that refusal to apply

collateral estoppel will entail a different kind of dis-

parity in the application of the laws—one that depends

upon geography. First, refusal to reach the merits need

not have that effect, for the doctrine of stare decisis and

the persuasive force of the decision of courts of coordi-

nate or inferior rank will in the long run, at least, mini-

mize such “inequities.” More importantly, perhaps, the

kind of unevenness of result permitted by redetermina-

tion of recurring questions of public law is essentially in-

offensive. It is a natural result of the operation of a sys-

tem of lower courts with limited geographical jurisdic-

tion, and a Supreme Court with control over its limited

docket.

On the other hand, application of different rules of

law to persons similarly situated is in tension with fun-

damental values of equal justice. Compromise of those

values is ordinarily warranted by the competing desiderata

of judicial economy, protection of parties against multi-

ple lawsuits, and the role preclusion ordinarily plays in

minimizing inconsistent judgments. See Montana Vv.

United States, supra, 440 U.S. at 153-154. But none of

these values is advanced by application of collateral es-

toppel in a setting such as the present one. First, be-

cause the issue is one of law and its determination en-

tails no trial-type proceedings, little if any economy is

achieved by invocation of collateral estoppel. See page 23,

infra. And whatever savings may properly be gained

when relitigation is not justifiable, are fully achievable

under the more flexible doctrine of stare decisis and

through due regard for the decisions of coordinate courts.

Second, when a recurring question of public law applica-

ble to numerous parties is presented, reliance upon pre-

clusion to govern cases arising between the parties to the

origina! litigation, would on balance foster inconsistent

judgments rather than reduce their incidence. And where,

as here, the decision afforded preclusive effect is itself in-

consistent with the decision of another court of coordinate

rank, invocation of collateral estoppel plainly cannot elim-

inate inconsistent judgments. See Parklane Hosiery Co.

v. Shore, 439 U.S. 322, 330 & n.14 (1979). The burden

of multiple lawsuits, moreover, is a significantly less

weighty consideration where, as here, multiple litigation

arises from a federal agency’s application of a uniform

interpretation of a statute applicable to a host of simi-

larly situated parties. By engaging in a regulated busi-

ness within the various judicial circuits, each of which is

ordinarily free (subject only to this Court’s decisions) to

interpret statutes for itself, respondent subjected itself to

the possibility that it would become engaged in parallel

litigation presenting a common legal question. See page

22 note 11, infra.

Contrary to Judge Jones’ suggestion (App. A, infra,

38a), respondent’s engagement in multiple litigation is

not the result of some effort by EPA to “test its policy

decisions in more than a single circuit, in circumstances

where the same defendant is sued in seriatim without

the agency attempting to exhaust its appeals on the pre-

vious judgment.” Rather, this case, like Stauffer I, arises

from respondent's applications to quash the warrants by

EPA. Although those applications were triggered by

EPA’s actions, the agency’s actions were not in any sense

intended to embroil respondent in litigation. Rather EPA

was simply performing its statutory duty to enforce

the Clean Air Act through inspections. In seeking to

avail itself of the assistance of contractor-representatives

EPA merely applied a uniform interpretation of Section

114/a) (2) applicable to others similarly situated to re-

spondent."' Thus, in the circumstances of this case the

inequity that is produced by application of collateral es-

toppel is a special circumstance that warrants an excep-

tion to the normal rule of preclusion."

‘We note that respondent operates plants in thirty states,

spanning eleven of the twelve judicial circuits. See [1982] 2

Moody’s Industrial Manual 5985. Eighteen of these plants are lo-

cated within the Ninth Circuit. Query whether under the Sixth

Circuit’s decision EPA is obliged to follow Stauffer J with respect

to these plants, notwithstanding the Ninth Circuit's contrary de-

cision in Bunker Hill. I* so, the resulting discrepancy in the ad-

ministration of the laws is substantial indeed.

‘2 The American Law Institute has rejected the analysis under-

lying Judge Jones’ suggestion that failure to apply preclusion in

a setting such as this works the greater inequity (Restatement

(Second) of Judgments, supra, § 28, comment c):

In deciding whether to apply issue preclusion * * * the choice

is between two forms of disparity in resolution of legal con-

troversy. * * * [T]he choice must be made in terms of the im-

portance of stability in legal relationships between the im-

mediate parties, the actual likelihood that there are similarly

situated persons who are subject to application of the rule in

question, and the consequences to the latter if they are subject

to different legal treatment. /n this connection it can be par-

ticularly significant that one of the parties is a government

agency responsible for continuing administration of a body of

Nor does Judge Jones’ alternative suggestion (App. A,

infra, 37a) that the inequity produced by application of

collateral estoppel js illusory here because a majority

of the Court reached the merits, support the application

of collateral! estoppel. First, because a majority of the

court of appeals relied upon collateral estoppel, there

Was no reason for the court to reach the merits, See

Montana vy, United States, supra, 440 U.S, at 152-153;

cf. Bowen vy. United States, 422 U.S, 916, 920 (1975),

Conversely, because a Separate majority reached the

of the salutary effects assigned for the doctrine gen-

erally. Neither the court, nor any of the parties was

spared any labor associated With a decision on the merits,

In short, the peculiar dual holding of the court of appeals

amply demonstrates that application of collateral estoppel

in this setting is likely to absorb, rather than to conserve,

judicial resources,

The fact that the parties in this case and Stauffer

are identical cannot justify application of collateral es.

toppel for yet another reason, At the time when the

Solicitor General decides whether to authorize an appeal,

or whether to seek review in this Court of an adverse

judgment, it is typically impossible to determine whether

future litigation wil] arise in a case involving the same

must turn instead upon the general importance of the

issue, the existence of a conflict and the other criteria

traditionally applied by this Court, If the United States

is to be bound in future litigation with the adverse party,

however, the mere possibility of future litigation with the

same party powerfully militates in favor of further re-

view in many cases that otherwise do not warrant that

extraordinary step, Thus, even in its narrowest form, the

law that affects members of the public generally, as in the case

of taz law, Refusal of preclusion is ordinarily justified tf the

effect of applying preclusion is to give one person a favored

position in current admintatration of a law.

decision of the court of appeals threatens a substantial

distortign of existing litigation standards that would ad-

versely gffect the management of scarce judicial resources.

b. Contrary to Judge Weick'’s view, this case is not

controlled by the holding of Montana v, United States,

itself. As explained in our reply brief in Mendoza (at

9) the policy and practical considerations we outlined

there and here had little application in Montana; for

the issue presented there could arise in only two forums—

the state courts in Montana and the United States Dis-

trict Court for Montana.'® The issue, too, was not one

involving a body of law applicable to a class of similarly

situated persons, but one affecting the proprietary inter-

est of the United States. The United States did not argue

in Montana, as it does here, that the application of the

preclusion doctrines was inappropriate in light of the

government's special attributes and responsibilities, and

the Court’s opinion does not reflect any view respecting

our present contentions. See also pages 26-27, infra.

ce. Several other special considerations militate against

application of collateral estoppel in the setting of this

case, First is the existence of the conflicting decision

of the Ninth Circuit in Bunker Hill. See Parklane Ho-

siery Co. V. Shore, supra, 439 U.S. at 330 & n.14. Of

course, the decision of the Ninth Circuit was rendered

after the district court’s decision in this case, but that

is equally true of the Tenth Circuit’s decision in Stauffer

I, Indeed, it is unclear what significance was attributed

to the appellate affirmance in Stauffer J. Insofar as the

court of appeals’ collateral estoppel ruling rests upon the

Tenth Circuit's decision in Stauffer I, an anomaly is

4 This consideration is especially significant because in Montana,

unlike this case, the government had engaged in conduct that may

implicate the core concerns underlying the preclusion doctrines.

It had litigated the issue to a conclusion in the Supreme Court of

Montana, noted an appeal to this Court, then dismissed the appeal

and pursued its parallel action in the federal court. The federal

action, moreover, had been filed just after the action in state court

was filed, and had been stayed upon the government's stipulation

pending resolution of the state court litigation. 440 U.S. at 161.

created. The judgment of the district court was reversed

even though the court committed no error on any matter

presented to it. See 82-849 Reply Br. at 7, And insofar

as the collateral estoppel ruling rests upon the decision of

the Wyoming district court, undue weight was afforded

to the decision of a district court in another circuit. See

Restatement (Second) of Judgments, supra, at § 29, com-

ment i. These anomalies are the inevitable result of resort

to the rigid preclusion doctrine to govern a recurring ques-

tion of public law affecting a class of similarly situated

persons. By contrast, reliance upon the more flexible doc-

trine of stare decisis and due regard for the persuasive

force of the decision of coordinate and inferior courts en-

tails no such difficulties.

Reliance upon collateral estoppel with respect to legal

issues is particularly inappropriate in the context of the

difficult questions of statutory interpretation that arise

under our complex environmental laws. See, ¢.g., EJ.

DuPont DeNemours & Co. Vv. Train, 480 U.S. 112, 185 &

n.26 (1977); Western Oil & Gas Ass'n V. EPA, supra,

633 F.2d at 808. And this Court has frequently entered

into such controversies only after a substantial accumula-

tion of appellate jurisprudence. See, ¢.9., Union Electric

Co. Vv. EPA, 427 U.S, 246, 254-255 (1976); Train v.

NRDC, 421 U.S, 60, 72-75 (1975).* This practice may be

based in part upon the provisions of the major environ-

mental statutes assigning jurisdiction to address certain

claims upon a geographical basis, while others are treated

as matters of national concern. See, ¢.g., 33 U.S.C.

1369'b) (Clean Water Act); 42 U.S.C. (Supp. IV)

7607(b) (1) (Clean Air Act). But even where such ex-

plicit statutory provision is not made, questions of law

under the environmental control statutes are capable of

arising in every jurisdiction, Because of the substantial

local interest in the manner in which these important

‘* The Court has also denied certiorari notwithstanding an ac-

knowledged confiict among the circuits in appropriate circumstances.

See, ¢.g., United States Steel Corp. v. EPA, 606 F.2d 288 (7th Cir.

1979), cert. denied, 444 U.S, 1085 (1980).

issues are resolved, it appears particularly inappropriate

to import the rigid issue preclusion doctrine into this

area, Moreover, because of the prominent role in environ-

mental litigation of large industrial corporations, national

trade associations and national environmental advocacy

groups, many of which do business or conduct litigation

in manifold jurisdictions, any rule that assigns control-

ling weight to the identity of parties in determining the

applicability of collateral estoppel in this setting provides

an extra incentive for forum shopping, and also fosters

indefensible inequities in the administration of the law

to similarly situated parties.”

d. The decision of the court of appeals also fails to

accord proper effect to the “unmixed questions of law” ex-

ception to the preclusion doctrine announced in United

States v. Moser, supra, 266 U.S. at 242. See also Mon-

tana Vv. United States, supra, 440 U.S. at 162-163; ef.

Commissioner Vv. Sunnen, 333 U.S. 591, 601 (1948) (sep-

arable facts rule). The court of appeals thought to avoid

the application of this doctrine by characterizing the issue

presented as one turning upon a “fact, question or right

distinctly adjudged” in Stauffer J, rather than a “rule of

law” enunciated in an action “upon a different demand”

16 By way of illustration, we note that United States Steel Cor-

poration challenged the EPA's failure to comply with the notice and

comment requirements of 5 U.S.C. 553 in promulgating final rules

designating various areas as exceeding nationa! ambient air quality

standards for total suspended particulates in the Fifth Circuit,

United States Steel Corp. v. EPA, 595 F.2d 207, modified, 598 F.2d

915 (1979), the Seventh Circuit, United States Steel Corp. v. EPA,

605 F.2d 283 (1979), cert. denied, 444 U.S. 1035 (1980), and in the

Eighth Circuit, United States Steel Corp. v. EPA, 649 F.2d 572

(1981). Other companies challenged the EPA's procedure in the

Third Circuit, Sharon Steel Corp. v. EPA, 597 F.2d 377 (1979), the

Sixth Circuit, Republic Steel Corp. v. Costle, 621 F.2d 797 (1980),

the Ninth Circuit, Western Oil & Gas Ass'n Vv. EPA, supra, and the

District of Columbia Circuit, New Jersey Department of Environ-

mental Protection v. EPA, 626 F.2d 1038. It would have been

anomalous in the extreme for the result in any of those cases

to have turned upon the presence or absence of a particular party—

United States Steel.

(App. A, infra, 12a-18a; see United States Vv. Moser, su-

pra, 266 U.S. at 242). But whatever gloss Montana V.

United States, supra, may have placed upon the prin-

ciples announced in Moser or Sunnen** we submit that

no “fact, question, or right” decided in Stauffer I is con-

trolling here and that this case does arise “upon a differ-

ent demand” because the inspection in this case pertained

to a different plant located in a different judicial circuit.”

Because of the substantial public interest in allowing in-

dependent examination of recurring questions of public

law by the various courts of appeals, this factor, unlike

the factual differences deemed immaterial in Montana,

440 U.S. at 158-163, serves to render the rigid issue pre-

clusion doctrine inapplicable.

3. a. Relatively little need be said respecting the court

of appeals’ decision on the merits of the question of statu-

tory interpretation. As the court of appeals acknowledged,

its decision conflicts directly with the Ninth Circuit’s de-

cision in Bunker Hill Co. v. EPA, 658 F.2d 1280 (1981).

The latter decision in turn expressly disapproves the

Tenth Circuit's decision in Stauffer I.

The court of appeals’ decision eliminates an important

tool employed by the EPA to assure enforcement of the

Clean Air Act through its overview inspection program.

If private contractors may not be designated to assist in

conducting Section 114/a)(2) inspections, the agency’s

ability to operate an effective overview inspection program

16 Compare American Medical International, Inc. v. Secretary of

Health, Educction, and Welfare, supra, 677 F.2d at 119-121; Hicks

Vv. Quaker Oats Co., 662 F.2d 1158, 1166-1167 (5th Cir. 1981);

Union Carbide Corp. Vv. Commissioner, 671 F.2d 67, 68 (2d Cir.

1982); Starker v. United States, 602 F.2d 1341, 1345-1347 (9th Cir.

1979) with Western Oil & Gas Ass'n V. EPA, supra, 633 F.2d at

808-809. Unlike the courts of appeals, this Court has never stated

that Montana alters the rule of Commissioner Vv. Sunnen; in any

event Montana itself treats Moser as good law. 440 U.S. at 162.

17 The Restatement (Second) of Judgments, supra, § 28, comment

c, suggests that application of the distinction drawn in Moser

(266 U.S. at 242) depends upon whether preclusion would give one

person “a favored position in the administration of current law.”

See page 22 note 12, supra.

may be compromised. For instance, 22 technically trained

employees employed in EPA’s Region IV (the adminis-

trative unit encompassing Tennessee) are responsible for

monitoring compliance by approximately 4600 major sta-

tionary sources of air pollution located in an eight-state

area. See Affidavit of James T. Wilburn ‘App. E, infra,

59a).’* EPA has relied upon contractor-representatives

both because its own enforcement resources are limited

and because private contractors often possess consider-

able expertise and experience with certain industrial pro-

cesses of inspection interest (id. at 60a). If EPA may not

use the services of contractor-representatives, it will be

obliged to hire employees who possess the requisite tech-

nical expertise. Because such expertise may be industry-

specific, the hiring of numerous experts, each possessing

a narrow technical specialty may be required, even though

the services of such experts are not necessarily needed on

a full-time basis. Accordingly, the decision of the court

of appeals is likely to restrict EPA’s ability to fulfill its

statutory duties in the most efficient manner.

b. On the merits, our contentions are largely sum-

marized in the decision of the district court below, and in

the decision of the Ninth Circuit in Bunker Hill, upon

which we rely. We note here only that the court of ap-

peals’ contrary reasoning is severely flawed.

First, there is no sufficient reason for disregarding

what the court of appeals acknowledged (App. A, infra,

22a) to be the plain meaning of the term authorized ‘“‘rep-

resentative.” That term, on its face, embraces all duly

designated agents of the Administrator. Second, the court

of appeals improperly attributed significance to the ab-

sence of comment in the legislative history of Section 114

(a) (2) upon the fact that the Senate version enacted into

law was broader than its House counterpart. See Har-

rison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980).

At the same time, the court of appeals gave undue weight

18 This affidavit was submitted to the court of appeals in con-

nection with the government’s opposition to Stauffer’s motion for

a stay pending appeal, and is part of the record.

to language in the 1970 Conference report. Because the

Report simply does not focus on the identity of persons

authorized to make inspections, the casual descriptions of

the Senate and House bills employed in the Conference

Report reflect no view as to the question at issue. See

Bunker Hill, supra, 658 F.2d at 1283-1284.

The court of appeals’ effort to “harmonize” Section

114(a), (c) and (d) of the Act ‘App. A, infra, 20a-22a)

falls of its own weight. Even if policy considerations

suggest that intergovernmental notices required by Sec-

tion 114/d) should be given by EPA personnel rather

than contractor-representatives, it does not follow that

Congress employed the term representative in that setting

to exclude contractors. Rather, absent any actual indica-

tion of congressional! intent, it is more reasonable to as-

sume that Congress was content to rely upon EPA’s

prudence on this point. In any event, because the notices

required by Section 114/d) do not require the technical

expertise required for actual inspections, there is no rea-

son to believe that Congress even considered the restric-

tion interpolated by the Court.”

Finally, contrary to the court of appeals’ conclusion, a

comparison of the motor vehicle engine inspection pro-

visions of the Act to Section 114(a) (2) suggests that

the provisions are different in scope. And contrary to the

court’s suggestion there is nothing inherently irrational

about such a distinction, or about a distinction between

the inspection provisions of the Clean Water Act and

Section 114/a) (2).

4, Although the first question we present is closely

related to that under review in United States v. Mendoza,

No, 82-849, it appears inappropriate simply to hold this

case for disposition in light of Mendoza. First, this case

will not necessarily be controlled by a decision in Men-

19 We note as well that, contrary to the court of appeals’ augges-

tion (App. A, infra, 22a) an interpretation of the term representa-

tive employed in Section 114(c) that includes persons other than

agency employees does not suggest that inspections under Section

114(a) may only be carried out by non-employees.

doza. Unlike this case, collateral estoppel was there ap-

plied against the United States even though the opposing

party had not participated in the prior case. On the other

hand, the Sixth Circuit, unlike te Ninth Circuit in Men-

doza (see 82-849 Pet. App. 17a n.14) went so far as to

hold that the United States was required to seek certi-

orari unless it planned to acquiesce in the adverse de-

cision of a court of appeals. Finally, the underlying issue

in Mendoza is one of constitutional Jaw; preclusion in

that setting is particularly troublesome because the ad-

verse decision is not subject to legislative correction. Be-

cause this case presents an important and recurring

variation upon the question to be addressed in Men-

doza, plenary consideration of this case in tandem with

Mendoza appears appropriate. In any event, because of

the dual holding of the court of appeals, disposition in

light of Mendoza is not possible here. Accordingly, we

suggest this case merits plenary consideration.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

REX E. LEE

Solicitor General

MARY L. WALKER

Acting Assistant Attorney General

Loul!s F, CLAIBORNE

Deputy Solicitor General

JOSHUA I, SCHWARTZ

Assistant to the Solicitor General

Dirk D. SNEL

Of Counsel: JUDSON W. STARR

ROBERT M. PERRY KATHLEEN P,. DEWEY

General Counsel Attorneys

CHRISTOPHER HERMAN

Attorney

Environmental Protection Agency

FEBRUARY 1988

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-5311

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

STAUFFER CHEMICAL COMPANY,

DEFENDANT-APPELLANT

Appeal from the United States District Court

for the Middle District of Tennessee

Decided and Filed July 7, 1982

Before WEICK,* Senior Circuit Judge, JoNEs, Cir-

cuit Judge and SILeR,** U.S. District Judge.

WEICK, Senior Circuit Judge, delivered the opinion

of the Court. JONEs, Circuit Judge, (pp. 29-32) and

SILER, District Judge, (pp. 33-35) delivered separate

concurring opinions,

* Judge Weick became a Senior Circuit Judge at the close

of business on December 31, 1981.

** Honorable Eugene E. Siler, Jr., Judge, United States

District Court for the Eastern and Western Districts of

Kentucky, sitting by designation.

WEICK, Senior Circuit Judge. Stauffer has ap-

pealed to this court from an order of the district

court denying its motion to quash an invalid admin-

istrative search warrant issued ex parte by a United

States Magistrate, which authorized EPA to conduct

an air pollution inspection of private commercial

property belonging to Stauffer, namely, its plant lo-

cated at Mt. Pleasant, Tennessee, said inspection to

be made not only by authorized employees of EPA

and the State of Tennessee, but also by unauthorized

private contractors objected to by Stauffer to protect

it from disclosure of its trade secrets or other propri-

etary information to competitors or others with a

conflict of interest. Stauffer refused to permit the

inspection to include the employees of private con-

tractors unless such private contractors signed a non-

disclosure agreement to protect Stauffer against dis-

closure by private contractors of Stauffer’s trade

secrets. The private contractors refused to execute

the nondisclosure agreements prepared by Stauffer

and Stauffer refused to permit the inspection of its

property. EPA cited Stauffer with contempt of court

for refusing the inspection. Stauffer then filed its

motion to quash. The contempt citation and motion to

quash were heard together by the district judge. He

denied the motion to quash holding that the phrase

“authorized representative” of the Administrator, as

used in Section 114(a) (2) of the Clean Air Act, 42

U.S.C. § 7414(a) (2)’ authorizes the EPA to use em-

1 Section 114(a) (2) of the Clean Air Act, 42 US.C. § 7414

(a) (2), reads 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

ployees of private contractors in making such inspec-

tions and that Stauffer was required to comply with

the warrant. He dismissed the contempt citation hold-

ing that “[bJecause Stauffer legitimately believed

that private contractors were not authorized repre-

sentatives under the Clean Air Act, EPA’s motion for

contempt is denied. If Stauffer’s subsequently refuses

entry to its Mt. Pleasant plant to authorized repre-

sentatives of the Administrator presenting proper

credent'als and a warrant, a contempt citation shall

issue.”” This constituted a final appealable order,

The »pinion of the district court in the present case

is reported in United States vy. Stauffer Chemical Co.,

511 F. Supp. 744 (M. D. Tenn. 1981).

Stauffer raises important questions on appeal. It

argues that the EPA has no authority to obtain ex

parte search warrants which would deprive Stauffer

of the opportunity to contest the validity of the war-

rant and a search and seizure in pursuance thereof.

Stauffer also contends that the phrase “authorized

representative” of the EPA Administrator, used in

section 114(a)(2) of the Clean Air Act, means full

time employees of the EPA, not employees of private

contractors. Further, Stauffer maintains that the

EPA is collaterally estopped from bringing this ac-

tion, because the parties have already litigated the

question of who can act as an authorized representa-

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 re-

quired under paragraph (1), and sample any emissions

which such person is required to sample under par-

graph (1).

(' nphasis added.)

tive of the EPA in a prior lawsuit in the federal

courts in Wyoming, which decided the question in

favor of Stauffer and against EPA. Stauffer Chem-

ical Co, v. EPA, 14 E.R.C. 1729, affirmed 647 F.2d

1075 (10th Cir. 1981).

Because we agree with Stauffer that the present

action is governed by collateral estoppel and res judi-

cata, it is unnecessary to reach other issues, but we

will treat all of the issues because they were briefed

by both parties.

The Clean Air Act, 42 U.S.C. §§ 7401 et seq., sets

up a dual state-federal system of air pollution en-

forcement. Under the Act, the Administrator of the

EPA is responsible for establishing national ambient

air quality standards. 42 U.S.C. § 7409. The states

are then primarily responsible for enforcing these

standards, subject to supervision and approval by the

EPA, See 42 U.S.C. $§ 7407, 7410, 7412. Pursuant

to its mandate under the Clean Air Act, the EPA

conducts an “Overview Inspection Program” in which

it annually inspects approximately ten percent of the

major stationary sources of air pollution in each

state. Establishments which are selected for over-

view inspection have already been inspected by state

air pollution authorities at some prior time, with the

results of the state inspection being submitted to the

EPA. The purpose of the overview inspections is to

evaluate the state’s performance in implementing the

Clean Air Act by comparing the results of the over-

view inspection with the previously-reported results

of the state’s inspection.

The State of Tennessee is part of the Environ-

mental Protection Agency’s Region IV, which also

includes North Carolina, South Carolina, Kentucky,

Alabama, Florida, and Georgia.

On October 17, 1979, Mr. John W. Hund, an en-

vironmental scientist employed by the EPA’s Enforce-

ment Division in Region IV, conducted an unan-

nounced overview inspection of Stauffer Chemical

Company’s elemental phosphorus furnace plant in

Mt. Pleasant, Tennessee. He was accompanied by

two employees of the Tennessee Division of Air Pol-

lution Control. A significant source of air pollution,

the number three nodulizing kiln, was not in opera-

tion that day. As a result, the amount of pollutants

being emitted was not representative of normal

operating conditions, so Mr. Hund decided that a

follow-up inspection would be necessary.

The follow-up inspection was set for March 27,

1980, On that day, Hund returned to the Mt. Pleas-

ant Plant, along with an employee of the Tennessee

Division of Air Pollution Control. He was also ac-

companied this time by Ronald Hawks and Gary

Saunders, who were employees of a private company

under contract with the EPA, PEDCo Environmen-

tal, Inc. (“PEDCo”). Hawks and Saunders were

brought along on this visit because they had recently

conducted an EPA overview inspection at Stauffer’s

elemental phosphorus furnace plant in Tarpon

Springs, Florida, and thus were familiar with the

processes and equipment involved.

The group arrived at the plant and explained the

purpose of their visit. They were informed by the

plant manager that Stauffer had no objection to an

inspection being conducted by the EPA and Tennessee

state employees, but that it was contrary to company

policy to admit private individuals to company prem-

ises unless they first signed a suitable nondisclosure

and hold harmless agreement.* The team then left

the plant without conducting the inspection.

During the month of April, negotiations were car-

ried on between Stauffer company headquarters in

Connecticut, PEDCo and the EPA in an attempt to

arrive at a mutually agreeable nondisclosure agree-

ment. PEDCo employees under contract with the

EPA had previously been admitted to Stauffer’s Sil-

ver Bow, Montana plant after signing a nondisclosure

agreement. Therefore, PEDCo forwarded to Stauffer

a copy of the agreement which had been used at the

Montana plant, together with some suggested modifi-

cations requested by the EPA. Stauffer sent back a

counter proposal, incorporating many of the provi-

sions suggested by the EPA, but also adding some

new ones, Certain of Stauffer’s proposals, including

one giving Stauffer exclusive control over what areas

of the plant were to be inspected and another one

requiring the EPA to give Stauffer two weeks ad-

vance notice of any inspection, were deemed unac-

ceptable by PEDCo and the EPA. Consequently, they

rejected this proposed agreement on May 5, 1980.

* The stated reason for this policy is to protect proprietary

information as to trade secrets which outsiders might become

privy to, and which might fall into the wrong hands and sub-

ject Stauffer to substartial damages for which it might have

difficulty to recover complete reimbursement. For instance,

Stauffer alleges that PEDCo also serves as a contractor for

some of Stauffer’s competitors.

The PEDCo employees in the instant case, Hawks and

Saunders, had previously been admitted to Stauffer’s plant in

Tarpon Springs, Florida, by its plant manager, without be-

ing asked to sign any nondisclosure agreement. Stauffer

maintains that this was unauthorized and was in violation

of company policy and should not have been permitted.

Thereafter, the parties had no further contact until

August.

On August 7, 1980, the EPA submitted an appli-

cation and affidavits for a search warrant to inspect

the Mt. Pleasant plant, which the magistrate granted

ex parte, The warrant permitted

duly authorized full-time employees [of EPA],

and accompanying, authorized representatives

under contract to EPA ... to have entry upon

[plant] premises during normal operating hours

for the purpose of conducting. an inspection,

sampling, and monitoring pursuant to Section

114 of the Clean Air Act, 42 U.S.C, § 7414....

There followed a long list of plant facilities and rec-

ords which the inspectors were to have access to.

Armed with the warrant, an inspection team con-

sisting of EPA’s Hund, Ms. Carol Donohue of the

Tennessee Division of Air Pollution Control, and

Messrs. Hawks and Saunders of PEDCo went to

Stauffer’s Mt. Pleasant plant on August 7. They

were also accompanied by the EPA attorney. Again

there was an impasse. After conferring with com-

pany headquarters by telephone, plant officials in-

formed the inspectors that the state and federal em-

ployees were free to conduct an inspection, but that

the PEDCo employees would not be admitted without

signing a nondisclosure agreement. Once again, the

group left without conducting an inspection.

The next day, the EPA filed a petition in district

court to hold Stauffer in contempt for its failure to

honor the warrant. At the same time, Stauffer filed

a motion to quash the warrant and for a temporary

restraining order enjoining its enforcement. (The

latter request was subsequently withdrawn by mutual

agreement.) A consolidated hearing on both motions

was held in the District Court for the Middle District

of Tennessee on August 29, 1980. The court issued

its decision on April 17, 1981, holding that the term

“authorized representative” in section 114(a) (2) of

the Clean Air Act “may include private contractors.”’

511 F. Supp. at 746. Accordingly, the court refused

to quash the warrant. However, it also declined to

hold Stauffer in contempt, finding that Stauffer legiti-

mately believed that private contractors were not au-

thorized representatives for purposes of clean air

inspections. Execution of the warrant has been

stayed pending this appeal.

COLLATERAL ESTOPPEL

A threshold issue in the present appeal is Stauffer’s

contention that consideration of this case is governed

by the doctrine of collateral estoppel because the same

parties have litigated the identical issues previously

resulting in a decision in favor of Stauffer’s and

against EPA by the federal district court in Wyo-

ming and affirmed by the United States Court of Ap-

peals for the Tenth Circuit.

As noted previously, the hearing in the federal dis-

trict court in the present case was held on August 29,

1980. Shortly before that, on June 23, 1980, the fed-

eral district court in Wyoming issued’ an opinion

holding that the phrase “authorized representative”’

in Section 114(a) (2) of the Clean Air Act, 42 U.S.C.

§ 7414(a)(2), does not include private contractors,

particularly competitors with a conflict of interest or

an axe to grind who may be interested in obtaining

Stauffer’s trade secrets. Jn re Stauffer Chemical

Company, 14 E.R.C. 1787 (D. Wyo. 1980), called

“Stauffer I’. (That decision was subsequently af-

firmed on appeal sub. nom Stauffer Chemical Co. v.

Environmental Protection Agency, 647 F.2d 1075

(10th Cir. 1981) ).

The facts in Stauffer I were identical to those in

the instant case except they arose in a plant of

Stauffer’s at a different location. One morning in

April 1980 a team of EPA inspectors arrived unan-

nounced at Stauffer’s Leefe Plant near Sage, Wyo-

ming, in order to conduct a Clean Air Act oversight

inspection. The team consisted of state and EPA em-

ployees, and two employees of a private contractor

GCA Corporation. Stauffer was willing to admit the

government employees but not the GCA personnel,

unless they first signed a nondisclosure and hold

harmless agreement. The EPA team did not agree to

this condition and left without conducting the inspec-

tion. EPA then obtained an ex parte administrative

search warrant from a U.S. Magistrate authorizing

it to conduct an inspection of the Leefe Plant through

the use of the two GCA employees. When the inspec-

tors returned to the plant with the warrant, Stauffer

still refused to admit the GCA employees unless they

signed the agreement. This condition was again re-

fused, and the team again departed without accom-

plishing its mission. Stauffer then filed an applica-

tion for a temporary restraining order enjoining EPA

and the two GCA employees from executing the war-

rant and a motion to quash the warrant, and the dis-

trict court after an extensive hearing, permanently

enjoined EPA from using GCA employees or employ-

ees of other companies under similar contract with

EPA, in inspections of any Stauffer plant in Wyo-

ming without the permission of Stauffer. Upon ap-

peal by EPA the judgment of the district court was

10a

affirmed. Stauffer 1, 647 F.2d at 1076-77 (10th Cir.

1981).

Stauffer thercfore contends that, because the par-

ties and the issues in Stauffer I] and the present case

were identical, and the issues were resolved against

EPA in the prior litigation, the government acting

through its agency, EPA is collaterally estopped from

relitigating in this action the issue of who can be an

“authorized representative’ under Section 114 of the

Act.

In Montana vy. United States, 440 U.S. 147 (1979),

Justice Marshall, who wrote the opinion for an almost

unanimous court with only one dissenting opinion

stated:

A fundamental precept of common-law adjudi-

cation, embodied in the related doctrines of col-

lateral estoppel and res judicata, is that a “right,

question or fact distinctly put in issue and di-

rectly determined by a court of competent juris-

diction . . . cannot be disputed in a subsequent

suit between the same parties or their privies

.... Southern Pacific R. Co. v. United States,

168 U.S. 1, 48-49 (1897). Under res judicata, a

final judgment on the merits bars further claims

by parties or their privies based on the same

cause of action. Cromwell v. County of Sac, 94

U.S. 351, 352 (1877); Lawlor v. National Screen

Service Corp., 349 U.S. 322, 326 (1955); 1B J.

Moore, Federal Practice § 0.405[1], pp. 621-624

(2d ed. 1974) (hereinafter 1B Moore) ; Restate-

ment (Second) of Judgments § 47 (Trent. Draft

No. 1, Mar. 28, 1973) (merger) ; id. § 48 (bar).

Under collateral estoppel, once an issue is actu-

ally and necessarily determined by a court of

competent jurisdiction, that determination is con-

lla

clusive in subsequent suits based on a different

cause of action involving a party to the prior

litigation. Parklane Hosiery Co. vy. Shore, 439

U.S. 322, 326 n.5 (1970); Scott, Collateral Es-

toppel by Judgment, 56 Harv. L. Rev. 1, 2-3

(1942); Restatement (Second) of Judgments

§ 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue

preclusion). Application of both doctrines is cen-

tral to the purpose for which civil courts have

been established, the conclusive resolution of dis-

putes within their jurisdictions. Southern Pacific

R. Co., supra, at 49; Hart Steel Co. v. Railroad

Supply Co., 244 U.S. 294, 299 (1917). To pre-

clude parties from contesting matters that they

have had a full and fair opportunity to litigate

protects their adversaries from the expense and

vexation attending multiple lawsuits, conserves

judicial resources, and fosters reliance on judi-

cial action by minimizing the possibility of in-

consistent decisions.

As to res judicata, the Supreme Court, in an opin-

ion delivered recently by Justice Rehnquist in Fed-

erated Department Stores, Inc. v. Moitie, 452 U.S.

394, 398 (1981) stated:

There is little to be added to the doctrine of

res judicata as developed in the case law of this

Court. A final judgment on the merits of an ac-

tion precludes the parties or their privies from

relitigating issues that were or could have been

raised in that action. Commissioner v. Sunnen,

333 U.S. 591, 597 (1948); Cromwell v. County

of Sac, 94 U.S. 351, 352-353 (1877).

Since the parties as well as the issues of fact and

law in the present case and Stauffer I were identical,

12a

there is no valid reason why they should be relitigated

a second time in the present case. It brings up the

question, how many times does the government have

to lose a case before either the doctrines of collateral

estoppel or res judicata are applied? If we were

dealing with private parties rather than the govern-

ment, there would be no question about it. If EPA

really believed that the decision of the Tenth Circuit

in Stauffer I was wrong, it could have petitioned the

Supreme Court for certiorari, but it did not avail it-

self of that remedy, and it is too late to do so now.

EPA cannot collaterally attack the Tenth Circuit de-

cision in the present case.

The court in Montana also addressed the exception

of “unmixed questions of law” quoting on page 162

from United States v. Moser, 266 U.S. 236, 242

(1924) as follows:

“Where, for example, a court in deciding a case

has enunciated a rule of law, the parties in a

subsequent action upon a different demand are

not estopped from insisting that the law is other-

wise, merely because the parties are the same in

both cases. But a fact, question or right dis-

tinctly adjudged in the original action cannot be

disputed in a subsequent action, even though the

determination was reached upon an erroneous

view or by an erroneous application of the law.”

Ibid. (emphasis added). P. 162.

It is noteworthy that “[a] fact, question, or right

distinctly adjudged in the original action, cannot be

disputed in a subsequent action, even though the de-

termination was reached upon an erroneous view or

by an erroneous application of the law.” Since the

fact, question or right in the present case was dis-

13a

tinctly adjudged in Stauffer I the exception in Moser

is inapplicable here.

We therefore hold that the Environmental Protec-

tion Agency is barred from relitigating these issues

with Stauffer.

III

The central issue in this case if not barred by col-

lateral estoppel and res judicata is the meaning of

the phrase “authorized representative’ in section

114(a)(2) of the Clean Air Act.’ 42 U.S.C. § 7414

(a) (2). That section provides:

(a) the Administrator or his authorized repre-

sentative, 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 para-

graph (1) of this section are located, and

(B) may at reasonable times have access to and

copy any records, inspect any monitoring equip-

ment or method required under paragraph (1),

and sample any emissions which such person is

required to sample under paragraph (1).

To date, few courts have been called upon to consider

this question. In addition to the lower court in the in-

stant case, the Ninth and Tenth Circuits have recently

examined this issue, reaching opposite conclusions.

See Bunker Hill Company Lead and Zine Smelter v.

United States Environmental Protection Agency, 658

* Throughout this opinion, “the Act” will be used to refer

to the Clean Air Act, and “section 114” will refer to section

114 of the Clean Air Act, 42 U.S.C. § 7414.

l4a

F.2d 1280 (9th Cir. 1981) ; Stauffer Chemical Com-

pany v. Environmental Protection Agency, 647 F.2d

1075 (10th Cir. 1981). These cases are discussed,

infra.*

As noted earlier, the district court in the present

case held that the phrase “authorized representative”

in section 114(a)(2) of the Act may include private

contractors. 511 F. Supp. at 746. The court founded

its opinion on three main points: the plain meaning

of the words used; a comparison with section 114(c)

of the Act; and rejection of a statement in the legis-

lative history of the Clean Water Act which refers to

the Clean Air Act.

The court discussed the plain meaning of the words

“authorized representative,” which were used in the

Senate bill, as opposed to the phrase “officers or em-

ployees,”’ which was used in the House bill, and rea-

soned that the adoption of the Senate version evi-

denced a deliberate choice to give the EPA broader

authority in making inspections because the plain

meaning of “representative” is broader than “officers

or employees.” 511 F. Supp. at 747. The court ap-

plied similar reasoning to the difference between sec-

tion 114(c) and the motor vehicle inspection provi-

sions of the Act, found in sections 206(c) and

208(a), 42 U.S.C. $§ 7525(c) and 7542(a). Since the

latter sections use the phrase “officer or employee,”

the court concluded that Congress must have made a

deliberate choice to use a broader term in section

114(a). Id. at 746.

* The issue was also raised recently in the Fourth Circuit,

but the case was remanded without reaching the merits.

Aluminum Co. of America Vv. United States Environmental

Protection Agency, 668 F.2d 499 (4th Cir. 1981).

lida

The district court also placed great weight on the

use of the phrase “officers, employees, or authorized

representatives” in section 114(c) of the Act, 42

U.S.C. § 7414(c). That section allows the Adminis-

trator to disclose confidential information obtained

in the course of section 114(a) inspections to “other

officers, employees, or authorized representatives of

the United States” who have a legitimate need for it.

As used in section 114(c), “authorized representa-

tives’ clearly means someone other than employees,

because otherwise it would be redundant. Therefore,

reasoned the court, “authorized representative” must

mean someone other than employees in section 114(a)

as well. Zd.

The third foundation of the district court’s holding

was its decision to reject as non-authoritative a state-

ment in the legislative history of the Clean Water

Act, which was enacted after the Clean Air Act, to

the effect that the Clean Air Act does not permit con-

tractors to be used as “authorized representatives.”

(This passage will be discussed further, infra.) The

court admitted that this statement was troubling, but

concluded that post enactment statements of legisla-

tive intent are an unreliable guide and should not be

followed. Jd. at 747.

In Bunker Hill Co. Lead and Zine Smelters v.

United States Environmental Protection Agency, 658

F.2d 1260 (9th Cir. 1981), the Ninth Circuit reached

the same result as the district court in the case at

bar. The Bunker Hill court reasoned that the plain

meaning of “authorized representative” is broader

than “officers or employees.” 658 F.2d at 1283, and

that the Clean Water Act legislative history was en-

titled to no weight because it came after the enact-

ment of the Clean Air Act. Jd. at 1281. The court

also found that Congress had tacitly ratified EPA’s

l6a

use of private contractors by approving appropria-

tions for their use. Jd.

The Tenth Circuit arrived at the opposite conclu-

sion. In Stauffer Chemical Co. v. Environmental Pro-

tection Agency, 647 F.2d 1075 (10th Cir. 1981),

which we have been referring to as Stauffer I, the

court held that a private contractor cannot be an “au-

thorized representative” of the Administrator under

section 114(a)(2). The Tenth Circuit rejected the

plain meaning approach, and relied instead upon the

legislative history of section 114(a), which speaks of

the Department of Health, Education and Welfare

(DHEW) (now EPA), “personnel,” and noted that

employees of a contractor are not EPA personnel, but

the contractor’s personnel. 647 F.2d at 1078. The

court also found the Clean Water Act legislative his-

tory persuasive. While noting that post-enactment

statements should generally be accorded less weight

than contemporaneous legislative history, the court

concluded that the Clean Water Act legislative his-

tory should be considered because of the close subject

matter relationship beween the two acts and the short

time span between them. Jd. at 1079. In addition, a

holding that private contractors could be authorized

representatives under Section 114(a) would create an

unacceptable anomaly between the Clean Air and

Clean Water Acts, i.e., EPA could use private con-

tractors to conduct inspections under the Clean Air

Act, but not under the Clean Water Act, even though

the wording of the two statutes is virtually identical.

Id.

With these conflicting precedents in mind, we be-

gin our analysis. At the outset, let us frankly admit

that although consistency is a virtue in statutory in-

17a

terpretation, various portions of the Clean Air Act

are not consistent with each other, making it im-

possible to arrive at an entirely satisfying result.

See Citizens to Save Spencer County v. United States

Environmental Protection Agency, 600 F.2d 844, 870

(D.C. Cir. 1979). The statute itself does not define

“representative.” See 42 U.S.C. § 7602. As the court

below noted, both parties in this case have submitted

excellent briefs. Indeed, this case is an apt illustra-

tion of Chief Justice Marshall’s comment that

“Tw]here the mind labors to discover the design of

the legislature, it seizes everything from which aid

can be derived... .”’ United States v. Fisher, 6 U.S.

(2 Cranch) 358, 386 (1805). The lower court was

also correct, though, in saying that there is little that

could make the resolution of this problem easier. On

balance, however, we believe the Tenth Circuit’s posi-

tion is the correct one.

The district court and the Ninth Circuit relied

upon the plain meaning of the word “representative.”

However, the plain meaning of statutory language is

not always decisive. Lynch v. Overholser, 369 U.S.

705, 710 (1962); Missouri Pacific Railroad Co. v.

Austin, 292 F.2d 415 (5th Cir. 1961). This is es-

pecially true when the legislative history suggests a

different interpretation. Cleary v. Chalk, 488 F.2d

1315 (D.C. Cir. 1973). The legislative history of an

act must be examined in order to ascertain Congres-

sional intent, even though the statutory language ap-

pears to be plain. United States v. Kelly, 328 F.2d

227 (6th Cir. 1964); United States v. Hepp, 497 F.

Supp. 348 (N.D. Iowa 1980); see Lewis v. United

States, 445 U.S. 55 (1980).

The Clean Air Act as originally enacted in 1955

was extensively revised and enlarged by the Clean

18a

Air Act Amendments of 1970, P. L. 91-604. The

final version of the Clean Air Act which emerged was

an amalgam of the House and Senate bills, title I,

relating to stationary air pollution sources, being de-

rived from the Senate bill and title II, pertaining to

motor vehicles, coming from the House bill. The

house bill, H.R. 17255, consistently used the phrase

“officers or employees” throughout. Thus section

112(f) of H.R. 17255 provided:

For purposes of enforcement of this section, offi-

cers or employees duly designated by the Secre-

tary, upon presenting appropriate credentials

and a written notice to the owner or person in

charge, are authorized to enter, at reasonable

times, any establishment which the Secretary has

reason to believe is or may be in violation of reg-

ulations issued under this section to determine

whether any such violation is occurring... .

H.R. 17255, 91st Cong., 2d Sess. §$112(f) (1970),

reprinted in A Legislative History of the Clean Air

Amendments of 1970 (hereafter cited as “Air Leg.

Hist.”’) at 923 (1974) (emphasis added). a

The Senate bill, on the other hand, used the phrase

“authorized representative.” Section 116(a)(3) of

S. 4858 provided in part:

For the purpose of .. . making any investigation

under this Act of any building, structure, moni-

toring equipment, or other facility subject to any

air quality standard .. . the Secretary or his

authorized representative shall have a right of

entry to, upon or through such building, struc-

ture, or facility, upon presentation of his creden-

tials.

19a

S. 4358, 91st Cong., 2d Sess, §116(a)(3) (1970),

reprinted in Air Leg. Hist. at 570 (emphasis added).

The respective legislative histories of these two

bills did not discuss the meaning of the phrases used,

but merely repeated without discussion the terminol-

ogy used in the bills. Compare H.R. Rep. No. 91-

1146, 91st Cong., 2d Sess. (1970), reprinted in Air

Leg. Hist. at 901, with S. Rep. No. 91-1196, 91st

Cong., 2d Sess. 58 (1970), reprinted in Air Leg. Hist.

at 459. The conference report stated that the House

bill “authorized entry into and inspection of suspected

polluters’ facilities by DHEW investigative person-

nel,” while “the Senate authorized entry and inspec-

tion by DHEW personnel.” * Conf. Rep. No. 91-1783,

91st Cong., 2d Sess. (1970), reprinted in Air Leg.

Hist. at 197 and [1970] U.S. Code Cong. & Ad. News,

5374, 5379-80. The final version which was enacted

and became section 114(a) followed the language of

the Senate bill. Jd., reprinted in Air Leg. Hist. at

198 and [1970] U.S. Code Cong. & Ad. News at 5374,

5381.

Although the district court attributed great im-

portance to the difference between the House’s “offi-

cers or employees” and the Senate’s “authorized rep-

resentative,” Congress itself did not. As we have

seen, the conference report on the Clean Air Amend-

ments states that the House bill authorized entry and

5 At the time the Clean Air Act was being considered, air

pollution enforcement was the responsibility of the Depart-

ment of Health, Education and Welfare (DHEW). Those

duties were transferred to the Environmental Protection

Agency when it was created. Consequently, “DHEW per-

sonnel” should now be read to mean “EPA personnel.” See

Conf. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970), reprinted

in [1970] U.S. Code Cong. & Ad. News 5874, 5874.

20a

inspection by “DHEW investigative personnel” and

the Senate bill authorized entry and inspection by

“DHEW personnel.” It is therefore apparent that

Congress considered the two phrases to be equivalent.

Although it is ordinarily presumed that a difference

in language reflects a difference in meaning when the

legislative history shows that no difference was in

fact intended, that presumption is rebutted. Moore

v. Harris, 623 F.2d 908 (4th Cir. 1980). As the

Tenth Circuit noted, employees of private contractors

are not the EPA’s personnel, they are the contractor’s

personnel. Stauffer I, 647 F.2d at 1078. Moreover,

the language of rejected alternative legislation is not

entitled to great weight in construing legislation that

was finally passed, since the court has no way of

knowing what motivated the legislature to take such

action. 73 Am. Jur. 2d Statutes §171 (1974); see

Holt v. Middlebrook, 214 F.2d 187 (4th Cir. 1954).

A statute should be read and construed as a whole

and, if possible, given a harmonious, comprehensive

meaning. Weinberger v. Hynson, Wescott & Dun-

ning, Ine., 412 U.S. 609, 631-32 (1973); Federal

Trade Commission vy. Manager, Retail Credit Co.,

Miami Branch Office, 515 F.2d 988 (D.C. Cir. 1975) ;

Ashcroft v. United States Department of Interior,

513 F. Supp. 595 (D. Ariz. 1981). Construing au-

thorized representatives under section 114(a) (2) to

include private contractors would lead to inconsisten-

cies between that section and other parts of the Clean

Air Act. Section 114(d), added by the Clean Air

Amendments of 1977, P.L. 95-95, requires “the Ad-

ministrator (or his representatives)” to give notice

to the applicable state pollution control agency before

making an inspection under section 114(a) (2). The

purpose of this notice is to foster cooperation and

2la

consultation between the EPA and the states regard-

ing enforcement matters. H.R. Conf. Rep. No. 95-

564, 95th Cong., lst Sess. 186 (1977), reprinted in

[1977] U.S. Code Cong. & Ad. News 1502, 1516.

Stauffer argues—correctly, we think—that Congress

could not have intended to entrust this kind of sensi-

tive intergovernmental communication to employees

of private contractors, Rather, the word “representa-

tives” as used in section 114(d) necessarily envisions

EPA employees. In interpreting the meaning of one

provision of an act it is proper that all other provi-

sions in pari materia also be considered. Saxon vy.

Georgia Association of Independent Insurance Agents,

Inc., 399 F.2d 1010 (5th Cir. 1968). Since sections

114(a) and (d) both concern inspections, we con

clude that the term “representative” should be given

the same meaning in both sections.

The trial court focused instead on section 114(c),

42 U.S.C. § 7414(c), which concerns disclosure of

information. That section allows the Administrator

to disclose confidential information obtained during

section 114(a) inspections to “other officers, em-

ployees, or authorized representatives of the United

States” who may need it to carry out their duties.

The court reasoned, logically enough, that in the

context of section 114(c), “authorized representa-

tives” obviously means someone other than officers

or employees because otherwise it would be redun-

dant: 511 F. Supp. at 746. We agree that that is

the only reasonable conclusion with regard to section

114(c), but we disagree that the use of “representa-

tives” in that section controls the use of that word

in section 114(a).

We believe that the interpretation of the word

“representative” in these various sections is simply a

22a

matter of grammar. “Representative” in section 114

(cj) must mean someone other than officers or em-

ployees because they have already been mentioned.

However, officers and employees are not mentioned

in sections 114(a) and (d). To apply the same

meaning to “representative” in those sections would

lead to the absurd result that only the Administrator

and employees of private contractors could make pol-

lution inspections, and EPA employees could not.

Therefore, the only logical conclusion is that the

word “representative” as used in section 114 of the

Clean Air Act means EPA officers or employees,

unless the latter are already enumerated, as they are

in section 114(c). In that event, the plain meaning

of “representative,” i.e., one standing or acting for

another through delegated authority, controls. We

realize that this leads to the undesirable result that

the word “representative” has different meanings in

different portions of the statute, but we suggest that

this is one of the instances in which one is simply

forced to conclude that there is a lack of congruence

between one section of the statute and another. The

same phrase used in different sections of a complex

act does not necessarily carry the same meaning in

each context. Jn re Petition of Chin Thloot Har

Wong, 224 F. Supp. 155 (S.D.N.Y. 1963).

This construction of the phrase “authorized repre-

sentative” in section 114(a) (2) is buttressed by sec-

tion 301(a) of the Act, 42 U.S.C. § 7601(a). That

section provides in part that the Administrator “may

delegate to any officer or employee of the Environ-

mental Protection Agency such of his powers and

duties under this Act, except the making of regula-

tions, as he may deem necessary or expedient.” (Em-

phasis added.) The EPA argues that the word “Ad-

23a

ministrator” in section 114(a)(2) should be con-

strued to mean “officer or employee” on the assump-

tion that the Administrator has already exercised his

delegation authority under section 301(a), and there-

fore “authorized representative” means someone other

than officers or employees. While this interpretation

is ingenious, we think that a more natural reading is

that “authorized representative’ contemplates the

delegation authorized by section 301(a) which, of

course, is limited to officers or employees. Moreover,

the word “Administrator” is defined in section 302

(a), 42 U.S.C. § 7602(a), as “the Administrator of

the Environmental Protection Agency.” The statu-

tory definition of that word is therefore limited to

the named official, and does not include officers or

employees.

Our task is complicated by the fact that the Clean

Air Act has comparable, but separate, provisions for

inspection of motor vehicle engines at the manufac-

turers’ plants, and these provisions are worded dif-

ferently. Section 206(c) of the Act, 42 U.S.C.

§$ 7525(c), permits “officers or employees duly desig-

nated by the Administrator’ to enter the plants of

motor vehicle manufacturers for the purpose of test-

ing motor vehicles or engines. Section 208(a), 42

U.S.C. §$ 7542(a), requires motor vehicle manufac-

turers to maintain records and provides in part:

Every manufacturer ... shall, upon request of

an officer or employee duly designated by the

Administrator, permit such officer or employee

at reasonable times, to have access to and copy

such records.’

*Section 208(b), 42 U.S.C. § 7542(b), is comparable to

section 114(c), 42 U.S.C. § 7414(c), regarding confidentiality

of records, and permits the Administrator to disclose confi-

24a

At the time the 1970 Clean Air Amendments were

enacted, there was an existing section 207(a) of the

Act, former 42 U.S.C. § 1857f-6, comparable to the

present section 208(a), 42 U.S.C. § 7542(a), which

used the phrase “officer or employee.” The 1970

House bill, H.R. 17255, from which the present title

II of the Act was derived, retained the language of

the former statute in using the words “officer or em-

ployee.”

As we have seen, Congress chose the Senate ver-

sion using “authorized representative” in enacting

section 114. The EPA argues, and the district court

agreed, that the choice of “authorized representative”

in section 114(a) as opposed to “officer or employee”

in former section 207(a) shows a deliberate decision

on the part of Congress to give the EPA broader

inspection authority with regard to stationary sources

(section 114) than for motor vehicles (sections 206

and 208). However, it is just as logical—and, we

think, preferable—to hold that these sections should

be construed so that they harmonize with each other,

i.e, so that the inspection and entry power for both

stationary sources and motor vehicles is limited to

EPA officers and employees.

Different portions of the same statute should be

read and interpreted consistently with each other,

avoiding conflicts. Citizens to Save Spencer County v.

United States Environmental Protection Agency,

supra, 600 F.2d at 870; United States v. Toledo,

dential information to “other officers, employees, or author-

ized representatives of the United States” when necessary for

any proceeding under the Act. The purpose of these provi-

sions is to protect government personnel from liability under

the Trade Secrets Act, 18 U.S.C. § 1905, which they would

otherwise incur by disclosing such information.

25a

Peoria & Western Railroad Co., 280 F. Supp. 248

(N.D. Ind. 1968); American Cyanamid Co. v. Ladd,

225 F. Supp. 709 (D.D.C. 1964). In determining

the meaning of a statute, a court must consider the

consequences that would result from construing it

one way or the other Sheftic v. Boles, 295 F. Supp.

1347 (N.D.W.Va. 1969). It would be illogical and

inconsistent to hold that the EPA may use private

contractors to conduct inspections under the station-

ary source portion of the Clean Air Act but not under

the motor vehicle portion of the same Act.

Moreover, the legislative history does not reflect

any conscious choice on the part of Congress to give

the EPA broader authority under section 114 than it

has under section 206. The conference report dis-

cusses each section of the final bill, but does not men-

tion the difference in phraseology between section 114

and sections 206 and 208. Compare the discussion of

section 114 in Conf. Rep. No. 91-1783, 91st Cong., 2d

Sess. (1970), reprinted in [1970] U.S. Code Cong. &

Ad. News 5374, 5379-81 with the discussion of sec-

tion 206, id. at 5382-84." Ordinarily, the use of dif-

*The conference report states: “The provisions of the

House bill and the Senate amendment revising the procedures

under existing law for prototype testing and authorizing pro-

duction line testing of new motor vehicles and engines were

essentially the same... .” Conf. Rep. No. 91-1783, 91st

Cong., 2d Sess. (1970), reprinted in Air Leg. Hist. at 201 and

[1970] U.S. Code Cong. & Ad. News 5374, 5382. Stauffer

argues that this demonstrates, as in the case of section 114,

that Congress equated “authorized representatives” with “offi-

cers or employees.” The EPA contends that the above state-

ment refers only to the provisions for prototype and produc-

tion line testing, not entry. We believe it is unclear whether

this statement was meant to include the entry provisions of

the two bills or only the testing procedures, and we therefore

give it no weight one way or the other.

26a

ferent language creates an inference that Congress

meant different things. However, when the statutory

purposes and legislative history establish that no dif-

ference was in fact intended, the inference is negated.

Moore vy. Harris, supra. Since section 114 was taken

from the Senate bill and sections 206 and 208 from

the House bill, rather than showing a conscious choice

on the part of Congress, it seems more likely that the

final product wa. a result of the two bills being

tacked together without any thought being given to

this small difference in their wording. Allowance

must sometimes be made for human error and inad-

vertence in drafting legislation. Citizens to Save

Spencer County v. United States Environmental Pro-

tection Agency, supra, 600 F.2d at 871-72.

Another factor which strongly militates in favor

of the interpretation which we adopt here is Con-

gress’s amendment of the Federal Water Pollution

Control Act (“Clean Water Act”) in 1972. Section

308(a) of the Clean Water Act, 33 U.S.C. § 1318(a)

(B), is copied virtually word-for-word from section

114(a) (2) of the Clean Air Act.* The Senate report

* Section 308(a)(B) of the Clean Water Act, 33 U.S.C.

§ 1818(a)(B), reads as follows:

(B) the Administrator or his authorized representa-

tive, upon presentation of his credentials—

(i) shall have a right of entry to, upon, or through

any premises in which an effluent source is located or

in which any records required to be maintained un-

der clause (A) of this subsection are located, and

(ji) may at reasonable times have access to and

copy any records, inspect any monitoring equipment

or method required under clause (A), and sample

27a

on S. 2770, which was the basis of the final enact-

ment, says the following about section 308:

It should also be noted that the authority to

enter, as under the Clean Air Act, is reserved to

the Administrator and his authorized representa-

tives which such representatives must be full

time employees of the Environmental Protection

Agency, The authority to enter is not extended

to contractors with the EPA in pursuit of re-

search and development.

S. Rep. No. 92-414, 92d Cong., 2d Sess. (1971),

reprinted in [1972] U.S. Code Cong. & Ad. News

3668, 3729 (emphasis added).

The district court, 511 F.Supp. at 747, and the

Ninth Circuit, Bunker Hill, 658 F.2d at 1284, dis-

missed this statement because it was made after en-

actment of the Clean Air Act. We, on the other hand,

believe it is critical.

We realize that ordinarily, ‘“[a] mere statement in

a conference report... as to what the Committee

believes an earlier statute meant” is entitled to little

weight. Consumer Product Safety Commission vy.

GTE Sylvania, Inc., 447 U.S, 102, 118 n.13 (1980).

However, this is an exceptional case. The understand-

ing of a later Congress, while not-binding, is entitled

to deference. Moore v. Harris, supra. Where a prob-

lem of interpretation was apparently not foreseen by

Congress, it is appropriate to consult and be guided

by those areas covering the same subject where the

any effluents which the owner or operator of such

source is required to sample under such clause.

As stated in the Senate Report about Section 308, the au-

thority to enter is not extended to contractors with the EPA

in pursuit of research and development.

28a

expression of legislative intent is clear. DeAvilia v.

Civiletti, 643 F.2d 471 (7th Cir. 1981). The Clean

Air and Clean Water Acts are in pari materia with

one another. General Motors Acceptance Corp. v.

Whisnant, 387 F.2d 774 (5th Cir. 1968) ; Hallenbeck

vy. Penn Mutual Life Insurance Co., 323 F.2d 566

(4th Cir. 1963); see Atlantic Refining Co. v. Federal

Trade Commission, 344 F.2d 599 (6th Cir. 1965).

This is especially true when the Clean Water Act’s

section 308(a) was explicitly modeled after section

114(a) (2) of the Clean Air Act. Oscar Mayer & Co.

vy. Evans, 441 U.S. 750, 755-56 (1979) ; United States

v, Freeling, 31 F.R.D. 540 (S.D.N.Y. 1962)

Moreover, the Senate report on the Clean Water

Amendments was authored a scant ten months after

passage of the Clean Air Act, by the same committee

(Public Works) which considered the Clean Air Act.

Thus, in the circumstances of this case, it is proper

to give the quoted statement great weight, even

though a similar statement was years later might be

of little value.’

It should also be noted that section 308(b) of the

Clean Water Act, 33 U.S.C. §1818(b), tracks the

language of section 114(c) of the Clean Air Act in

permitting the Administrator to reveal confidential

* The district court pointed to the last sentence in the quoted

statement regarding contractors and found that, since sec-

tion 103(b) (4) of the Clean Air Act, 42 U.S.C. § 7403(b) (4),

permits the use of contractors for research and development,

there was a “lack of congruence” between the Clean Air and

Clean Water Acts, making the relevance of the Clean Water

Act legislative history questionable. 511 F. Supp. at 747.

This overlooks the fact that section 104(b) (4) of the Clean

Water Act, 33 U.S.C. § 1254(b) (4), also permits the EPA to

contract with private organizations for research and devel-

opment.

29a

information to “other officers, employees, or author-

ized representatives of the United States.” *’ Since it

is manifest that the word “representative” was given

two different meanings in section 308 of the Clean

Water Act, this reinforces our interpretation, supra,

giving that word two meanings in section 114 of the

Clean Air Act.

As we have seen, section 114 of the Clean Air Act

and section 308 of the Clean Water Act are in pari

materia, and should be interpreted the same way.

We have also seen that courts must consider the con-

sequences which would result from a particular con-

struction. Sheftic v. Boles, supra, As the Tenth Cir-

cuit recognized in Stauffer I, 647 F.2d at 1079, if the

EPA’s interpretation of section 114, permitting pri-

vate contractors to be “authorized representatives” is

followed, it would lead to the anomalous result that

the EPA could use private contractors to make in-

spections under the Clean Air Act, but not to make

inspections under the Clean Water Act, even though

the wording of the statutes is identical. Such a result

makes no sense, and we decline to introduce such a

blatant contradiction into the law.

It is instructive to compare the statutes which we

have been discussing with the Solid Waste Disposal

Act Amendments of 1980, P.L. 96-482. Section 3007

of the Solid Waste Disposal Act, 42 U.S.C. § 6927,

formerly permitted entry and insfx ‘tion of facilities

which generate or handle hazardous wastes by “any

officer or employee of the Environmental Protection

Agency, duly designated by the Administrator, or

. any duly designated officer [or] employee of a

State having an authorized hazardous waste pro-

gram... .” The 1980 amendments inserted “repre-

10 See footnote 6, supra.

80a

sentative” after “employee,” so that inspection au-

thority is now given to “any officer, employee or

representative” of EPA or the states. The legislative

history of the 1980 Solid Waste Disposal Act Amend-

ments expressly shows that the word “representative”

was added for the specific purpose of covering private

contractors: “the amendment clarifies that the Ad-

ministrator may authorize EPA contractors to obtain

samples, perform inspections, and examine records

at facilities which handle hazardous wastes.” S. Rep.

No. 96-172, 96th Cong., 2d Sess. 3 (1979), reprinted

in [1980] U.S. Code Cong. & Ad. News 5019, 5021.

The Senate bill includes amendments to section

3007(a) to assure that the inspection authority

for purposes of developing regulations or en-

forcement provisions extends to . . . employees

and representatives of the Environmental Pro-

tection Agency.

H.R. Conf. Rep. No. 96-1444, 96th Cong., 2d Sess, 35

(1980), reprinted in id., 5028, 5034.

The Ninth Circuit compared “authorized repre-

sentative” in section 114 of the Clean Air Act with

“officers or employees” in section 206 of the Act and

concluded that, “where Congress meant to limit in-

spections to officers and employees it did so.” Bunker

Hill, 658 F.2d at 1283. The district court below

reached the same conclusion. 511 F. Supp. at 746.

Without faulting the logic of that position, we think

the shoe can just as logically go on the other foot:

section 6927 shows that, when Congress meant to

expand inspection authority beyond EPA officers and

employees it knew how to do so and took specific steps

to make that clear.

3la

We have criticized the district court’s and Ninth

Cireuit’s position, construing “representative” to in-

clude contractors, for leading to an inconsistency be-

tween the Clean Air and Clean Water Acts. Our

position restricting “representative” to officers and

employees of the EPA leads to an inconsistency be-

tween the Clean Air and Clean Water Acts on one

hand the Solid Waste Disposal Act on the other, i.e.,

under our view the EPA will be able to use private

contractors to conduct inspections under the Solid

Waste Disposal Act but not under the Clean Air and

Clean Water Acts. This inconsistency is also regret-

table, but it at least has the virtue of being founded

upon express differences in language and explicit

statements of Congressional intent, instead of treat-

ing identically-worded statutes differently.

EPA argues that Congress has ratified its use of

contractors by its failure to amend section 114(a) in

1977 when it enacted that year’s Clean Air Amend-

ments (which added section 114(d)), and by approv-

ing EPA budget requests which included amounts

budgeted for use of contractors in Clean Air enforce-

ment activities. Stauffer counters that there has been

no Congressional ratification, only inaction or silence.

We agree with the district court that the evidence

either way on ratification is inconclusive.

Section 114(d) was added by the Clean Air Amend-

ments of 1977, P. L. 95-95. EPA argues that, while

Congress was thus amending section 114, it could

have amended section 114(a)(2) if it was dissatis-

fied with the “authorized representative” language,

but did not do so. We agree with the district court’s

conclusion, 511 F. Supp. at 749, that it does not ap-

pear that Congress considered the question of who is

an authorized representative at that time. Neither

82a

the legislative history of the House bill, which was

enacted, nor the conference report discusses the ques-

tion of authorized representative. See H.R. Rep. No.

95-294, 95th Cong., 1st Sess. 27 (1977), reprinted in

[1977] U.S. Code Cong. & Ad. News 1077, 1105 and

H.R. Conf. Rep. No. 95-564, 95th Cong., 1st Sess. 135

(1977), reprinted in id., 1502, 1516. “Legislative

silence is a poor beacon to follow in discerning the

proper statutory route.” Zuber vy. Allen, 396 U.S.

168, 185 (1969). However, as we have discussed

above, section 114(d) uses the word “representative”

in a sense which can only be synonymous with “officer

or employee.”

The EPA also argues that Congress has ratified its

use of contractors as “authorized representatives” by

its approval of agency appropriations requests which

included amounts for use of contractors in Clean Air

enforcement activities. For instance, EPA quotes a

1977 budget request to “obtain contracior assistance

to solve non-attainment problems posed by Class A

and Class B emitters.”

The Supreme Court has noted that Congressional

ratifications may be effected through appropriations

acts. However, “the appropriation must plainly show

a purpose to bestow the precise authority which is

claimed.” Ex Parte Endo, 323 U.S. 288, 303 n.24

(1944). In our opinion, it is doubtful that an ob

scure budget item counched in the kind of murky lan-

guage quoted above is sufficient to plainly show a Con-

gressional intent to ratify the EPA’s interpretation

of “authorized representative,” especially in the fact

of an explicit expression of intent to the contrary in

the legislative history of the Clean Water Act, dis-

cussed supra. Also, the appropriation could be con-

strued to provide for the payment of contractors only

28a

where the statute expressly authorized their use such

as for research and development and other specific

purposes.

Ly differing with the district court, we de not

denigrate the court’s able opinion, for cogent argu-

ments can be raised on both sides. The EPA filed

affidavits in the court below stating that forbidding

it to use contractors in Clean Air oversight inspec-

tions would hamper or even cripple the program, and

it might also be argued that, in this era of govern-

ment cutbacks, it is preferable to permit the EPA to

use contractors rather than hire more full time em-

ployees. On the other hand, the execution of search

warrants is a traditionally governmental function,

and Stauffer and other owners of commercial prop-

erty have legitimate concerns regarding the safety of

trade secrets when employees of contractors, who may

have other clients and conflicting interests, are per-

mitted to conduct inspections under ex parte search

warrants issued where the property owner is afforded

no opportunity to be heard.

For the reasons outlined above, we hold that the

words “authorized representative” in section 114(a)

(2) of the Clean Air Act, 42 U.S.C. § 7414(a) (2),

mean officers or employees of the EPA, and cannot

include employees of private contractors, and that the

district court erred in its holding to the contrary and

in failing to quash the search warrant which improp-

erly permitted access to Stauffer’s facilities by em-

ployees of PEDCo acting as representatives of the

EPA.

The judgment of the district court is reversed and

the cause is remanded with instructions to order judg-

ment in favor of Stauffer.

84a

JONES, Circuit Judge, concurring. Although I con-

eur with Judge Weick’s well-reasoned opinion, I write

separately to articulate my views concerning the ap-

plication of collateral estoppel to the present case.’ In

my opinion, the application of the doctrine precludes

this Court from addressing the merits of the issue

presented. Accordingly, I limit my concurrence to

section II of Judge Weick’s opinion.

Application of the doctrine of collateral estoppel

involves a consideration of three factors. Under this

doctrine, a judgment rendered in a prior law suit be-

tween the parties precludes the relitigation of those

issues previously raised, considered and determined

when a subsequent suit, based upon a different claim

or demand, is brought. Commissioner v. Sunnen, 338

U.S. 591, 597-98 (1948). Thus, a court must initially

determine whether the issues presented in the second

action are identical to those resolved in the previous

action. Montana v. United States, 440 U.S. 147, 155

(1979). In the instant case, it is undisputed that the

issue resolved by the litigation in Stauffer J is identi-

cal to the question raised in this appeal.

However, the finding of an identity of issues in the

first and second action does not end the inquiry. This

Court has steadfastly refused to apply the doctrine of

collateral estoppel mechanically or rigidly. Rather,

this rule is “qualified or rejected when [its] applica-

tion would contravene an overriding public policy or

result in manifest injustice.” Tipler v. E. I. duPont

deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971).

See also Shimman v. Frank, 625 F.2d 80, 89 (6th Cir.

1 As noted by Judge Siler in his concurring opinion, res

judicata is inapposite to the present case since this litigation

involves a different set of operative facts and hence a differ-

ent cause of action than Stauffer I.

85a

1980); United States vy. LaFatch, 565 F.2d 81, 83

(6th Cir. 1977), cert. denied sub nom., LaFatch v.

MM Corp., 435 U.S. 971 (1978); Bronson v. Board

of Education, 525 F.2d 344, 349 (6th Cir, 1975),

cert, denied, 425 U.S. 984 (1976). The Supreme

Court, in Montana v. United States, supra, identified

the following two questions, both of which must be

resolved favorably to the party asserting collateral

estoppel before the doctrine can be applied: (1)

‘whether controlling facts or legal principles have

changed significantly” since the judgment in the prior

suit; and (2) ‘whether other special circumstances

warrant an exception to the normal rules of preclu-

sion.” 440 U.S. at 155.

The first inquiry seeks to prevent the application

of collateral estoppel in situations where the legal

principles underlying the initial judgment have been

altered, thus weakening its conclusive nature. See

Commissioner v. Sunnen, 333 U.S, at 599-602, An

examination of the record in the present case reveals

that there has been no such change in the legal prin-

ciples underlying the decision in Stauffer J. There-

fore, the only remaining issue is whether an exception

to the application of the doctrine should be made on

equitable grounds,

In Montana v. United States, the Supreme Court

identified one set of circumstances which counsels

against the application of the doctrine. ‘“Redetermi-

nation of issues is warranted if there is reason to

doubt the quality, extensiveness or fairness of the

procedures in prior litigation.” 440 U.S. at 164 n.11.

Moreover, this Court has identified a number of other

circumstances which have been found to justify an

exception to the application of the rule. See, e.g.,

Hawkins vy. Holiday Inns, Inc.. —— F.2d ——, slip

86a

opinion, No, 80-1233 (6th Cir. March 18, 1981) (a

broader range of proofs is required in the second ae-

tion than in the prior action); Shimman vy. Frank,

supra, (lesser burden of proof required in the subse-

quent action than imposed in the first) ; United States

v. LaFatch, supra (overriding public policy against

bribery of publie officials); Tipler v. EB. 1. duPont

deNemours & Co., supra (differences in the purposes

and requirements of the statutory provisions under

which the prior and subsequent actions have been

prosecuted). See generally Westwood Chemical Co, v.

Kulick, 656 F.2d 1224, 1228-32 (6th Cir. 1981). EPA

has not asserted, nor does the record reflect, that any

of the circumstances identified by the preceding cases

are present.

However, I note that, in his concurring opinion,

Judge Siler identifies two apparent sources of injus-

tice which would spring from the invocation of the

rule. Initially, he states that “injustice would result

if EPA were precluded from entering in Stauffer’s

plant in Tennessee, but were using private contrac-

tors in entering competitors’ plant in the same area,”

I am not persuaded. In my opinion, the injustice, if

any, is suffered by Stauffer whose plants and trade

secrets in one area will be protected, while in an-

other, private individuals will be able to enter and

inspect its facilities. To prevent such an anamoly,

collateral estoppel should be applied. See Continental

Can Co. vy. Marshall, 603 F.2d 590 (7th Cir, 1979).*

* Continential Can involved a somewhat analogous situa-

tion. There, a can manufacturer sued to enjoin the Depart-

ment of Labor from prosecuting pending citations issued as a

result of alleged violations of OSHA noise regulations, Previ-

ously, a proceeding involving several of the manufacturer's

plants in California resulted in a finding that the company had

37a

Further, given the concurrence of two panel members

as to the issue of employing private contractors in

these inspections, the injustice identified will remain

since the EPA will technically retain the power to

use private contractors elsewhere in the circuit. But

even EPA's power to use these individuals in its in-

spections is illusory since the stare decisis impact

of the Court’s holding today, if it becomes final, may

be expected to eliminate the practice in this juris-

diction. See Allegheny General Hospital v. NLRB,

608 F.2d 965, 970 (8d Cir. 1979). In short, applica-

tion of collateral estoppel is only minimally related

to the harm identified.

Judge Siler also remarks that application of col-

lateral estoppel is improper where several cases, in-

volving the same legal issue, are being litigated in

different areas and result in inconsistent decisions.

However, I adhere to the position articulated in West-

tern Oil and Gas y. E.P.A., 683 F.2d 803, 809 (9th

Cir. 1980), where the court concluded, “ we think the

fact of inconsistent decisions is a relevant, but not

always dispositive, factor to be considered in the ex-

ercise of discretion [in refusing to apply the doe-

trine].”" In the present case, this factor weighs in

favor of applying the doctrine. The Ninth Cireuit in

articulating this rule relied on dictum appearing in

several Supreme Court cases which apparently ap-

prove the practice of agency relitigation. See E.1.

fulfilled its obligation by employing the most economically

feasible engineering controls. After noting that the manu-

facturer’s other eighty plants, located nationwide, were struc-

turally similar and had the identical noise “problem” as that

involved in the prior proceeding, the court held that fairness

required an application of collateral estoppel in order to dis-

miss the pending citations concerning these other plants.

38a

duPont deNemours & Co. y. Train, 480 U.S, 112, 135

n.26 (1977); Union Electric Co. v. E.P.A., 427 U.S.

246, 254-55 (1976); Train v. Natural Resources De-

fense Council, Inc., 421 U.S. 60, 72-75 (1975). How-

ever, an examination of these cases reveals that they

involved circumstances not present here. In each, the

agency's relitigation of an issue in several courts of

appeal was prosecuted by and against different par-

ties as opposed to the same party as in the case at

bar. Although not dispositive, this factor weighs on

the side of the party urging the application of col-

lateral estoppel because its application will serve the

following purpose recently enunciated by the Supreme

Court:

To preclude parties from contesting matters that

they have had a full and fair opportunity to

ligitage protects their adversaries from the ex-

pense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance

on judicial action by minimizing the possibility

of inconsistent decisions.

Montana vy. United States, 440 U.S. at 153-54 (foot-

note omitted). While I do not favor precluding a

federal agency’s ability to test its policy decisions in

more than a single circuit, in circumstances where

the same defendant is sued in seriatim without the

agency attempting to exhaust its appeals on the pre-

vious judgment, the equities favor application of col-

lateral estoppel and not its abdication. Thus, in my

opinion, application of the rule is proper.

39a

SILER, District Judge, concurring. I concur with

the majority opinion on the merits but disagree with

it on procedural grounds, that is, I believe the doc-

trines of collateral estoppel and res judicata should

not be applied here.

Where the history of the cases shows that in

Stauffer I, as designated in the majority opinion,

the Wyoming district court opinion in favor of the

EPA was rendered on June 23, 1980, there was legal

authority for the action of the EPA at the time it

obtained a warrant and went to inspect the Tennessee

plant on August 7, 1980, Then, the district court in

this case held its hearing on August 29, 1980, while

the district court opinion from Wyoming was the only

available court decision on the subject.

Next, the district court in Tennessee below ren-

dered its decision on April 17, 1981, not precluded at

all from deciding the case by res judicata or collateral

estoppel. Then, on May 8, 1981, the opinion from

Wyoming was affirmed in Stauffer Chemical Co. v.

E.P.A., 647 F.2d 1075 (10th Cir. 1981). Apparently

no further appeal was attempted in that case, al-

though a rehearing was denied on June 16, 1981.

Finally, before the case at bar was argued, the deci-

sion in Bunker Hill Co. Lead & Zine Smelter v.

United States E.P.A., 658 F.2d 1280 (9th Cir. 1981),

was decided on October 13, 1981.

Res judicata is not applicable here, as a cause of

action different fri .n that in Stauffer I was involved,

but collateral estoppel would be applicable. See Com-

missioner v. Sunnen, 333 U.S. 591 (1948); Hart v.

Federal Reserve Bank of Atlanta, 270 F. Supp. 296

(M.D. Tenn. 1966) (Miller, J.), aff'd, 379 F.2d 961

(6th Cir. 1967), cert. denied, 390 U.S. 924 (1968);

40a

see generally Cream Top Creamery vy. Dean Milk Co.,

383 F.2d 358 (6th Cir. 1967).

However, as stated in Western Oil & Gas y. United

States E.P.A., 633 F.2d 803, 808 (9th Cir. 1980),

federal appellate courts “traditionally have permitted

federal agencies to relitigate substantially identical

legal issues raised by different transactions or events,

after adverse decisions elsewhere.” That court went

on to say at 809:

Collateral estoppel is not to be applied mechan-

ically. In proper circumstances, it can prevent

the waste of judicial resources and shield liti-

gants from duplicative and often vexatious law

suits. As the Supreme Court has recently recog-

nized, however, countervailing policies may jus-

tify a refusal to apply principles of estoppel.

This doctrine was followed in Castorr v. Brundage,

—— F.2d —— (No, 81-1638, 6th Cir. March 23,

1982), where the Court stated:

We do not hold that the application of the

principles of res judicata and collateral estoppel

is mandatory in every case. They are an expres-

sion of the policy of federal courts preferring

finality, i.e., that litigation at some time must

become final. In the face of more important fed-

eral policies, however, the preference for finality

might be outweighed by more compelling consid-

erations.

Id. at —— (slip opinion at 9). Accord, Restatement

of Judgment $70 (1942) (collateral estoppel not to

be invoked if injustice would result).

Here, injustice would result if EPA were precluded

from entering with private contractors at Stauffer’s

4la

plant in Tennessee, but were using private contrac-

tors in entering competitor’s plants in the same area.

Likewise, where several different cases involving the

same issues are being litigated simultaneously in sep-

arate circuits, collateral estoppel should not be in-

voked. Thus, collateral estoppel, although legally ap-

plicable, is not appropriate here.

Nevertheless, I concur with the majority opinion

on the merits of the issue. Where the federal govern-

ment has embarked upon a policy so radically diver-

gent from its standard policy, that is, having only

government officers or employees executing search

warrants and inspecting plants, it seems that author-

ity for such conduct should be clear from the Act

itself or from legislative history. As the authority to

allow the private contractors to be used under the

circumstances of this case is not at all clear, EPA

should not be allowed to use these private contractors

for such inspections until Congress amends its legis-

lation. Cf. Bread Political Action Committee v. F ed-

eral Election Commission, USS. , 350

U.S.L.W. 4921 (1982).

In concurring with the majority opinion to reverse

the district court I am not suggesting that the lower

court “missed the signs on a well marked trial,” Getty

v. Reed, 547 F.2d 971, 975 (6th Cir. 1977), for when

it rendered its decision below, it had no benefit of

an appellate court decision directly on point.

42a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-5311

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

STAUFFER CHEMI‘ AL COMPANY,

DEFENDANT-APPELLANT

[Filed Oct. 15, 1982]

Before WEICK,* Senior Circuit Judge, JONES, Cir-

cuit Judge and SILER,** U.S. District Judge.

ORDER

No active judge of this court having requested that

a vote be taken on the suggestion of the appellee that

its petition for rehearing be heard en banc, said peti-

tion for rehearing was therefore referred to the panel

for consideration and determination.

Upon consideration of the petition for rehearing,

we are of the view that the issues in this appeal were

adequately dealt with in our slip opinion and that

* Judge Weick became a Senior Circuit Judge at the close

of business on December 31, 1981.

** Honorable Eugene E. Siler, Jr., Judge, United States

District Court for the Eastern and Western Districts of

Kentucky, sitting by designation.

43a

the petition lacks merit. The appellee has not demon-

strated that EPA in conducting a pollution inspection

and search of private commercial property of Stauffer

Chemical Company needs the services not only of its

own employees as well as the employees of the State

of Tennessee, but in addition thereto requires the

services of a private contractor who is a competitor

of Stauffer with conflicting interests who may have

an axe to grind and may be interested in obtaining

trade secrets of Stauffer.

The petition for rehearing is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

JOHN P. HEHMAN

Clerk

44a

APPENDIX C

UNITED STATES DISTRICT COURT

M.D. TENNESSEE

COLUMBIA DIVISION

No. 80-1029

UNITED STATES OF AMERICA

STAUFFER CHEMICAL COMPANY

Decided and Filed April 17, 1981

MEMORANDUM

WISEMAN, District Judge.

This case is before the Court on motion of plaintiff,

United States for the Environmental Protection

Agency, for contempt and motion of defendant, Stauf-

fer Chemical Company, to quash an administrative

search warrant. The central issue in the case is

whether the words “authorized representative” in sec-

tion 114(a) (2) of the Clean Air Act include private,

independent contractors or are limited to employees

of the Environmental Protection Agency. The Court

holds that private contractors may be considered au-

thorized representatives under the Act.

Facts

On August 7, 1980, the United States for the En-

vironmental Protection Agency [hereinafter EPA]

obtained and attempted to execute an administrative

search warrant to inspect an elemental phosphorus

producing plant of Stauffer Chemical Company [here-

45a

inafter Stauffer] in Mt. Pleasant, Tennessee. EPA

sought the warrant’ pursuant to its authority under

section 114 of the Clean Air Act, 42 U.S.C. § 7414.

EPA had contracted with PEDCo Environmental,

Inc., to conduct overview inspections. EPA, PEDCo,

and PEDCo employees have entered into agreements

that are intended to hold the employees to strict con-

fidentiality. See discussion of confidentiality meas-

ures infra. When representatives of EPA, the Ten-

nessee Department of Public Health, and PEDCo ar-

rived at the Stauffer plant, the PEDCo employee was

denied entry, unless he executed an elaborate nondis-

clusure agreement with Stauffer. Stauffer sought the

nondisclosure agreement to protect it from disclosure

of trade secrets or other proprietary information.

The PEDCo employee refused to execute the nondis-

closure agreement because it contained provisions in-

consistent with EPA’s enforcement policies. One of

the most obnoxious provisions would have required

the EPA contractor to give the plant two weeks’ no-

tice of the date of an inspection.

On August 8, 1980, EPA brought this civil con-

tempt proceeding against Stauffer because of the re-

fusal to allow the PEDCo employee into the plant.

That same day Stauffer moved to quash the adminis-

trative search warrant issued by the Magistrate.

1 The warrant provided, in part, that:

EPA, through its duly authorized full-time employees,

and accompanying, authorized representatives under con-

tract with EPA, the United States Marshal or any other

federal officer, are hereby entitled to and shall be au-

thorized and permitted to have entry upon the [Stauffer

Chemical plant] premises during normal] operating hours

for the purpose of conducting an inspection, sampling,

and monitoring pursuant to Section 114 of the Clean

Air Act.

46a

Thesc matters were consolidated for hearing on

August 29, 1980. Stauffer argues that section 114 of

the Clean Air Act does not authorize private contrac-

tors to carry out EPA plant inspections, and that

EPA is not authorized to use an ex parte proceeding

to obtain a warrant to inspect plant premises.

Discussion

At the outset the Court notes that counsel for both

sides have submitted excellent briefs in support of

their respective theories. Although well-researched

and presented memoranda always aid the Court in

its decision-making process, little could make resolu-

tion of the section 114 question easier. District courts

in other vircuits have split on this issue.*? Writing on

a clean slate in this Circuit, this Court holds that

“authorized representative” may include private con-

tractors.

Authorized Representative

Section 114(a)(2) of the Clean Air Act provides

that:

[T]he Administrator or his authorized repre-

sentative, 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 main-

2 Bunker Hill Co. v. EPA, No. 80-2087 (D.Idaho Oct. 1,

1980) (authorized representative includes private contrac-

tors); In re Alcoa, No. M-30-18 (M.D.N.C. Aug. 5, 1980)

(decision of Magistrate that authorized representative in-

cludes private contractors affirmed) ; Jn re Stauffer Chemical

Co., 14 Envir. Rep. (BNA) 1787 (D. Wyo. June 24, 1980)

(authorized representative does not include private con-

tractors).

47a

tained under paragraph (1) of this section

are located, and

(B) may at reasonable times have access to

and copy any records, inspect any monitor-

ing equipment or method required under

paragraph (1), and sample any emissions

which such person is required to sample

under paragraph (1).

42 U.S.C. § 7414(a) (2) (emphasis added).

Stauffer argues that only officers and employees of

EPA were contemplated as authorized representa-

tives. For support, Stauffer relies on an in pari

materia construction of section 114 and sections 206

and 208, and the legislative history of the 1970 Clean

Air Act Amendments and the 1972 Clean Water Act

Amendments. More generally, Stauffer urges that

Congress did not intend for private parties to partici-

pate in plant searches because law enforcement

searches are traditionally carried out by public offi-

cials.

Under sections 206(c) and 208(a), 42 U.S.C.

$$ 7525(c), 7542(a), only officers or employees duly

designated by the Administrator may participate in

motor vehicle plant inspections. Stauffer says that

this limitation should be read into section 114 be-

cause it clearly evinces Congress’ intent regarding

who can participate in plant inspections. EPA also

regards the difference between sections 114 and 206

and 208 as significant, but suggests that the differ-

ence was intended to reflect a measured congressional

choice. The Court finds EPA’s construction more per-

suasive.

Section 114 contains two references to “authorized

representatives.” In addition to subsection (a) (2),

48a

subsection (c) allows confidential information ob-

tained under subsection (a) to be disclosed to ‘other

officers, employees, or authorized representatives of

the United States concerned with carrying out this

Act.” 42 U.S.C. § 7414(c) (emphasis added). That

Congress intended authorized representatives to be

distinguishable from officers and employees is obvious

from the disjunctive listing in this section. If au-

thorized representatives were limited to officers or

employees, the inclusion of authorized representatives

in this subsection would have been mere surplusage.

The Court will not conclude that Congress intended

to be redundant. Moreover, section 114 concerns in-

spections generally and specifically exempts 42 U.S.C.

§ 7521 et seq., the motor vehicle plant inspection pro-

visions, from its scope.

Stauffer also argues that clear evidence of congres-

sional intent comes from the legislative history of the

Clean Water Act Amendments of 1972, which were

modeled after the Clean Air Act Amendments of 1970.

In discussing the inspection and entry provisions of

the Clean Water Act, section 308, 33 U.S.C. $1818,

two years after the Clean Air Act Amendments had

been passed, the Senate Public Works Committee Re-

port limited authorized representatives to full-time

EPA employees.

It should be noted that the authority to enter,

as under the Clean Air Act, is reserved to the

Administrator and his authorized representatives

which such representatives must be full time em-

ployees of the [EPA]. The authority to enter

is not extended to contractors with the EPA in

pursuit of research and development.

Sen. Rep. No. 92-414, 92d Cong., 2d Sess. 63 (1971),

reprinted in [1972] U.S. Code Cong. & Ad. News

4¥a

3668, 3729 (emphasis added), Clean Water Act sec-

tion 308(a)(B) is virtually identical in section 114 of

the Clean Air Act.’

This portion of the legislative history of section

308 of the Clean Water Act does give the Court

pause, The two statutes concern environmental mat-

ters; the Clean Water Act was even modeled after the

Clean Air Act. The temporal difference in when the

words authorized representative were used is not that

great, a mere two years. Yet it is difficult to at-

tribute a construction to a statute by virtue of state-

ments made after the statute was enacted. The courts

must be concerned with what the legislature that

enacted the statute in question meant when the stat-

ute was enacted, not what was meant when othor

legislation was considered years later.

The last sentence of the significant paragraph of

the Clean Water Act legislative history states that

contractors will not have authority to enter “with the

EPA in pursuit of research and development.” Sec-

tion 103 of the Clean Air Act, however, Clearly pro-

vides for the use of “private agencies, institutions,

and organizations, and individuals,” 42 U.S.C. § 7403

*(T)he Administrator or his authorized representative,

upon presentation of his credentials—

(i) shall have a right of entry to, upon, or through any

premises in which an effluent is located or in which

any records required te be maintained under clause (A)

of this subsection are located, and

(ji) may at reasonable times have access to and copy any

records, inspect any monitoring equipment or method re-

quired under clause (A), and sample any effluents which

the owner or operator of such source is required to sam-

ple under such clause.

33 U.S.C. § 1818(a) (B).

50a

(b) (4), to “conduct investigations and research and

make surveys concerning any specific problem of air

pollution,” id. § 7403(a) (3). This lack of congruence

between the legislative history of the Clean Water Act

and the provisions of the Clean Air Act makes the

relevance of the legislative history of the Clean Water

Act questionable, Postenactment statements should be

used only sparingly as determinative of legislative

intent because of the basic unreliability of statements

made with nothing at stake regarding the earlier

legislation. A better view of the legislative intent as

expressed in legislative history is available when the

relevant sections of the Clean Air Act Amendments

of 1970 are traced through the maze of legislative

committees to enactment.

On June 3, 1970, the Committee on Interstate and

Foreign Commerce of the House of Representatives

reported out its version of the amendments to the

Clean Air Act, which limited entries to “officers or

employees duly designated by the Secretary.”* H.R.

17255, 91st Cong., 2d Sess., reprinted in Legislative

History of the Clean Air Amendments of 1970, at

918, 928 (1974) [hereinafter cited as Legislative

History of 1970]. The Senate version of the Clean

Air Amendments was reported out of the Committee

on Public Works on September 17, 1970, and it pro-

vided for entry by “the Secretary or his authorized

representative.” S. 4358, 91st Cong., 2d Sess., re-

printed in Legislative History of 1970 at 570. The

Conference Committee obviously resolved the conflict

in favor of the Senate version because the enacted

statute uses the same terminology. The plain mean-

ing of authorized representative is broader than duly

* At that time the Secretary of Health, Education, and Wel-

fare was in charge of air pollution matters.

5la

designated Officers or employees. That the Conference

Committee and the Congress as a whole chose to enact

the broader terms into law is significant.

The final and Senate versions differed from the

House version in another significant respect. The re-

quirement of written notice of inspections, contained

in the House draft, was oiflitted in™the Senate and

final versions. See 42 U.S.C, § 7414(a) (2); Legisla-

tive History of 1970 at 151, 570, 918, 923. The

philosophy of the Senate and House versions appears

to have differed. The Senate version granted the

agency more power and authority to enforce the pro-

visions: the requirement of notice of inspections was

omitted from the Senate version. Because subsection

in the disjunctive with officers and employees, and

because the Conference Committee obviously chose the

Senate version over the House version the Court con-

cludes that authorized representative means more

than simply officers or employees of the agency.

The power to participate in administrative searches,

Stauffer argues, should not be extended to private

contractors. Because historically search powers have

been entrusted only to public officials, Stauffer con-

tends that the Court should not read Congress’ intent

as extending the power to private contractags without

more specific statutory language. .

The relevance of the common law and other histori-

cal antecedents to plant inspection searches is mini-

mal because of the different interests at stake. The

‘

52a

matic change toward governmental regulation, super-

vision, and enforcement. Air pollution and water pol-

lution control guidelines cover matters so complex,

such as ambient air quality standards and effluent

limitations, that simple exercise by the state of its

police power was determined to be ineffective. Fed-

eral enforcement was recognized as a prerequisite to

meaningful pollution control. Congress expressly rec-

ognized that private agencies would be helpful in the

investigation and research aspect of air pollution con-

trol. 42 U.S.C. § 7403(a) (3), (b) (4). Congress con-

sidered private contractors proper recipients of con-

fidential information when duly authorized by the

Administrator, id. § 7414(c). Thus, it is not unrea-

sonable to conclude that Congress entrusted private

parties with the power to enter and conduct onsite

monitoring inspections.

Stauffer fears exposure of its proprietary processes

by the private contractor who was hired by EPA.

Although Stauffer concedes that it cannot prohibit

state or federal government employees from entering

areas that contain proprietary processes, it argues

that even though they are authorized by the Admin-

istrator, private contractors stand in different shoes

than government employees. .Because private contrac-

tors are not government employees, they are not sub-

ject to criminal sanctions of the Trade Secrets Act,

18 U.S.C. § 1905, which prohibit unauthorized dis-

closure of trade secrets. The private contractor hired

by EPA in this case causes Stauffer some concern

because the company is part of the PEDCo group,

Clearly Congress envisioned the receipt of confiden-

tial proprietary information by persons other than

53a

officers or employees of EPA. See 42 U.S.C. § 7414

(c). This Court has held that private parties author-

ized by the Administrator may enter under section

114. Thus, the issue becomes whether they should be

prohibited from entering because of inadequate pro-

tection against disclosure.

This Court holds that EPA’s contract with the

PEDCo employees in this case® and EPA regulations,

40 C.F.R. § 2.301(h), are sufficient protection against

disclosure. The contract imposes the duty of con-

fidentiality and the penalty of dismissal and damages

for breach of that duty. Under the regulations, the

private contractor agrees that an “affected business

[with] an interest in the information” is entitled to

5 The substantive portions of the confidentiality agreements

between PEDCo employees and PEDCo provide as follows:

PEI [PEDCo] possesses certain confidential information,

so identified, relating to industrial processes and facili-

ties (referred to below as “confidential information’’)

which it has obtained in the past from its clients. PEI

continues to obtain confidential information both directly

from its clients and from third parties as a result of

work done for its clients.

Employee may obtain confidential information from time

to time as a result of visual inspection of records and

facilities of PEI’s clients or from third parties as a re-».

stilt of work. done for PEI’s clients. és

NOW THEREFORE, in consideration of monies paid

to employee by way of salary and other employee bene-

fits, Employee agrees that, except as directed in the

course of his employment, he will not disclose any confi-

dential information to anyone, directly or indirectly.

ee further agrees to observe the general security

that PEI adopts and understands that any

willful violation of the company’s general security pro-

cedures wil] result in immediate dismissal and liability

for any damages arising therefrom.

54a

third-party beneficiary status under any confidential-

ity agreement and may enforce the agreement against

any breaching employee. Jd. § 2.301(h) (2) (ii) (¢)

(1980). If EPA were hiring direct competitors of the

affected business to conduct the inspection monitor-

ing, a court might be forced by equitable considera-

tions to put a halt to the practice. It does not appear

in this case, however, that PEDCo Environmental,

Inc., was in direct competition with Stauffer. If an

unauthorized use or disclosure is made, Stauffer can

seek injunctive and damage relief against PEDCo

and the employee. Likewise, in this Court’s opinion

an affected business should be able to hold EPA re-

sponsible if it can show that EPA could have reason-

ably foreseen a

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