# Petition — United States v. Stauffer Chemical Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 464 U.S. 165

## Text

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

ar

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

IV

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

Vv

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)

2

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.

3

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

4

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.

5

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.

6

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).

7

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

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.

10

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

ll

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).

12

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

13

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]”

14

(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

15
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).

16

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

© Although the United States was a party to Montana, no con-
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.

17

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,

18

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

19

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

20

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.

21

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.

22

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.

24

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.

25

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).

26

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.

27

(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.

28

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.

29

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.

30

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

la

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.)

4a

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.

I

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

5a

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-

6a

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.

7a

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

8a

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.

II

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

9a

“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

A

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.*

B

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.

IV
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0549%3A1. Public record. Not legal advice.