Opposition — United States v. Stauffer Chemical Co.

a

Office-Supreme Court, U

FILES

No. 82-1448 MAR 23 1983

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

UNITED STATES OF AMERICA,

Petitioner,

¥.

STAUFFER CHEMICAL COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

RESPONDENT’S MEMORANDUM IN OPPOSITION

Of Counsel:

CLEARY, GOTTLIEB, STEEN CHARLES F, LETTOW

& HAMILTON (Counsel of record)

1752 N Street, N.W. 1752 N Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 728-2748

ROGER C. ZEHNTNER

Westport, Connecticut 06880

Counsel for Respondent

March 23, 1983 Stauffer Chemical Company

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED *

1. Whether EPA is collaterally estopped from reliti-

gating in this case from the Sixth Circuit, based on an

administrative search warrant issued respecting a plant

in Tennessee, a question of statutory interpretation which

the Tenth Circuit had resolved against EPA in earlier

litigation between the identical parties, based on a com- -

parable warrant issued regarding a plant in Wyoming.

2. Whether EPA has power under Section 114(a) (2)

of the Clean Air Act to designate private contractors as

its “authorized representatives” for purposes of obtaining

and executing administrative search warrants.

* These questions have been restated from those set out in the

petition.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .0.00...0....0.....20ccccccccccccecceseseeees i

I a eseninbieosmmmanonce 1

REASONS FOR DENYING THE PETITION ............ 5

A. The Sixth Circuit Properly Invoked Principles

At The Core Of The Doctrine Of Collateral

EE LUNES Eric Ee 5

B. The Sixth Circuit Correctly Concluded That

EPA Could Not Designate Private Contractors

To Enter, Search, And Inspect Plants iacedipsoaace 10

ERE SERN 6 | FD lO 14

i cueonidebhinanapnbepnoenpisooees la

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

American Medical International, Inc. v. Secretary

of Health, Education, & Welfare, 677 F.2d 118

SINR OD cc ial ea 7,8

Bock v. Perkins, 189 U.S. 628 (1891) .....0000000000000.... 13

Bunker Hill Co. v. EPA, 658 F.2d 1280 (9th Cir.

ON aledai 5, 10,11

Continental Can Co. Vv. Marshall, 603 F.2d 590

I FN a li i)

E. 1. du Pont de Nemours & Co. Vv. Train, 430 U.S.

ft ie ee ee ee, ee 9

Edmonds Vv. Compagnie Generale Transatlantique,

BEARS SIR Ree ec ace en 13

Hicks v. Quaker Oats Co., 662 F.2d 1158 (5th Cir.

| ROSS la A 8 Ve SN 4

Isbrandtsen Co. V. Johnson, 343 U.S. 779 (1952)... 13

Montana Vv. United States, 440 U.S. 147 (1979)... 6,7

NLRB v. Amaz Coal Co., 453 U.S. 322 (1981) ...... 10

Parklane Hosiery Co. Vv. Shore, 439 U.S. 322

ge AE SIE EO ries Senipe VN Rie 7

Shaw Vv. North Pennsylvania R.R., 101 U.S. 557

I i ain hein caddcenhgnaalesepiaanendsbinboaal 13

Starker v. United States, 602 F.2d 1341 (9th Cir.

, aera nL I IR Ran ee sem Ie A)

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

(BNA) 1787 (D. Wyo. 1980), aff'd sub nom.

Stauffer Chemical Co. v. EPA, 647 F.2d 1075

I Sn cacsinlileetias passim

Steele v. United States (No. 2), 267 U.S. 505

(ETE LCT 2: A ETS AES PREECE 13

Train V. Natural Resources Defense Council, Inc.,

PE Rs A I 6 go icisocteninsnsctacesnicenaipisediodionainasas 9

Union Electric Co. v. EPA, 427 U.S. 246 (1976)... 9

United States v. Gannon, 201 F. Supp. 68 (D. Mass.

GELS IE 2he SFE A SI eee ie ee og mC en 18

United States v. ITT Rayonier, Inc., 627 F.2d

I I i asd ce aera g

v

TABLE OF AUTHORITIES—Continued

Statutes: Page

Clean Air Act

Section 114(a) (2), 42 U.S.C. § 7414(a) (2)..passim

Section 114(c), 42 U.S.C. § 7414(c) oe... 13, 123

Section 114(d), 42 U.S.C. § 7414(d) 0000000... 11,12

Section 206(c), 42 U.S.C. § 7525 (¢) oo... 12

Federal Water Pollution Control Act

Section 308, 338 U.S.C. § 1818 .........0...00..0....0... 12

Miscellaneous:

Restatement (Second) of Judgments (1980) ......... 4,6,7

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

printed in 1972 U.S. Code Cong. & Ad. News,

I asctinicsichetindsrnsiaciinsierralasevaakiai tac ae 12,13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-1448

UNITED STATES OF AMERICA,

- Petitioner,

STAUFFER CHEMICAL COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

RESPONDENT’S MEMORANDUM IN OPPOSITION

Respondent Stauffer Chemical Company (“Stauffer’’)'

opposes the petition for writ of certiorari.

STATEMENT

Both in this case (“Stauffer IJ”) and in an earlier

litigation between the same parties (“Stauffer I’’),? EPA

obtained and sought to execute warrants enabling pri-

vate contractors to enter and inspect Stauffer’s plant

premises. At issue are principles at the core of the doc-

trine of collateral estoppel. The identical question of

statutory construction presented in this case was raised,

1In accordance with Rule 28.1 of the Rules of the Supreme

Court, Stauffer’s non-wholly owned subsidiaries and affiliates are

set forth infra, at Appendix A.

2In re Stauffer Chemical Co., 14 Env’t Rep. Cas. (BNA) 1737

(D. Wyo. 1980), af’'d sub nom. Stauffer Chemical Co. v. EPA, 647

F.2d 1075 (10th Cir. 1981).

2

argued at length, and decided adversely to petitioner

(“Environmental Protection Agency” or “EPA’”) in

Stauffer I.

The administrative search warrant in Stauffer I was

issued on May 8, 1980, by a federal magistrate in the

United States District Court for the District of Wyoming.’

It authorized designated EPA officials and employees of

EPA’s contractor, GCA Corporation (“GCA’’), to enter

and inspect Stauffer’s phosphate ore processing plant lo-

cated at Leefe (near Sage), Wyoming. Two EPA officials

and two GCA employees sought to execute the warrant on

the morning of May 13, 1980. They were accompanied

by a state official* Stauffer’s plant manager told the

EPA and state officials that they were welcome to con-

duct the inspection but refused entry to the GCA em-

ployees absent an agreement to protect trade secrets. The

EPA officials decided not to conduct the inspection them-

selves, and the EPA and GCA group departed. Stauffer

immediately moved in federal district court to quash the

warrant and also sought a temporary restraining order

enjoining execution of the warrant. The court granted

such an order on the same day, May 13, 1980.

Thereafter, a two-day evidentiary hearing was held

in the district court, and on June 23, 1980 the court en-

tered judgment quashing the warrant and enjoining EPA

from causing its private contractors to enter Stauffer’s

plants in Wyoming to conduct inspections. The court’s

ruling was premised on alternative grounds: first, that

EPA had no authority under Section 114(a) (2) of the

Clean Air Act, 42 U.S.C. § 7414(a) (2), to designate

private contractors as its ‘authorized representatives” for

* This recitation of facts regarding Stauffer J is adapted from

the findings of fact made by the district court, reported at 14

Env’t Rep. Cas. (BNA) 1787-1740.

*The inspection was to be made in connection with EPA's

“compliance evaluation oversight program” (14 Env’t Rep. Cas.

(BNA) 1739, © 14), for the purpose of auditing state enforcement

and inspection procedures. /d.

3

purposes of entry and inspection; and second, that in the

particular circumstances EPA’s use of an ex parte pro-

cedure to obtain the administrative search warrant from

the federal magistrate violated principles of fundamental

fairness. On August 19, 1980, EPA filed notice of its

appeal to the Tenth Circuit.

After the Wyoming federal court’s decision but before

EPA’s appeal from that decision was filed, EPA sought

from a federal magistrate sitting in Nashville, Tennessee,

a similar administrative search warrant for a contractor

to enter and inspect another Stauffer plant.’ The war-

rant was issued on August 7, 1980, and authorized

EPA to use a contractor, PEDCO Environmental, Inc.

(“PEDCO”), to conduct an oversight inspection at a

Stauffer elemental-phosphorus plant located in Mount

Pleasant, Tennessee. On that same day, an EPA official

and two PEDCO employees arrived at the plant to make

the inspection. A Tennessee official accompanied them.

Again, Stauffer’s plant staff welcomed inspection by the

EPA and Tennessee officials but refused to allow entry by

PEDCO’s employees in the absence of a written agree-

ment to protect trade secrets. No inspection was made.

On the following day, EPA filed in federal district court

a petition for an order to show cause why Stauffer should

not be held in contempt, and Stauffer filed a motion to

quash the warrant and an application for a temporary

restraining order barring its execution. The petition and

motion were consolidated by the district court. Stauffer’s

application for a temporary restraining order was mooted

by EPA’s agreement not to seek to execute the warrant

pending the court’s decision on the cross-rotions.

On April 17, 1981, the Tennessee federal district court

denied Stauffer’s motion to quash and also denied EPA’s

contempt petition on the ground that “Stauffer legiti-

5 This recitation of facts regarding Stauffer I] is taken from

the opinion of the district court, reported at 511 F. Supp. 744, 745

and reprinted at Pet. App. 44a, 45a.

4

mately believed that private contractors were not au-

thorized representatives under the Clean Air Act” to per-

form inspections. (Pet. App. 56a; 511 F. Supp. 750.)

Stauffer promptly appealed, and after the district court

refused to stay its decision and execution of the warrant

pending appeal, Stauffer obtained a stay to that effect

from the Sixth Circuit.

On May 8, 1981, three weeks after the Tennessee fed-

eral district court’s decision, the Tenth Circuit affirmed

the Wyoming federal district court’s decision quashing

the warrant there at issue and enjoining EPA from using

contractors to make inspections at Stauffer’s plants in

Wyoming. Stauffer Chemical Co. v. EPA, 647 F.2d 1075

(10th Cir. 1981). The Tenth Circuit’s decision rested

squarely and solely on the ground that private contrac-

tors were not “authorized representatives” of EPA for

purposes of Section 114(a) (2) governing administrative

searches. EPA unsuccessfully sought rehearing but did

not file a petition for certiorari in this Court.*

Stauffer’s appeal to the Sixth Circuit was decided on

July 7, 1982. The court of appeals reversed the Tennessee

federal district court, adopting two alternative grounds

for its decision that the warrant should have been

quashed. Each of the three judges wrote separately.

Judge Weick, joined by Judge Jones, concluded that EPA

was collaterally estopped from obtaining a warrant au-

thorizing a private contractor to make an inspection, be

cause of the prior decision in Stauffer I us affirmed by

* Because the Wyoming federal court in Stauffer ] based its

holding on alternative grounds, for purposes of collateral estoppel

its judgment was not necessarily conclusive as to either of the

grounds standing alone. See Hicks v. Quaker Oats Co., 662 F.2d

1158, 1168-73 (5th Cir. 1981); Restatement (Second) of Judgments

§ 27, comment i (1980). However, when the Tenth Circuit upheld

the Wyoming federal district court’s interpretation of the Clean

Air Act, the judgment then definitely became conclusive as to that

ground. See Hicks v. Quaker Oats Co., supra; Restatement, supra,

comment o.

5

the Tenth Circuit. (Pet. App. 8a-13a, 84a-38a; 684 F.2d

1179-81, 1190-92.) District Judge Siler, sitting by desig-

nation, did not agree that the doctrine of collateral es-

toppel applied. (Pet. App. 39a-4la; 684 F.2d 1192-93.)

Judge Siler joined Judge Weick, however, in concluding

that Section 114/a) (2) of the Act did not permit EPA

to designate contractors as its representatives for pur-

poses of entry and inspection. (Pet. App. 39a; 684 F.2d

1192.)* Judge Jones did not reach this issue of statutory

construction because of his expressed view that, as to

Stauffer, EPA was collaterally estopped from rearguing

the issue. (Pet. App. 34a; 684 F.2d 1190.) Each judge

thus joined in the result, and Judge Weick’s opinion spoke

for a majority of the court on each of the two alternative

holdings.

A petition for rehearing and rehearing en banc was

denied.*

REASONS FOR DENYING THE PETITION

A. The Sixth Circuit Properly Invoked Principles At The

Core Of The Doctrine Of Collateral Estoppel

The collateral estoppel prong of the Sixth Circuit’s de-

cision rests squarely on principles at the core of the doc-

trine of collateral estoppel. In the Wyoming federal dis-

trict court and the Tenth Circuit, EPA fully and fairly

* Subsequent to the decision of the Tenth Circuit on the statutory-

construction question, the Ninth Circuit had rawd in Bunker Hill

Co. Vv. EPA, 658 F.2d 1280 (9th Cir. 1981), that EPA was em-

powered by Section 114(a)(2) of the Act to designate private

contractors as its representatives for purposes of entry, search, and

inspection. Judge Weick’s opinion (in this respect for himself and

Judge Siler) acknowledges and discusses the direct conflict in de-

cisions between Stauffer I and Bunker Hill, criticizes the Ninth

Circuit decision in Bunker Hill, and comes down squarely in agree-

ment with the Tenth Circuit in Stauffer J. (Pet. App. 15a la;

684 F.2d 1182-89.)

* The court’s opinion denying rehearing is reported at 684 F.2d

at 1193. Compare Petition at 1.

6

litigated with Stauffer the question of EPA’s power to

designate private contractors to enter, search, and inspect

plants, and EPA lost. If collateral estoppel is ever to be

applied in a suit by the government against a private

litigant, it should be applied here; the subsequent action

originating in Tennessee federal district court involved

precisely the same question and the same parties.

This Court has outlined the policies behind collateral

estoppel as follows:

To preclude parties from contesting matters that

they have a full and fair opportunity to litigate pro-

tects their adversaries from the expense and vexa-

tion attending multiple lawsuits, conserves judicial

resources, and fosters reliance on judicial action by

minimizing the possibility of inconsistent decisions.

Montana v. United States, 440 U.S. 147, 153-54

(1979).

These policies are reflected in the description of the

doctrine of collateral estoppel found in the Restatement

(Second) of Judgments § 27 (1980):

When an issue of fact or law is actually litigated

and determined by a valid and final judgment, and

the determination is essential to the judgment, the

determination is conclusive in a subsequent action

between the parties, whether on the same or a dif-

ferent claim.

No question has been raised here or in the Sixth Cir-

cuit concerning (1) EPA’s full and fair opportunity to

litigate in the Wyoming federal district court and the

Tenth Circuit, (2) the actual litigation of the statutory

contractor-search question in those courts, (3) the de-

termination of the question in a valid and final judgment

by those courts, and (4) the essentiality of such deter-

mination to the judgment of the Wyoming federal dis-

trict court as affirmed by the Tenth Circuit.’

9 See supra, at 4n.6.

7

Most importantly, the parties to both cases are the

same. Such mutuality of parties to successive litigation

is no longer a prerequisite ior invocation of issue preclu-

sion by way of collateral estoppel. See Parklane Hosiery

Co. Vv. Shore, 439 U.S. 322, 326-328 (1979). Mutuality

nonetheless remains an important consideration in ap-

plying collateral estoppel in a particular case. See Ameri-

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

Education, and Welfare, 677 F.2d 118, 121 n.24, 124

(D.C, Cir. 1981).

This also is an instance of defensive use of collateral

estoppel. Stauffer has sought to prevent EPA from as-

serting a purported right (to designate contrectors as its

representatives for purposes of entry, search, and inspec-

tion) which EPA has previously litigated and lost against

Stauffer. See Parklane Hosiery Co. v. Shore, 439 U.S.

322, 326 n.4 (1979). Stauffer ought not to be forced to

litigate precisely the same question over and over again.

In the circumstances, Stauffer faced not only the expense

of relitigation but the risk of a contempt citation for

refusing to obey the warrant.

In Montana v. United States, supra, the foregoing

fundamental principles were fully recognized, and col-

lateral estoppel was applied against the government. This

Court held that, like any other litigant, the government

could not bring multiple lawsuits against the same party

in the hope that it might eventually find a court that

accepted the government’s arguments. EPA’s petition

essentially amounts to a request that the Court overrule

Montana.

EPA attempts to avoid the direct application of Mon-

tana by suggesting that “special circumstances,” 440 U.S.

1° The Restatement (Second) of Judgments continues to separate

principles relating to relitigation “between the parties” (§§ 27, 28),

and “Issue Preclusion in Subsequent Litigation with Others”

($29, heading). Section 29 of the Restatement sets out additional

considerations which should be addressed before invoking collateral

estoppel in situations where mutuality is not present.

at 155, are present in this case, which warrant an excep-

tion to the otherwise normal application of collateral es-

toppel. The “special circumstance” suggested by EPA is

the government’s interest in relitigating important ques-

tions of public law that have general applicability to

broad classes of persons or businesses. For support, EPA

relies heavily on the opinion of the Court of Appeals for

the District of Columbia Circuit in American Medical

International, Inc. v. Secretary of Health, Education, and

Welfare, 677 F.2d 118 (D.C. Cir. 1981).

In American Medical, the court did recognize the in-

terest of the government in relitigating questions of law,

when such questions are raised in subsequent suits against

different parties than those who were present in the

court where the issues were first joined. In the American

Medical case, however, the court noted that the situation

was different when the subsequent litigation was between

the same parties:

The foregoing analysis intercepts only parties who

did not participate in the initial suit. If the Govern-

ment is litigating with the same adversary in both

cases, an estoppel will petrify the law only as to that

one party—obviously not an unjust result—and ac-

cordingly will work no preclusion generating national

shockwaves.

Id. at 124.

The only reason that the court did not allow estoppel in

American Medical was that the private party in the orig-

inal suit had subsequently merged with another defend-

ant in the second case. Applying estoppel, therefore,

would have resulted in using different rules of law for

different subsidiaries of the same corporation, an obvi-

ously unacceptable result. No such problem exists here.

The Sixth Circuit in this case likewise considered the

special interest of the government in relitigating legal

9

questions and refused to give it dispositive weight.’ As

Judge Jones noted in his concurring opinion:

While I do not favor precluding a federal agency’s

ability to test its policy decisions in more than a

single circuit, in circumstances where the same de-

fendant is sued in seriatim without the agency at-

tempting to exhaust its appeals on the previous judg-

ment, the equities favor application of collateral

estoppel and not its abdication.

(Pet. App. 38a; 684 F.2d 1192.)

And in Montana itself, while not directly addressing the

question, the Court did not recognize any overriding gov-

ernmental interest, but rather pointed significantly to the

generally applicable considerations bearing on invocation

of collateral estoppel. See Montana v. United States, su-

pra, 440 U.S. at 153-54.

In sum, if the position pressed here by the government

is accepted, the proffered exception will swallow the rule,

and collateral estoppel will never again be available to

cut off successive suits by the government involving is-

sues of law. The government may always argue that its

position in a case is of national legal significance. In

Montana, for instance, the government’s suit was based

on the Fourteenth Amendment and the Supremacy Clause.

11 The Sixth Circuit did not fail to consider the Supreme Court

cases that approve of agency relitigation. See, e.g., E.J. du Pont

de Nemours & Co. V. Train, 430 U.S. 112 (1977); Union Electric

Co. Vv. EPA, 427 U.S. 246 (1976); Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60 (1975). Judge Jones’ opinion

particularly noted key distinctions between those cases and this

one: relitigation in those cases involved “different parties as

opposed to the same party,” and this case involves a defensive

rather than offensive use of collateral estoppel. (Pet. App. 38a;

684 F.2d 1191-92 (emphasis in the original).) In comparable circum-

stances, these distinctions have been applied by other courts of

appeals to reach the conclusion that the government should be

estopped. See United States v. ITT Rayonier, Inc., 627 F.2d 996

(9th Cir. 1980); Continental Can Co. V. Marshall, 603 F.2d 590

(7th Cir. 1979) ; Starker v. United States, 602 F.2d 1341 (9th Cir.

1979).

10

Certainly those issues are as important as a question of

statutory construction under the Clean Air Act.

B. The Sixth Circuit Correctly Concluded That EPA

Could Not Designate Private Contractors To Enter,

Search, And Inspect Plants

The controversy at the heart of this case turns on 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 generally that “the

Administrator [of EPA] or his authorized representa-

tive’ may enter, search, and inspect premises subject to

regulation under the Act. The Sixth Circuit, after a

careful and painstaking review of all relevant considera-

tions, reached the correct result when it held that a pri-

vate contractor could not be such an “authorized repre-

sentative.” **

The function and purpose of a statute have important

roles to play in statutory construction. See NLRB vy.

Amaz Coal Co., 453 U.S. 322 (1981). That role is par-

ticularly appropriate in a case such as this, where the

phrase in question has not been defined in the Clean Air

Act, and the controversy over its meaning cannot be re-

solved on the face of the Act.’*

The Sixth Circuit carefully and precisely parsed the

provisions of Section 114(a)(2), considering especially

the language of that particular statutory paragraph, the

legislative history, other related portions of the Act, and

ancillary aids to statutory construction. The court initi-

ally reviewed the conflicting decisions of the Tenth Cir-

cuit in Stauffer I and the Ninth Circuit in Bunker Hill

Co. v. EPA, 658 F.2d 1260 (9th Cir. 1981). (Pet. App.

15a-16a; 684 F.2d 1182-83.) Its assessment of the lan-

12 Because Judge Siler joined the portion of Judge Weick’s

oipnion which dealt with this issue, it will be denominated as the

“court’s” or as the “Sixth Circuit’s” ruling.

18In Amaz Coal, this Court also construed the term “representa-

tive” as it is used in the National Labor Relations Act.

11

guage of Section 114(a)(2) and of the issues presented

reflects the prior analyses by the courts in Stauffer I and

Bunker Hill. The Sixth Circuit observed that perfect in-

ternal consistency could not be attained among the various

provisions of the Clean Air Act.’* Then, the court turned

to the specific legislative history of Section 114/a) (2).

The court noted that in the pertinent House and Senate

Committee Reports, the terms “authorized representa-

tive” and “officers and employees” were treated as being

identical in meaning. Both were understood to refer to

“DHEW personnel ;” neither was intended to refer to pri-

vate contractors. (Pet. App. 18a-19a; 684 F.2d 1183-84.)

(The Department of Health, Education, and Welfare

administered the Act prior to EPA’s formation. )

The court also attempted to determine which of the

alternative meanings would be most consistent with the

various other provisions of the Clean Air Act that use

the phrases “authorized representative” or “officers and

employees.” (Pet. App. 20a-26a; 684 F.2d 1184-86.)

Though perfect harmony among the provisions was im-

possible, the court found that substantial difficulties were

created if “authorized representative” in Section 114(a)

(2) was defined to include anyone other than EPA em-

ployees. For example, Section 114(d) directs “the Ad-

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

relevant state agency before mak!ng an inspection under

Section 114(a)(2).° The court concluded “that Congress

would not have intended to entrust this kind of sensitive

intergovernmental communication to employees of private

4 The Act has become known as one of the Nation’s most com-

plex and subtle pieces of legislation. While part of the reason for

this distinction is attributable to the Act’s numerous detailed pro-

visions, part of the difficulty in construing many of the Act’s pro-

visions stems from considerations of legislative drafting. This

case falls in the latter category. The word “representative” is used

three times in Section 114, in subsections (a) (2), (c), and (d), and

each time the word in context could have a different meaning.

15 Both the inspection in Wyoming and that in Tennessee were

designed to audit state monitoring and enforcement efforts.

12

contractors.” (Pet. App. 21a; 684 F.2d 1184.) Also, in

Section 206(c) of the Clean Air Act, Congress authorized

“officers and employees” of EPA to enter the plants of

motor vehicle manufacturers for testing vehicles or en-

gines. Nothing in the legislative history of the two sec-

tions suggested that Congress meant to give EPA broader

authority with regard to inspections under Section 114

than under Section 206. To the contrary, the legislative

history suggested that the use of the two different terms

was nothing more than a drafting accident, and that the

two facially different terms were intended to have iden-

tical meanings. The court found it more logical] to assume

that Congress meant to harmonize the inspection and

entry power under both sections, thereby limiting it to

only EPA officers and employees. (Pet. App. 23a-26a;

684 F.2d 1185-86.)

The Sixth Circuit found further support for its reading

of Section 114(a)(2) in the legislative history of the

1972 amendments to the Federal Water Pollution Control

Act (“Clean Water Act’). Section 308 of the Clean

Water Act, 33 U.S.C. § 1318, was enacted approximately

18 months after Section 114 of the Clean Air Act, and

was taken virtually word-for-word from Section 114.

Regarding the matching provision of the Clean Water

Act, the Senate report on the bill which was the basis for

fina) enactment stated:

It should also be noted that the authority to enter,

as under the Clean Air Act, is reserved to the Ad-

ministrator and his authorized representatives which

16 The court decided that the word “representative” when used

In Section 114(c) did mean someone other than officers and em-

ployees of the Agency. (Pet. App. 2la-22a; 684 F.2d 1184-85.)

Section 114(c) allows EPA's Administrator in specified circum-

stances to disclose confidential information, however obtained by

the Agency, to “other officers, employees or authorized representa-

tives of the United States.” This Section thus on its face covers

at least people at other federal agencies (¢.g., federal judges, at-

torneys at the Department of Justice and U.S. Attorneys, and Coast

Guard officers and officials) and may reach more broadly than that.

13

such representatives must be fulltime employees of

the Environmental Protection Agency. The authority

to enter is not extended to contractors with the EPA

in pursuit of research and development.

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

printed in 1972 U.S. Code Cong. & Ad. News 3668,

3729 (emphasis added).

The court found this legislative statement of intent to be

convincing, based on the close connection between the

Clean Air and Clean Water Acts and the very short

period of time that had elapsed between passage of the

Clean Air Act and issuance of the report on the Clean

Water Act. (Pet. App. 26a-29a; 684 F.2d 1187-88,)

The Sixth Circuit rejected EPA’s claim that Congress,

by its inaction, had somehow ratified EPA’s use of pri-

vate contractors in conducting inspections. (Pet. App.

3la-32a; 684 F.2d 1189.)

The Sixth Circuit also observed that “the execution of

search warrants is a traditionally governmenta] func-

tion.” (Pet. App. 38a; 684 F.2d 1189.) Its decision

comports with the general principle that, absent specific

direction by Congress, the governmental functions of

inspecting private premises and executing search war-

rants should be carried out by government employees

only. See Steele v. United States (No, 2), 267 U.S. 505

(1925); Bock v. Perkins, 189 U.S, 628 (1891); United

States v. Gannon, 201 F.Supp. 68, 73 (D. Mass. 1961).

Here, there is no specific mandate from Congress in dero-

gation of the common law. See Edmonds v. Compagnie

Generale Transatlantique, 443 U.S, 256, 268 (1979);

Isbrandtsen Co. Vv. Johnson, 348 U.S. 779, 783 (1952);

Shaw v. North Pennsylvania R.R., 101 U.S. 557, 565

(1980),

14

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Of Counsel:

CLEARY, GOTTLIEB, STEEN CHARLES F, LETTOW

& HAMILTON (Counsel of record)

1752 N Street, N.W, 1752 N Street, N.W,

Washington, D.C, 200386 Washington, D.C, 20086

(202) 728-2748

ROGER C, ZEHNTNER

Westport, Connecticut 06880

Counsel for Respondent

Stauffer Chemical Company

March 23, 1983

la

APPENDIX A

STAUFFER CHEMICAL COMPANY'S

AFFILIATES AND SUBSIDIARIES

NOT WHOLLY OWNED

Cornwall Chemicals, Limited

Derivados Macroquimicos, S.A.

Electroquimica Potosi, S.A.

Fluorex, S.A.

Halocarburos, S.A.

Industrias Quimicas de Mexico, S.A.

Industrias Quimicas Serpiol, S.A.

Kali-Chemie Stauffer G.m.b.H.

Kashima Industries Company

Limanol, S.A.

Montrose Chemical Corporation of California

Mount Pleasant Chemical Company

Pacific Chemical Industries Pty., Ltd.

Promotora, I.Q.S.A.

Quimica Lucava, S.A.

Stauffer Australia Limited

Stauffer Chemical Company ‘New Zealand), Limited

Stauffer Chemical Company of Wyoming

Stauffer Rioplatense S.A.L.C.

SWS Silicones Corporation

Texas Alkyls Belgium, S.A.

Texas Alkyls, Inc.

Toyo-Stauffer Chemical Co., Ltd.