# Opposition — United States v. Stauffer Chemical Co.

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## Record

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

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0549%3A2. Public record. Not legal advice.