Petition — Mobil Oil Corp. v. United States Environmental Protection Agency

Supreme Court, U.S.

FILED

FEB 6 1964

O37 1 2 9

ALEXANDER L. STEVAS

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

MOBIL OIL CORPORATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and VALDUS ADAMKUS, REGIONAL ADMINISTRATOR,

REGION V,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Of Counsel

DAVID EDWARD NOVITSKI

Mobil Oil Corporation

8225 Gallows Road

Fairfax, Virginia 22037

Susan R. CsIa

ARTHUR G. HOFMANN

Mobil Oil Corporation

600 Woodfield Drive

Schaumburg, Illinois 60196

THOMAS D. ALLEN

WILDMAN, HARROLD, ALLEN

& DIxon

One IBM Plaza

Chicago, Illinois 60611

February 6, 1984

JOHN J. ADAMS

MICHAEL B. BARR

(Counsel of Record)

MARK G. WEISSHAAR

CHARLES D. OSSOLA

HUNTON & WILLIAMS

P.O. Box 19230

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20086

202/955-1500

Counsel for Petitioner

Mobil Oil Corporation

WILSON - Eres Printing Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Is the Validity of a Warrant Obtained by EPA

Pursuant to its Alleged Authority Under the Clean

Water Act to be Determined by the Standards for

Demonstrating Probable Cause Set Forth in Ca-

mara v. Municipal Court, 387 U.S. 523 (1967),

and Marshall v. Barlow’s, 436 U.S. 307 (1978),

or by the “Interest-Balancing’” Test Adopted by

the Court of Appeals in this Case?

2. Does an Affidavit Which Refers to an Alleged In-

spection and Sampling Program but Does Not Re-

cite or Incorporate by Reference the Criteria Gov-

erning that Program or Explain the Application of

Those Criteria to the Facility Being Sampled Sat-

isfy the Probable Cause Standards of Camara and

Barlow’s?

3. Does Section 308 of the Clean Water Act Author-

ize EPA to Sample Internal Wastewater Streams

of a Facility When Such Sampling Is Not Required

by the Facility’s NPDES Permit or Agency Regu-

lation, Is Not Necessary to Determine Compliance

With the Act or the Facility’s Permit, and Is Not

Based on an Articulated Administrative Plan for

Gathering Data to Support Developrrent of New

Effluent Limitations?

(i)

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVI-

I nas cnhrcogtenniecnteeremnbnasectinneimnenie

REASONS FOR GRANTING CERTIORAR] ..............

A. The Decision Of The Court Of Appeals Con-

flicts With This Court’s Decisions In Camara

And Barlow's

B. This Case Presents Important Questions Of

Law That Deserve Attention By This Court

PPP Pee rrr eee eee ree TTT Tee Ts

C. The Seventh Circuit’s Erroneous Interpretation

of Section 308 of the CWA Raises A Question

Of First Impression And Substantial Federal

Importance

RE AI AE EL

APPENDIX—(Bound Separately)

LIST—Rule 28.1

(iii)

la

1b

iv

TABLE OF AUTHORITIES

CASES: Page

Camara v. Municipal Court, 387 U.S. 523 (1967)....passim

Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st

SITE: III ‘ccccscotuatiteseninnssshnnoannbtisenscaeeiuaasanenanmanbaeetaia 18, 16, 20

Dow Chemical Co. v. EPA, 536 F. Supp. 1855 (E.D.

Bs TD cictniientnnsipadeeinhitcntbinntnizasctbebsansiniaghaaieies 19

E.I. duPont de Nemours & Co. v. Train, 480 U.S.

REPRE RE Acre aver ar rerenene a aN 26

EPA v. National Crushed Stone Ass'n, 449 U.S. 64

NTI. ca ecticsth. herds eaccseidn npaibhaccsst hace haamien akiebesalnmesembannan 21, 26

First Alabama Bank of Montgomery v. Donovan,

602 F.2d 714 (llth Cir. 1962) ............................... 20

In Re Northwest Airlines, Inc., 587 F.2d 12 (7th

Se I cate ne ee eee 13, 16, 20

Marshall v. Barlow's Inc., 486 U.S. 307 (1978)......passim

Marshall v. Chromalloy American Corp., 589 F.2d

1885 (7th Cir.), cert. denied, 444 U.S. 884

INIT. sschstchensesldutseactobeictiapatiacamedcreidatasstdaciatinate Dxphepiaticetmdina 13, 16

Michigan v. Tyler, 486 U.S. 499 (1978) ...0..000000.0.... 15

Mobil Oil v. EPA, 716 F.2d 1187 (7th Cir. 1983)....1, 9,14

Mobil Oil v. EPA, 18 Env’t Rep. Cas. 2031 (N.D.

EINE AE Rs daa 1, 8,18

Stoddard Lumber Co. Inc. v. Marshall, 627 F.2d

en a eee 18, 16, 20

United States v. Mississippi Power and Light Co.,

688 F.2d 899 (5th Cir.), cert. denied, 454 U.S.

RRR Mier Res esa a ares Pe IAM 18

United States v. Prendergast, 585 F.2d 69 (8d Cir.

REARS res MEPS a es BNR ISTio U Nar a a aR 20

United States v. Voorhies, 663 F.2d 30 (6th Cir.

1981), cert. denied, 456 U.S. 929 (1982) ............. 20

Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir.

URE Ee Ae rae 9 008s 16

CONSTITUTION:

re ae Eee oe 2

Vv

TABLE OF AUTHORITIES—Continued

STATUTES: Page

Clean Air Act, 42 U.S.C. § 7414 (Supp. V 1981)... 18

Clean Water Act, 38 U.S.C. §§ 1251, et seq. (1976

| _} FDP RRRL OS OnE ar nae: SE ee

83 U.S.C. § 1811 (1976 & Supp. V 1981) ............

33 U.S.C. § 1811(b) (1976 & Supp. V 1981) .....

ge EO Ul, a ee

83 U.S.C. § 1816 (a) (1) (1976) .....0..0... ee

83 U.S.C. § 1818 (1976 & Supp. V 1981) ...........

33 U.S.C. § 1818(a) (1976 & Supp. V 1981) .....

$8 U.S.C. § 1818(a) (A) (1976) ....................0..

83 U.S.C. § 1818 (a) (A) (iv) (1976) ................

83 U.S.C. § 1818(a) (B) (ii) (1976)...

83 U.S.C. § 1819 (1976 & Supp. V 1981) ............

83 U.S.C. § 1842(a) (1976 & Supp. V 1981) .....

$8 U.S.C. § 1842(a) (1) (1976) ........... ee

33 U.S.C. § 1842(b) (1976 & Supp. V 1981) .....

88 U.S.C. § 1842(b) (2) (1976) ..........

88 U.S.C. § 1842(c) (1) (Supp. V 1981) ............

88 U.S.C. § 1863(11) (1976) .......................000000

$3 U.S.C. § 1862(12) (1976) ....................cccec00

$3 U.S.C. § 1862(12) (A) (1976) ......................

33 U.S.C. § 1862(14) (Supp. V 1981) ................ 4,

Comprehensive Environmental Response, Compen-

sation, and Liability Act, 42 U.S.C. § 9604 (e) (1)

OG tee eee ee 19

Resource Conservation and Recovery Act, 42 U.S.C.

§ 6927(a) (1) (Supp. V 1981) ......................cec00 9

Se Rees ee CD ictacescisovenatececenesncinitseninnn 2

8

8

ee a

S

te tw)

ore &

BaBBS Sa

—

28 U.S.C. § 1291 (1976 & Supp. V 1981) ..................

28 U.S.C. § 1881 (Supp. V 1061) ............ccccrccssscccsesss

REGULATIONS:

40 C.F.R. § 122.44(i) (1983) .................... seintichpiation 28

40 C.F.R. § 122.44(i) (1) (iii) (1983) ..................... 28

40 C.F.R. § 122.45 (i) (2) (1988) .............ccecesecseneees 23

GO GPR. § BEB (RGB) cccreceesccrsczsscesseccscescsesecessessece 27

vi

TABLE OF AUTHORITIES—Continued

FEDERAL REGISTER:

47 Fed. Reg. 46434 (1982) ...............cccccscccsseeseseeeeeeees

MISCELLANEOUS:

The Environmental Policy Division of the Con-

gressional Research Service of the Library of

Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972

a a a ER ee ee

Rothstein, OSHA Inspections After Marshall v.

Barlow’s, Inc., 1979 Duke L.J. 68 .0000 nn.

Environment Reporter (BNA), 41 Federal Laws

Index 2451 (April 11, 1979) ........ccccccccccecceeeeee

19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

MOBIL OIL CORPORATION,

. Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and VALDUS ADAMKUS, REGIONAL ADMINISTRATOR,

REGION V,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Mobil Oil Corporation* respectfully petitions for a writ

of certiorari to review the opinion of the United States

Court of Appeals for the Seventh Circuit entered in this

proceeding on September 14, 1983.

OPINIONS BELOW

The opinion of the Court of Appeals in Mobil Oil Cor-

poration v. United States Environmental Protection

Agency is reported at 716 F.2d 1187 (7th Cir. 1983),

and is reproduced in the Appendix to this petition. App.

la. The final order and judgment of the district court

is reported at 18 Env’t Rep. Cas. (BNA) 2031 (N.D.

Ill. 1982), and is also reproduced in the Appendix to this

petition. App. 9a.

*A list of Mobil Oil Corporation’s parent, subsidiaries and

affiliates, as required by Rule 28.1 of the Rules of the Supreme

Court, follows the signature page of this petition. App. 1b.

2

JURISDICTION

The opinion of the Court of Appeals in this case was

entered on September 14, 1983. A petition for rehearing

and suggestion for rehearing en banc were denied on

November 8, 1983. This petition is being filed within the

time specified in Rule 20.2 of the Rules of the Supreme

Court and 28 U.S.C. § 2101(c) (1976).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Consti-

tution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

U.S. Const., amend. IV.

Section 308 of the Clean Water Act, 33 U.S.C. § 1318

(1976 & Supp. V 1981), provides in pertinent part:

(a) Whenever required to carry out the objective of

this chapter, including but not limited to (1)

developing or assisting in the development of

any effluent limitation, or other limitation, pro-

hibition, or effluent standard, pretreatment

standard or standard of performance under this

chapter; (2) determining whether any person

is in violation of such effluent limitation, or

other limitation, prohibition or effluent standard,

pretreatment standard, or standard of perform-

ance; (3) any requirement established under

this section; or (4) carrying out sections 1315,

1321, 1842, 1344 (relating to State permit pro-

grams), and 1364 of this title—

(A) The Administrator shall require the owner

or operator of any point source to (i) estab-

lish and maintain such records, (ii) make

such reports, (iii) install, use, and maintain

such monitoring equipment or methods (in-

cluding where appropriate, biological moni-

toring methods), (iv) sample such effluents

(in accordance with such methods, at such

locations, at such intervals, and in such

manner as the Administrator shall pre

scribe), and (v) provide such other infor-

mation as he may reasonably require; and

(B) The Administrator or his authorized rep-

resentative, upon presentation of his creden-

tials—

(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

under clause (A) of this subsection

are located, and

(ii) may at reasonable times have access to

and copy any records, inspect any

monitoring equipment or method re-

quired under clause (A), and sample

any effluents which the owner or

operator of such source is required to

sample under such clause.

33 U.S.C. §1318(a) (1976 & Supp. V 1981).

STATEMENT OF THE CASE

Petitioner Mobil Oil Corporation (Mobil) operates a

petroleum refinery near Joliet in Channahon Township,

Will County, Illinois. The Joliet refinery is among the

most modern facilities of its kind in the United States.

The refinery discharges treated wastewater into the

Des Plaines River pursuant to a National Pollutant Dis-

4

charge Elimination System (NPDES) permit issued by

the State of Illinois.' In addition to the compliance moni-

toring which Mobil is required to perform and report to

both EPA and the State of Illinois under the terms of

its NPDES permit, the State of Illinois has inspected

the Joliet refinery on an annual basis for compliance

with the Clean Water Act (CWA).? The refinery has

never been found to be in violation of any environmen-

tal law or regulation. In fact, in 1982, the Joliet re-

finery’s wastewater treatment plant won an award from

the State of Illinois for environmental excellence.

On April 28, 1982, three representatives from EPA’s

Region V office arrived at the Joliet refinery and re-

quested permission to take samples of the refinery’s dis-

charges at the sampling points specified in Mobil’s

NPDES permit.* Those points, which enable sampling

of Mobil’s wastewater after final treatment, are located

near the Des Plaines River and are separate from other

1 Under the Federal Water Pollution Control Act, as amended,

commonly known as the Clean Water Act (CWA or the Act), 33

U.S.C. § 1251 et seq. (1976 & Supp. 1981), individual “point

sources,” defined as “any discernible, confined and discrete convey-

ance... from which pollutants are or may be discharged,” 33 U.S.C.

§ 1262(14) (Supp. V 1981), must obtain a NPDES permit from the

Administrator of the Environmental! Protection Agency (EPA or

the Agency) or from states, such as Illinois, that have approved

permit programs. 33 U.S.C. § 1342(a), (b) (1976 & Supp. V 1981).

The NPDES permit in effect at the time the inspection in this case

took place was issued by the State of Illinois on December 11,

1980. That permit is set forth in the Appendix to this petition.

App. 15a. The Joliet refinery is currently operating under an

NPDES permit issued by the State of Illinois which became effec-

tive on February 9, 1983.

2 See, e.g., App. 4la.

* Mobil did not object to EPA’s sampling of the Joliet refinery’s

discharges at the sampling points specified in Mobil’s NPDES per-

mit. Mobil agrees that EPA has authority to sample at those points.

Thus, this case does not involve any attempt to prevent EPA from

determining whether Mobil was in compliance with the terms of its

NPDES permit. See text pp. 24, 25, infra.

5

parts of the refinery’s operations.* After the EPA rep-

resentatives obtained samples from these points, they

asked to sample wastewater streams and sludges before

final treatment at points which were located inside the

wastewater treatment area of the Joliet refinery.’ Those

points were not designated for sampling in Mobil’s

NPDES permit. EPA’s representatives did not explain

why the Joliet refinery had been chosen for internal

wastewater sampling, nor did they indicate the use to

which the data obtained from that sampling would be

put. Mobil denied the EPA representatives’ request to

take samples of its internal wastewater streams and

sludges because neither section 308 of the CWA nor its

NPDES permit required those streams to be sampled.

Four months later, on August 24, 1982, EPA made an

ex parte application to a federal magistrate for a war-

rant “to enter, inspect and photograph” Mobil’s refinery

and “to take samples of sludge and liquid influents and

effluents of the Mobil Oil Company facility . . . in ac-

cordance with Section 308 of the Clean Water Act, 33

U.S.C. § 1318.” * That provision states, in pertinent part,

that the Administrator or his authorized representative

* Mobil’s NPDES permit required it to sample process wastewater,

sanitary wastewater, non-contact cooling water and storm water “at

a point representative of discharge but prior to mixing with other

effluents.” App. 18a, 20a, 22a, 24a. Since a “discharge” occurs

under the CWA only upon “any addition of any pollutant to naviga-

ble waters from any point source,” 33 U.S.C. § 1862(12) (A) (1976),

the place at which samples “representative of discharge” are taken

is located near the Des Plaines River in order to allow monitoring

of each effluent stream after treatment but before mixing with

other effluent streams.

5 Specifically, the EPA inspectors requested permission to sample

wastewater streams that had not yet entered the aeration basin or

the treated water guard basin located inside the refinery, and

sludge, which is removed from wastewater and is never discharged,

that had not yet been subjected to heat treatment.

* App. 42a.

may “sample any effluents which the owner or operator

of such [point] source is required to sample” under

clause (A) of section 308(a). 33 U.S.C. § 1818(a) (B)

(ii) (1976)." Neither Mobil’s permit, nor EPA’s regula-

tions, required Mobil to perform internal wastewater

sampling.

EPA’s one-page application for a warrant was accom-

panied by affidavits executed by Basim J. Dihu, the EPA

Region V environmental engineer who had been refused

permission to conduct internal wastewater sampling at

the Joliet facility, and Jonathan Barney, another local

EPA employee.* The Dihu affidavit simply recited the

events leading up to Mobil’s refusal to permit EPA’s

representatives to sample internal wastewater streams

and sludges at the Joliet facility.* The Barney affidavit

stated that such sampling was “part of an ongoing ad-

ministrative program to monitor facilities that have some

potential for the discharge of toxic pollutants” and was

intended “to monitor compliance with existing NPDES

permit requirements.” ’® Mr. Barney’s reference to this

monitoring program, however, consisted only of his char-

acterization of it as “extended compliance sampling in-

spections for toxicants (known as CSI-Ts)” which were

designed “to check for compliance with existing effluent

limitations and other permit requirements, and to deter-

mine whether additional toxic pollutants are being dis-

charged that should be limited and otherwise addressed

in the next permit.” '' His affidavit did not describe or

™Clause (A) of section 308(a) authorizes the Administrator

to require the owner or operator of a point source to “sample such

effluents (in accordance with such methods, at such locations, at

such intervals, and in such manner as the Administrator shall pre-

scribe) ... .” 33 U.S.C. §1818(a) (A) (iv) (1976).

5 App. 43a.

* App. 46a.

1° App. 45a.

1 App. 48a-44a.

7

incorporate by reference the administrative plan on which

this alleged program was based. Nor did it articulate

reasons why Mobil’s refinery had been chosen for in-

spection under that program.”

On August 27, 1982, the magistrate issued the warrant

requested by EPA on the basis of his finding that “there

has been a sufficient showing that reasonable legislative

or administrative standards for conducting an inspection

and investigation have been satisfied... .”™

On Monday, August 30, 1982, EPA served the warrant

upon Mobil and began sampling internal wastewater

streams at the Joliet refinery. On the next day, Mobil

filed a motion to quash the warrant which argued, inter

alia, that EPA had failed to meet the standards for prob-

able cause established in Camara v. Municipal Court,

387 U.S. 523 (1967), and Marshall v. Barlow’s, 436 U.S.

307 (1978). On the same day, August 31, 1982, Mobil’s

motion to quash the warrant was denied. EPA’s sam-

pling of internal wastewater streams at the Joliet re-

finery continued until September 2, 1982.

On September 2, 1982, Mobil filed in the District Court

for the Northern District of Illinois an appeal from the

magistrate’s denial of its motion to quash the warrant,

and a complaint which sought injunctive relief against

12 Moreover, the affidavit failed to explain why, after a wait of

four months, the Agency felt compelled to seek an ex parte warrant

rather than to follow the procedures specified in section 309 of the

Clean Water Act which requires the issuance of an administrative

order or a district court action for injunctive relief in the event of

a failure to comply with section 308. 33 U.S.C. § 1819 (1976 & Supp.

V 1981).

‘8 App. 48a. The warrant authorized EPA to “sample and seize”

internal wastewater streams consisting of “combined effluent from

the east and west clarifiers of the activated sludge treatment sys-

tem,” “sludge prior to the heat treatment system,” and “influent to

the east and west aeration basin of the activiated [sic) sludge treat-

ment system (combined raw waste following east equalization basin)

-++” App. 49a.

8

further execution of the warrant and against EPA’s use

of data obtained from the internal wastewater sampling,

and which also requested a declaratory judgment and a

permanent injunction against further sampling at the

Joliet refinery. Jurisdiction of the district court was

invoked pursuant to 28 U.S.C. § 1331 (Supp. V. 1981).

After consolidating these actions, the district court, on

September 7, 1982, issued an order requiring EPA to

retain, and refrain from using for any purpose, the sam-

ples obtained pursuant to the warrant.

Before the district court, Mobil argued that EPA’s

sampling of internal wastewater streams exceeded the

scope of the Agency’s authority under section 308 of the

Clean Water Act and violated Mobil’s rights under the

Fourth Amendment. Rejecting these arguments, the dis-

trict court, on December 28, 1982, issued a final order

and judgment holding that inspection and sampling of

Mobil’s internal wastewater streams were authorized by

a valid warrant and by section 308 of the Act.* On the

same day, the district court granted Mobil’s motion for

a stay pending appeal for a period of twenty days.

On January 10, 1983, Mobil appealed the district

court’s decision to the United States Court of Appeals

for the Seventh Circuit, pursuant to 28 U.S.C. § 1291

(1976 & Supp. V 1981). On the next day, Mobil filed

a motion for stay pending appeal with the Court of Ap-

peals. That court, on January 17, 1983, issued an order

prohibiting EPA from using or transmitting the samples

obtained under the warrant, and from inspecting or sam-

pling Mobil’s wastewater streams in the future at points

other than those specified in the NPDES permit for the

Joliet refinery.

In its appeal to the Seventh Circuit, Mobil argued that

neither section 308 of the CWA nor the NPDES permit

issued for the Joliet refinery authorized EPA to sample

14 App. lla.

9

internal wastewater streams, and that such sampling

was an unreasonable search and seizure of Mobil’s prop-

erty in violation of the Fourth Amendment.” The Court

of Appeals, in an opinion issued on September 14, 1983,

rejected Mobil’s arguments.

Rather than testing the affidavits submitted by EPA

against the standards for demonstrating probable cause

set forth in Barlow’s, the Seventh Circuit engaged in a

balancing of what it viewed as the privacy interests of

Mobil against the government’s interest in sampling in-

ternal wastewater streams at Mobil’s refinery.’* It con-

cluded that Mobil had no interest in preventing internal

sampling of its facility other than “to keep the EPA in

the dark as much as possible about what pollutants are

present in the water it dumps into the Des Plaines River

and about how efficient its treatment processes are at

cleaning its waste water of pollutants.” '’ The Court of

Appeals also found that “[a]ny interest Mobil may have

in frustrating the EPA’s efforts to assess the efficiency

of its treatment processes and to detect trace amounts of

toxic pollutants in waste water it dumps into the Des

Plaines River is not entitled to protection.” ™

18 As noted above, note 3 supra, Mobil did not challenge EPA's

right to conduct discharge sampling at the points specified in Mobil’s

NPDES permit.

16716 F.2d 1190-91, App. 4a. The Court of Appeals in its

opinion never mentioned Camara, Barlow's or this Court’s other

decisions addressing the standards for obtaining ez parte search

warrants by administrative agencies. Indeed, the Seventh Circuit

never even mentioned its own decisions interpreting the probable

cause test set forth in those cases. See note 23, infra.

17716 F.2d at 1190, App. 5a. There was never any allegation by

EPA, or anyone else, during the entire course of this case that

Mobil wanted to “keep EPA in the dark” about its discharges into

the Des Plaines River or about the efficiency of its treatment

processes.

18 Jd., App. 6a.

10

One day after issuance of the Seventh Circuit’s deci-

sion, the Deputy Director of EPA’s Water Division sent

a memorandum to all of the Agency’s regional offices

interpreting that decision as conferring “very broad au-

thority” upon the Agency to sample internal wastewater

streams within an industrial facility.’

Mobil subsequently filed a petition for rehearing and

suggestion for rehearing en banc urging the full Seventh

Circuit to review the panel’s opinion. This petition was

denied on November 8, 1983.”

On November 15, 1983, Mobil petitioned the Court of

Appeals to stay the issuance of its mandate pending

Mobil’s application to this Court for a writ of certiorari.

Two days later, Chief Judge Cummings, author of the

opinion in this case, denied Mobil’s petition for stay of

the mandate “[b]ecause our opinion was clearly right.”

On November 23, 1983, Mobil filed with this Court an

application to stay the mandate of the Seventh Circuit

and to reinstitute the stay entered by that court on Janu-

ary 17, 1983 prohibiting EPA from using or transmitting

the samples obtained under the warrant and from inspect-

ing wastewater streams at points other than those spec-

ified in the NPDES permit. Justice Stevens, acting for

this Court, denied Mobil’s application on November 23,

1983.

REASONS FOR GRANTING CERTIORARI

Certiorari should be granted in this case because the

opinion of the Seventh Circuit directly conflicts with this

Court’s decisions in Marshall v. Barlow’s, 486 U.S. 307

(1978), and Camara v. Municipal Court, 387 U.S. 523

(1967), and with decisions of other circuit courts of ap-

peals which require either evidence of a violation or an

19 App. 5la.

2° App. 14a.

11

articulated administrative plan based on neutral criteria

before finding probable cause for a search and seizure by

an administrative agency. EPA clearly failed to satisfy

these requirements in obtaining the warrant at issue in

this case. However, instead of applying the standards set

forth in Barlow’s to the affidavits EPA submitted to

justify its sampling of Mobil’s internal wastewater

streams, the Seventh Circuit substituted its own “interest-

balancing” analysis in determining the legality of that

sampling. As a result, the Seventh Circuit has effectively

eliminated any requirement that EPA demonstrate prob-

able cause before it obtains warrants to search and seize

the property of those regulated under the Clean Water

Act.

Certiorari should also be granted because this case pre-

sents important questions of law that deserve this Court’s

attention. Thousands of industria] facilities are subject

to regulation under the Clean Water Act. The showing

required of EPA before it can engage in nonconsensual

inspections and sampling of those facilities is of great

concern to those subject to that Act as well as to those

who are subject to other federal environmental statutes.

Particularly as agency activity under those laws moves

into the enforcement stage, there is a compelling need for

this Court to provide more detailed guidance to the lower

courts in the application of the probable cause standards

of Barlow’s. In some instances, the lower courts have

scrupulously required full agency compliance with the

tests for probable cause established by this Court. Other

courts, however, such as the Seventh Circuit in this case,

have upheld the issuance of warrants to administrative

agencies on the basis of nothing more than conclusory,

self-serving affidavits that fail to articulate an adminis-

trative plan on which the desired search is based and fail

to explain how the particular facility is covered by that

plan. The lower courts should not be left free to create

their own interpretations of the Barlow’s standards.

Only a definitive statement from this Court regarding

12

the showing that is necessary to meet those standards

can ensure consistent and proper application of Barlow’s.

Finally, certiorari should be granted in this case of

first impression to correct the erroneous interpretations

by the district court and the Court of Appeals of EPA’s

authority under section 308 of the CWA. The breadth

of EPA’s authority under this section of the CWA is

clearly an important issue of federal law. Neither the

Act nor its legislative history provides any basis for the

sampling of internal wastewater streams carried out by

EPA in this case. Yet with the Seventh Circuit’s opinion

in hand, EPA can now claim probable cause for non-

consensual searches and seizures on the basis of its sup-

posed plenary authority to inspect and seize samples from

anywhere within a facility subject to the Act. That this

is not a hypothetical problem is demonstrated by the

rapidity with which EPA seized upon the Court of Ap-

peal’s decision as justification for a broad program of

internal wastewater sampling.

A. The Decision of the Court of Appeals Conflicts With

This Court’s Decisions in Camara and Barlow’s

This Court held in Camara and Barlow’s that nor-

mally, where consent is not given for a search or seizure

by an administrative agency, the Fourth Amendment

requires the agency to obtain a warrant before proceed-

ing. Camara, 387 U.S. at 528-29; Barlow’s, 436 U.S. at

312-13. The Court also articulated the standards for

demonstrating the probable cause necessary to obtain

such a warrant. Camara, 387 U.S. at 538; Barlow’s, 436

at 320-21.*" Recognizing its obligations under Barlow’s,

21 EPA has acknowledged that, with the possible exception of the

Federal Insecticide, Fungicide, and Rodenticide Act, a warrant is

required for inspections under each of the environmental statutes

administered by the Agency, including the Clean Water Act. Envi-

ronment Reporter (BNA), 41 Federal Laws Index 2451 (April 11.

1979). See also App. 54a.

13

EPA applied for and obtained an ex parte warrant to

perform internal wastewater stream sampling at Mobil’s

Joliet refinery. Yet in reviewing Mobil’s claim that EPA

had not demonstrated probable cause to support issuance

of that warrant, the Seventh Circuit did not examine

EPA’s action in light of the standards set forth in Bar-

low’s.~ Instead, EPA’s failure to demonstrate probable

cause for a warrant to sample Mobil’s internal waste-

water streams was blessed by the Seventh Circuit in an

opinion which effectively eliminates that requirement.

In determining the legality of a search or seizure con-

ducted by an administrative agency pursuant to a war-

rant, other circuit courts of appeals have uniformly tested

the validity of a warrant by the probable cause standards

established by this Court in Barlow’s.** In this case, how-

ever, the Seventh Circuit used its own “interest-balanc-

ing” analysis to determine whether Mobil had any Fourth

Amendment rights which the Court deemed worthy of

protection and whether EPA’s regulatory interest out-

weighed Mobil’s privacy interest. According to the Court

of Appeals, this “interest-balancing” analysis consisted of

identify[ing] what interest Mobil has in preventing

the EPA from sampling untreated waste water, what

22 The district court found that EPA’s inspection and sampling

were authorized by section 308 and consistent with the Fourth

Amendment. 18 Env’t Rep. Cases (BNA) at 3032, App. lla. How-

ever, it did not discuss the basis for these findings.

23 See, e.g., Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st

Cir. 1982); United States v. Mississippi Power & Light Co., 638

F.2d 899 (5th Cir.), cert. denied, 454 U.S. 892 (1981); Stoddard

Lumber Co. Inc. v. Marshall, 627 F.2d 984 (9th Cir. 1980).

Indeed, in the OSHA context, the Seventh Circuit itself has

recognized the applicability of the probable cause standards to

searches by administrative agencies. See Marshall v. Chromalloy

American Corp., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S.

844 (1979); In Re Northwest Airlines, Inc., 587 F.2d 12 (7th

Cir. 1978).

14

interest the EPA has in getting those samples,

and... inquirfing] whether Congress somehow

balanced those interests when it enacted Section 308,

or if not, how Congress would likely have balanced

them had it undertaken to do so.*

The Seventh Circuit’s use of this novel analysis con-

flicts directly with the rule established by this Court in

Camara and Barlow’s, Those cases hold that, unless the

government can prove the application of one of the care-

fully defined exceptions to the warrant requirement,

searches of a commercial establishment without a valid

warrant are per se unreasonable and that the owner’s

privacy interest suffers regardless of his motivation for

forcing the government to obtain a warrant or the gov-

ernment’s purpose for the search or seizure of property.

Barlow’s, 436 U.S. at 312-13. If it is not reversed, the

Seventh Circuit’s decision will establish a standard for

testing the legality of searches and seizures of private

property under the Clean Water Act which conflicts di-

rectly with the prior holdings of this Court and other cir-

cuit courts of appeals.*

Had the Seventh Circuit tested EPA’s actions against

the standards set forth in Camara and Barlow’s, it would

have found that there was no probable cause to support

issuance of the warrant. For a warrant to be valid, an

agency has the burden of demonstrating probable cause.

24716 F.2d at 1189, App. 4a.

25 Moreover, as a means of resolving the intended limits of EPA’s

authority under section 308 of the CWA, the Court of Appeals’ “in-

terest-balancing”’ analysis does not comport with recognized tools of

statutory construction. It does not start with the language of the

statute, employ any of the canons of statutory construction, or con-

sider the legislative history of the provision at issue. Rather, it

hypothesizes the potential interests of each litigant and then seeks

to balance those interests through an analysis Congress never con-

templated, much less sanctioned.

15

Barlow’s, 436 U.S. at 320. In the context of a search

and seizure of property by an administrative agency,

probable cause may be based on either “specific evidence

of an existing violation” or on a showing that “reason-

able legislative or administrative standards for conduct-

ing an... inspection are satisfied with respect to a

particular [establishment].” Jd. at 320-21 (quoting

Camara, 387 U.S. at 538). There is no allegation in the

Barney or Dihu affidavits that Mobil was in violation of

the terms of its NPDES permit.* Nor has EPA con-

tended at any time in this litigation that any such facts

exist. Instead, this was a routine inspection and sam-

pling, for which probable cause can be established only if

EPA’s action was the result of a legislative or “adminis-

trative plan containing specific neutral criteria.” Bar-

low’s, 436 U.S. at 328.

To meet this latter test, EPA must, at a minimum,

satisfy two requirements. First, it must be seeking the

warrant pursuant to an administrative plan containing

neutral criteria which specify “the purpose, frequency,

scope, and manner”’ of conducting sampling. Michigan v.

Tyler, 436 U.S. 499, 507 (1978); Barlow’s, 436 U.S. at

323. Second, the Agency must show why the sampling

of Mobil’s facility fits the neutral criteria of the ad-

ministrative plan or program. Barlow’s, 436 U.S. at 320-

21, 323 n.20. Neither requirement was satisfied in this

case,

As the sole justification for obtaining a warrant, EPA

claimed that samples from Mobil’s treatment processes

and internal wastewater streams were necessary to deter-

mine whether Mobil was in compliance with the terms of

its permit and to determine whether “additional pol-

lutants are being discharged which should be limited .. .

in the next permits.”” The Agency claimed these actions

were being taken pursuant to a “CSI-T” program

for monitoring toxic pollutants. The Barney affidavit,

26 See App. 43a-47a.

16

however, failed to describe the specific toxic pollutants or

particular point source categories covered by the “CSI-T”

program or the method used to select facilities for inclu-

sion in it.27 Nor did the affidavit provide information

about the purpose, frequency, scope, and manner of con-

ducting sampling under the program. Finally, EPA

failed to explain why the Joliet refinery was chosen for

inspection under the CSI-T program when it was already

subjected to annual compliance inspections by the State

of Illinois and self-monitoring and reporting to the State

and EPA under the terms of its NPDES permit.”

Rather, EPA relied solely on the type of “bare assertion”

about the existence of this administrative program held

insufficient in Barlow's.”

In fact, it is clear that EPA’s sampling of Mobil’s in-

ternal wastewater streams was not consistent with or au-

thorized by an administrative plan based on neutral cri-

teria. In response to a Freedom of Information Act re-

27 Barlow's, 436 U.S. at 323 n.20. EPA's failure to provide any

meaningful program description in support of its request for a war-

rant stands in marked contrast to the detailed descriptions of OSHA

programs upheld by several courts of appeals. Donovan v. Wollaston

Alloys, Inc., 695 F.2d 1 (1st Cir. 1982) ; Stoddard Lumber Co., Inc.

v. Marshall, 627 F.2d 984 (9th Cir. 1980); Marshall v. Chromalloy

American Corp., 589 F.2d 1835 (7th Cir.), cert. denied, 444 U.S.

884 (1979). In each of these cases, the affidavits showed that the

Secretary of Labor had established an inspection program concen-

trating on a particular industry, the industry had been selected

based on data about injury rates contained in the Secretary’s files,

and the criteria for selection of the industry were directly related

to the Secretary's statutory responsibility for reducing workplace

hazards. Moreover, at least one circuit required a detailed descrip-

tion of the procedure for systematically selecting the target indus-

tries of an inspection in order to demonstrate the regularity of the

program. Wollaston, 695 F.2d at 3, 5.

28 See App. 20a-21a.

2° 486 U.S. 323 n.20. See In Re Northwest Airlines, Inc., 687 F.2d

12 (7th Cir. 1978). See also, Weyerhaeuser v. Marshall, 592 F.2d

873 (7th Cir. 1979).

17

quest, EPA has released documents which demonstrate

that (1) compliance sampling inspections or “ CSIs”

are for the purpose of determining compliance with

NPDES permit limitations and not for the gathering of

data to determine whether additional effluent limitations

should be imposed in an NPDES permit,” (2) during

compliance sampling inspections, samples are to be taken

at “the facility’s discharge and other NPDES permit-

designated monitoring points’,*' (3) when entry is being

sought for the purpose of gathering data to develop new

effluent limitations guidelines, EPA policy requires a

lengthy affidavit detailing the specifics of the administra-

tive program for which the data are being sought and

why the particular facility has been chosen for that pro-

gram,” and (4) that there is no administrative plan or

program based on neutral criteria for sampling internal

wastewater streams and processes at a facility to gather

data for case-by-case additional NPDES permit limita-

tions.

In short, EPA’s affidavits in support of its applica-

tion for a warrant in this case fall far short of meeting

the Barlow’s test for probable cause. By not only affirm-

ing the district court’s ruling but also by establishing an

erroneous new standard for reviewing EPA searches and

seizures under the CWA, the Seventh Circuit has made

the probable cause requirement of the Fourth Amendment

%* App. 86a-87a.

3) App. 93a.

*2 App. 57a, 77a-85a. Even if EPA had submitted such an affidavit

in support of its request for a warrant in this case, probable cause

would not have been established for an inspection and sampling of

internal wastewater streams and treatment facilities at the Joilet

refinery. To be valid, an administrative plan must be consistent

with the agency's statutory authority. Barlow's, 486 U.S. 8323. As

discussed below, see text pp. 21-27, infra, EPA has no authority

under section 308 of the CWA to engage in nonconsensual sampling

of Mobil’s internal wastewater streams.

18

virtually meaningless when applied to EPA warrant ap-

plications. In the future, magistrates will be asked sim-

ply to rubber-stamp EPA assertions of broad statutory

authority justifying seizures of private property. In or-

der to prevent such a result, this Court should correct the

Seventh Circuit’s error.

B. This Case Presents Important Questions of Law That

Deserve Attention By This Court

The constitutional and statutory issues presented by

this case deserve this Court’s prompt attention. The

Clean Water Act is one of the most significant environ-

mental statutes enacted during the past decade. Virtually

all of American industry is subject to its requirements.

Given the alacrity and expansiveness of EPA’s response

to the Seventh Circuit’s decision, the Agency clearly in-

tends to take full advantage of it. The memorandum

issued by EPA the day after the Seventh Circuit’s deci-

sion assumes the Agency has a carte blanche to engage in

inspection and internal sampling of facilities subject to

the CWA. If left undisturbed, the Seventh Circuit’s deci-

sion not only will result in searches and seizures that are

unauthorized by section 308, but also in warrants based

on Agency assertions of virtually unbridled discretion

under the Clean Water Act to inspect and seize private

property of America’s corporate citizens.

The march of intrusive agency sampling will not stop

with the Clean Water Act. It is reasonable to expect that

the authority claimed by EPA for in-plant sampling will

be extended to the other major enviromental statutes

implemented by that Agency. There is, for example, a

pronounced similarity between the sampling authority

granted by section 308 of the Clean Water Act and that

granted by section 114 of the Clean Air Act, 42 U.S.C.

§ 7414 (Supp. V 1981).* Where the statutory limitations

33 EPA has shown no hesitancy to stretch its inspection authority

under section 114 of the Clean Air Act to its full limits and

19

on sampling are less strict,** EPA will likely see no legal

restraint at all upon its seizure of in-plant samples.

Thus, the decision of the Seventh Circuit in this case

points the way for a repetitive series of unconstitutional

searches and seizures under many of the major environ-

mental statutes.

Because of the pervasiveness of the federal environ-

mental laws and the likelihood that EPA will engage in

the future in numerous inspections and sampling of fa-

cilities that are subject to their provisions, this Court

should provide clear guidance to the lower courts on the

application of Barlow’s probable cause requirement to

such inspections and sampling. For the most part, the

environmental statutes have now been implemented

through promulgation of substantive standards, and the

regulatory effort will naturally turn to the enforcement

of these standards through inspections and sampling of

regulated facilities. Without a clearer explanation of the

Barlow’s probable cause standard than this Court has

provided to date, the lower courts may acquiesce in in-

trusive and unjustified enforcement of this federal legis-

lation at the expense of the constitutional rights of those

subject to its reach.

The likelihood of such an occurrence is underscored by

the fact that the lower courts, in the OSHA context, have

demonstrated substantial variance in their application of

what has been termed the “extremely vague” standard

set forth in Barlow’s.* For example, the First and Ninth

Circuits have scrutinized warrant applications and sup-

beyond. Dow Chemical Co. v. EPA, 536 F. Supp. 1355 (E.D. Mich.

1982) (use of surreptitious aerial photography to probe internal

processes of chemical plant found unauthorized under section 114).

34 See Resource Conservation and Recovery Aci, 42 U.S.C.

§ 6927(a) (1) (Supp. V 1981); Comprehensive Environmental Re-

sponse, Compensation, and Liability of Act of 1980, 42 U.S.C.

§ 9604(e)(1)(B) (Supp. V 1981).

85 See Rothstein. OSHA Inspections After Marshall v. Barlow’s,

Inc., 1979 Duke L.J. 68, 90.

20

porting affidavits for detailed information on how tar-

get industries were selected for inspection under an ad-

ministrative plan, while the Third and Sixth Circuits

have not even looked to see whether there was an admin-

istrative plan or any specific neutral criteria but have

instead based their finding of probable cause solely on the

agency’s assertion that the premises had never been

searched before. Compare Donovan v. Wollaston Alloys,

Inc., 695 F.2d 1, 5 (1st Cir. 1982), and Stoddard Lumber

Co., Inc. v. Marshall, 627 F.2d 984, 988 (9th Cir. 1980),

with United States v. Prendergast, 585 F.2d 69, 70 (3d

Cir. 1978), and United States v. Voorhies, 663 F.2d 30,

33 (6th Cir. 1981), cert. denied, 456 U.S. 929 (1982) .*

Moreover, while the First and Ninth Circuits have relied

on conclusory assertions in assessing whether an agency

has adequately shown that a particular company meets

the criteria specified in a valid administrative plan, the

Eleventh and Seventh Circuits have required the agency

to demonstrate, based on specific facts about a particular

facility, that it satisfies each of the neutral criteria of

the administrative plan. Compare Wollaston, 695 F.2d at

6 and Stoddard Lumber, 627 F.2d at 988, with First Ala-

bama Bank of Montgomery v. Donovan, 692 F.2d 714,

716-17, 721-22 (11th Cir. 1982), and Jn Re Matter of

Northwest Airlines, 587 F.2d 12, 15 (7th Cir. 1978).

In sum, the conclusory nature of EPA’s affidavits and

the lower courts’ rubber-stamping of EPA’s warrant ap-

plication demonstrate the need for this Court to articulate

more clearly the probable cause requirement of Barlow’s

in order to prevent agencies in the future from obtaining

36 Despite their general agreement that an agency must be re-

quired to substantiate its decision to inspect certain industries, the

Ninth Circuit has relied upon statistical evidence establishing a

specific threshold for inclusion of a particular industry within an

administrative program, while the First Circuit has not. Compare

Stoddard Lumber, 627 F.2d at 988, with Wollaston, 695 F.2d at 6.

21

warrants predicated on self-serving but baseless asser-

tions such as those made by EPA in this case.

C. The Seventh Circuit’s Erroneous Interpretation of

Section 308 of the CWA Raises a Question of First

Impression And Substantial Federal Importance

It is axiomatic that EPA may only engage in inspec-

tions and sampling authorized by statute, and that the

scope and purposes of an administrative plan for such ac-

tivities must be consistent with the scope and purposes

of that authority. See Barlow’s, 436 U.S. at 323. In this

case, the Seventh Circuit upheld sampling of Mobil’s in-

ternal wastewater streams by EPA which clearly exceeded

the Agency’s statutory authority. By conferring virtu-

ally unbridled discretion upon EPA to inspect and seize

private property, the Court of Appeals has lowered the

threshold for EPA demonstrations of probable cause to a

level that all but eliminates that requirement.”

Any analysis of EPA’s authority to engage in internal

sampling of a facility must begin with the language of

the statute. EPA v. National Crushed Stone Ass’n, 449

U.S. 64, 73-74 (1980). Unlike the sampling authority

conferred upon EPA in some other environmental stat-

utes,** EPA’s authority under the Clean Water Act to in-

spect and sample wastewater streams at industrial facili-

ties is limited to those “efflwents which the owner or

operator of such source is required to sample.”* Al-

though the term “effluent” is not specifically defined in

37 If magistrates believe that EPA has virtually limitless author-

ity under section 308 to enter and sample the internal wastewater

streams of industrial dischargers as the Seventh Circuit has held,

they can be expected to provide little check on arbitrary EPA in-

spections in the future.

88 See note 34, supra.

8° 33 U.S.C. § 1818(a) (B) (ii) (1976) (emphasis added).

22

the CWA, the Act does define the term “effluent limita-

tion.” *° Read in conjunction with the definitions of

“point source” *' and “discharge of a pollutant,” *? an ef-

fluent limitation means a restriction upon the discharge

of pollutants from a discrete and confined conveyance to

navigable waters. To read the term “effluent” as used in

section 308 harmoniously with the remainder of the Act,

effluent must be defined as material which is discharged

from a discrete and confined conveyance to navigable

waters.**

4° Section 502(11) provides:

The term “effluent limitation” means any restriction estab-

lished by a State or the Administrator on quantities, rates, and

concentrations of chemical, physical, biological, and other con-

stituents which are discharged from point sources into naviga-

ble waters, the waters of the contiguous zone, or the ocean,

including schedules of compliance.

33 U.S.C. § 1362(11) (1976).

4! Section 502(14) provides:

The term “point source’ means any discernible, confined and

discrete conveyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated anima! feeding operation, or vessel or

other floating craft, from which pollutants are or may be dis-

charged. This term does not include return flows from irri-

gated agriculture.

83 U.S.C. § 1362(14) (Supp. V 1981).

«2 Section 502(12) provides:

The term “discharge of a pollutant” and the term “discharge

of pollutants” each means (A) any addition of any pollutant

to navigable waters from any point source, (B) any addition

of any pollutant to the waters of the contiguous zone or the

ocean from any point source other than a vessel or other float-

ing craft.

33 U.S.C. § 1862(12) (1976).

43 See The Environmental Policy Division of the Congressional Re-

search Service of the Library of Congress, A Legislative History

of the Water Pollution Control Act Amendments of 1972, at 800-01,

1274, 1304, 1494-95 (1973).

28

Moreover, even if the term “effluents” contained in sec-

tion 308(a)(B) (ii) can be read to encompass, in limited

circumstances, internal wastewater streams, the addi-

tional restriction contained in section 308(a) (B) (ii)

makes plain that EPA had no authority to engage in such

sampling here. Under that section, EPA is empowered to

sample only those effluents “the owner or operator is re-

quired to sample.” itut Mobil has never been “required”

to sample its internal wastewater streams. EPA has not

acted pursuant to section 308(a) (A) to prescribe by rule

internal sampling for point sources such as Mobil’s petro-

leum refinery.** Moreover, the Illinois NPDES program,

4 Section 308(a) (A) provides:

(A) the Administrator shal] require the owner or operator of

any point source to... (iii) install, use and maintain such

monitoring equipment or methods (including where appropri-

ate, biological monitoring methods), (iv) sample such effluents

(in accordance with such methods, at such locations, at such

intervals, and in such manner as the Administrator shall pre-

scribe), and (v) provide such other information as he may

reasonably require.

33 U.S.C. § 1818(a) (A) (1976).

EPA has promulgated regulations to implement this statutory

authority at 40 C.F.R. § 122.44(i) (1983). Under these regulations,

sampling of internal wastewater streams is only required of an

owner or operator if an effluent limitation is imposed on an internal

wastewater stream, 40 C.F.R. § 122.44(i) (1) (iii) (1983), and such

an effluent limitation can only be imposed under certain specified

“exceptional circumstances.” 40 C.F.R. § 122.45(i)(2) (1983).

Mobil’s permit does not contain any limitations on internal waste-

water streams, and thus the Agency is without authority under the

CWA or its implementing regulations to sample Mobil’s internal

wastewater streams.

In fact, EPA's authority to impose any restrictions at all on in-

ternal wastewater streams is not settled. Because the imposition

of effluent limitations on internal wastewater streams conflicts with

the statutory definition in section 502(11) of the CWA, EPA’s au-

thority to provide for even the limited exception set forth in 40

C.F.R. § 122.45(i) (2) was challenged in a consolidated action en-

titled Natural Resources Defense Council, Inc. v. EPA, No. 80-1607,

in the United States Court of Appeals for the District of Columbia

24

which has been approved by EPA as satisfying the sam-

pling requirements of section 308,*° does not provide for

internal wastewater stream sampling. As a consequence,

Illinois issued an NPDES permit to Mobil, without objec-

tion from EPA, which only required sampling “at a point

representative of discharge.” That point occurs only after

all treatment of Mobil’s wastewater has been completed.*

Thus, the plain meaning of section 308, read in conjunc-

tion with both EPA’s and Illinois’ implementation of the

Act, limits EPA’s sampling at Mobil’s refinery to points

representative of discharge subsequent to all treatment

activities. And this reading of section 308 provides EPA

and the states ample ability to ensure compliance by

dischargers with the terms of their NPDES permits. As

a result, EPA’s attempt to sample wastewater streams

and sludges before final treatment at points which were

located inside the wastewater treatment portions of the

Joliet refinery clearly exceeded the Agency’s statutory

authority.

Moreover, the sampling of internal wastewater streams

and sludges at Mobil’s refinery did not serve any of the

purposes set forth in section 308 and recited in the

Barney affidavit. The Barney affidavit attempts to justify

the seizure of internal wastewater stream samples from

Mobil’s refinery by claiming the sampling data was neces-

sary to determine compliance with permit terms and to

ascertain whether additional discharge limitations should

Circuit. Mobil was one of the many petitioners in that proceeding

in which over fifty issues were raised. EPA, however, chose not to

litigate this issue, among others, and a stipulation was entered

stating that the issue was not ripe for litigation at that time and

would be reserved for litigation at some later date.

45 Before the Illinois program could have been approved, the Ad-

ministrator of EPA was required to determine that the program

contained adequate authority to ensure compliance with all applica-

ble requirements of section 308. 83 U.S.C. 1342(b) (2) (1976).

46 See text pp. 4-5 & note 4, supra.

25

be incorporated into Mobil’s NPDES permit. In fact,

however, it is clear that EPA can determine, and indeed

in the past has determined, whether Mobil is in com-

pliance with its NPDES permit by sampling Mobil’s dis-

charges at the points specified jn that permit. It is

equally clear that EPA could not use the data it obtained

by sampling Mobil’s internal wastewater streams to write

new permit limits for the Joliet refinery or other petro-

leum refineries.

As discussed above, Mobil’s permit requires it to sam-

ple its wastewater streams at points representative of

their discharge to navigable waters. The Illinois Envi-

ronmental Protection Agency, which issued Mobil’s

NPDES permit and has primary enforcement responsi-

bility to monitor compliance with that permit’s terms,

also samples for compliance at those points. Based on

its own sampling of the Joliet refinery, Illinois has con-

sistently found Mobil’s discharges to be in conformance

with its permit.*? And Illinois has never found it neces-

sary to sample Mobil’s internal wastewater streams to

determine the facility’s compliance status. Nor has EPA

ever found such sampling necessary to determine com-

pliance until the incident which is the subject of this

ease.** Against this background, it is clear that the first

justification advanced by Mr. Barney in his affidavit was

totally without basis.

Similarly, there is no basis for Mr. Barney’s claim

that the internal wastewater stream data were needed

‘7 Tllinois sampled Mobil’s discharges at the points specified in

Mobil’s permit during the April 1982 inspection at which EPA was

denied permission to sample Mobil’s internal wastewater streams.

Based on its sampling, the State determined that Mobil was in full

compliance with the terms of its permit. App. 4la.

48 Indeed, EPA’s own documents demonstrate that compliance

inspection sampling is to be performed “at the facility’s discharge

and other NPDES permit-designated monitoring points.” App. 93a.

26

for the purpose of developing additional effluent limita-

tions for Mobil’s permit. EPA can impose technology

based limits in NPDES permits only if they are required

by existing effluent limitations guidelines regulations,‘

or if they are developed pursuant to the Agency’s as-

serted authority to establish case-by-case limits under

section 402(a)(1) of the CWA. EPA’s nationally ap-

plicable BAT limitations and new source standards for

the petroleum refinery point source category, which were

promulgated on October 18, 1982,’ had already been

proposed and the rulemaking record closed substantially

before EPA’s internal sampling of the Joliet refinery

took place."* Thus the data obtained by EPA from Mobil

could not be used for that rulemaking proceeding.

49 Among other things, NPDES permits require point sources to

comply with the applicable effluent limitations or new source per-

formance standards established by rule under sections 301 and 306

of the Act, 33 U.S.C. §§ 1311, 13816 (1976 & Supp. V 1981), for cate-

gories of similar point sources. 33 U.S.C. § 1342(a)(1) (1976).

See EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 71 (1980);

E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 121 (1977).

Effluent limitations promulgated under section 301(b) must require

the application of the best practicable control technology currently

available by July 1, 1977, and the application of the best available

technology economically achievable (BAT) by July 1, 1983, 33

U.S.C. §1811(b) (1976 & Supp. V 1981), while those promulgated

under section 306 require new sources to comply with best available

demonstrated control technology at the time they commence dis-

charging. 33 U.S.C. § 1816(a) (1) (1976).

5° Section 402(a)(1) of the CWA authorizes inclusion in an

NPDES permit of “such conditions as the Administrator deter-

mines are necessary to carry out the provisions of this chapter,” but

only when the Administrator retains the authority to issue NPDES

permits and does not delegate that power to the state. 33 U.S.C.

§ 13842(a) (1) (1976).

51 47 Fed. Reg. 46434 (1982).

52 EPA gave no indication during the course of its effluent guide-

lines rulemaking for the oil refinery industry that it was sampling

Mobil’s facility for the purpose of obtaining data for use in that

proceeding.

27

Moreover, since it is Illinois, not EPA, which issued

Mobil’s permit, EPA had no authority under section

402(a) (1) of the Act to impose additional limitations in

that permit. EPA claims limited authority in its regu-

lations to establish case-by-case effluent limitations for

pollutants that are not controlled under applicable efflu-

ent limitations guidelines regulations.*’ However, by its

terms, this regulation allows EPA to establish such limi-

tations only in federally issued permits.** Thus, neither

of the purposes alleged by Mr. Barney justified the sam-

pling of internal wastewater streams at Mobil’s refinery.

It is, therefore, clear that EPA had no authority un-

der section 308 to engage in sampling of Mobil’s internal

wastewater streams. Since the Agency had no statutory

authority to engage in such sampling, there could have

been no probable cause for issuance of the warrant in

this case.

58 See 40 C.F.R. § 125.3 (1983).

4 Td.

28

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari to review the opinion of the United States

Court of Appeals for the Seventh Circuit entered in this

proceeding on September 14, 1983 should be granted.

Of Counsel

DAVID EDWARD NOVITSKI

Mobil Oil Corporation

3225 Gallows Road

Fairfax, Virginia 22037

SUSAN R. CSIA

ARTHUR G. HOFMANN

Mobil Oil Corporation

600 Woodfield Drive

Schaumburg, Illinois 60196

THOMAS D. ALLEN

WILDMAN, HARROLD, ALLEN

& DIXON

One IBM Plaza

Chicago, Illinois 60611

February 6, 1984

Respectfully submitted,

JOHN J. ADAMS

MICHAEL B. BARR

(Counsel of Record)

MARK G. WEISSHAAR

CHARLES D. OSSOLA

HUNTON & WILLIAMS

P.O. Box 19230

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20036

202/955-1500

Counsel for Petitioner

Mobil Oil Corporation

lb

CORPORATE LISTING

Mobil Oil Corporation is a wholly owned subsidiary of

Mobil Corporation which is publicly held. Listed below

are the affiliates and subsidiaries of Mobil Corporation,

Mobil Oil Corporation, and their affiliates and subsidiaries

which are or may be publicly held. Only companies in

which a five percent (5% )or greater interest is held are

listed.

NAME OF COMPANY

AB Djurgardsberg

Abu Dhabi Petroleum Company Limited

Adria-Wien Pipeline Gesellschaft m.b.H.

AIMCO (ALPHA) Shipping Company

AIMCO (Blasbjerg) Limited

AIMCO (OMEGA) Shipping Company Ltd.

Aircraft Fuel Supply B.V.

Airtankdienst Koln

AK Chemie GmbH

AK Chemie GmbH & Co. KG

Akauma Rekisei Kogyo Kabushiki Kaisha

Alexandroupolis Petroleum Installation S.A.

Allied Asphalts Limited

Alpa Alet Ve Dayanikli Tuketim Mamulleri Pazarlama

AS.

Altona Petrochemical Company Limited

Alyeska Pipeline Service Company

Ankara Gaz Satis Anonim Sirketi

Arabian American Oil Company

Arabian International Maritime Company Limited

Arabian International Maritime Company

The Arabian Petroleum Supply Company (S.A.)

Arabian Shipping & Trading Company S.A.

Arabian Trading Company S.A.

Aral Aktiengesellschaft

A/S Fijelivegen

A/S Kongena Plass I

2b

A/S Moretral

Ammenn GmbH

The Associated Octel Company Limited

Associated Octel Company (Plant) Limited

ATAS-Anadolu Tasfiyehanesi Anonim Sirketi

Atlas Sahara S.A.

Australian Synthetic Rubber Company Limited

Autobahn-Betriebe Gesellschaft m.b.H.

Aviation Fuel Services Limited

Aygaz Anonim Sirketi

B.V. Beheersmaatschappij MOBEM

Baarah Petroleum Company Limited

Bataan Refining Corporation

Bayerischa Erdgasleitung GmbH

Bin Sulaiman Mobil Towers

Bayerische Mineral Industrie A.G.

Bostadsrattsforeningen Basunan, Malmo

Bostadsrattsforeningen Forarsetet, Orby

Bostadsrattsforeningen Silverskatten, Trelleborg

Bostadsrattsforeningen Skepparegarden, Norrkoping

Braamkey Investments (Proprietary) Limited

Brazos Heights Housing Incorporated

Brussels Airfuels Service S.C.

Buffalo River Improvement Corporation

Canner’s Stem Company, Incorporated

Cansulex Limited

Canyon Reef Carriers, Inc.

Cartoenvases Valencia, S.A.

Carton de Colombia, S.A.

Carton de Venezuela, S.A.

Cartones Nationales, S.A.

Celmisia Shipping Corporation

Celulosa y Papel de Colombia, S.A.

Central African Petroleum Refineries (Pvt) Limited

Central Kagaku Kabushiki Kaisha

Cercera S.A.

Changi Airport Fuel Hydrant Installation Pte. Ltd.

Chuo Nenryo Gas Kabushiki Kaisha

3b

Colombianos Distribuidores de Combustibles, S.A.

(CODI)

Colonial Pipeline Company

Combustibles Colmerauer

Comet-Brennstoffdienst GmbH

Commodore Maritime Company, S.A.

Compagnie Africaine de Transport Cameroun

Compaignie D’FEntreposage Communautaire

Compagnie Immobiliera (Comimmo)

Compagnie Regionale de Distribution de Produits

Petroliers-C.0.R.E. Dis.

Compagnie Rhenane de Raffinage

Compagnie Senegalaise des Lubrifiants (C.S.L.)

Compania Colombiana de Empaques Bates, SSA

Compania Colombiana De Forestacion S.A.

Compania de Lubricants de Chile Limitada

(Copec-Mobil Ltda.)

Compania Mexicana de Especialidades Industriales, S.A.,

de C.V.

Consortium Raymond Duez

Constructura Calle 67, Limitada

Constructora Calle 70, S.A.

Cook Inlet Pipe Line Company

CORCOP

Corrugadora de Carton, S.A.

C.R.C. Lyon Chauffage

CRCP

Cyprus Petroleum Refinery Limited

D. Muhlenbruch GmbH

D. Muhlenbruch GmbH & Co., KG

Dai Nippon Juski K.K.

Dearborn Land Company

De. Ha.—Industria Petrolifero

Depot Petrolier de Mourepiane

Depot Petrolier du Gresivaudan

Depot de Petrole Cotiers

Depots Petroliers de La Corse (DPLC)

Duetche Mobil Oil Exploration Ireland Ltd.

Deutsche Pentosin- Werke GmbH

4b

Deutsche Transalpine Oelleitung GmbH

Dicomi S8.r.].

Dixie Pipeline Company

Drivmedelscentralen AB

Dukhan Services Company

East Japan Oil Development Company Ltd.

Eastern Lease Company Ltd.

East Texas Salt Water Disposal Company

Emoleum (Asphalts) Limited

Entrepot Petrolier de Chambery

Entrepot Petrolier de Dijon

Entrepot Petrolier de Mulhouse (E.P.M.)

Entrepot Petrolier de Nancy

Entreprise Jean Lefebvre

Erdgas-Varkaufs-Gesellschaft mbH

Erdoel-Lagergesellschaft mbH

Erdoel-Raffinerie Neustradt GmbH & Co., oHG

Erdoelbetrieb Reitbrook

Erdoelraffinerie Gesellschaft mbH in Liquidation

Establissements Bouthenet

Establissements Nicol and Cie

Ets. Le Goff

Ets. R. Saillard

Establissements Wagner

Faavang Autoverksted A/S

FACEL

Fairwind Maritime Company, S.A.

Felix Oil Company

Fibil, S.A.

Fibras Internacionales de Puerto Rico, Inc.

Filtroleo-Soviedade Portuguesa de Filtres Ida.

Filtroes De Costa Rica S.A.

Finsbury Printing Limited

First Eastleigh No. 163 (Proprietary) Limited

Fountain Garage (East Park) Ltd.

Fountain Garage (Meadowhead) Ltd.

Fountain Garage (Mercury) Ltd.

5b

Fountain Garage (Newbury Park) Ltd.

Fountain Garage (Stirchley) Ltd.

Frome-Broken Hill Company Proprietary Limited

Fruehmesser Mineraloelhandels GmbH & Co. KG

Fruehmesser GmbH

Guso Operations Kabushiki Kaisha

Futuro Enterprises (Christchurch) Ltd.

Futuro Homes (N.Z.) Ltd.

Gaz Aletleri Anonim Sirketi

Geomines-Caen

Geovexin

Ghana Bunkering Services Limited

Goteborge Banslesortering AB

Groupement Immobilier Petrolier G.I.P.

Groupement Petrolier Aviation G.P.A.

Groupement Petrolier De Breat (GPB)

Handelmaatschappij Hugenholtz & Co. B.V.

H. van der Heijden Service Stations B.V.

Heizoel-Handelsgesellschaft mbH

Hallas Gas Storage Company S.A.

Home Counties Petroleum Products Limited

Hormez Petroleum Company

Hydranten-Betriebs-Gasellschaft, Flughafen Frankfurt

Imperial Gas Co. of P.R., Inc.

Inmunizadoras Unidas, S.A.

Industria Da Carbon Del Valle Cauca, S.A.

Iranian Oil Participants Limited

Iranian Oil Services (Holdings) Limited

Iranian Oil Services Limited

Iraq Petroleum Company, Limited

Iraq Petroleum Pensions Limited

Iraq Petroleum Transport Company Limited

Istanbul Petrol ve Makine Yaglari Limited Sirkati

Japan Airport Fueling Service Co. Limited

Japan Solar Energy Co., Ltd.

J.E.C.0.P.

K. D. Keysers Investments (Proprietary) Limited

K.K. Sankyo Plastics

6b

K.K. Toresen

Kanto Kygnus Sekiyu Hambai K.K.

Kanto Oil Pipeline Co., Ltd.

Kawasaki Kygnus Sekiyu Sambai Kabushiki Kaisha

Keihin Kygnus Sekiyu Hambai Kabushiki Kaisha

Kaiyo Sea-Berth Company, Ltd.

Kettleman North Dome Association

Klaus Koehn GmbH

Klaus Koehn GmbH & Co. Mineraloel KG

Koba Port Service Kabushiki Kaisha

Kurt Ammenn GmbH & Co. K.G.

Kygnus Ekika Gas Kabushiki Kaisha

Kygnus Kosan Kabushiki Kaisha

Kygnus Sakiyu Kabushiki Kaisha

Kyokyto Petroleum Overseas, Ltd.

Kyokyto Sekiyu Kogyo Kabushiki Kaisha

Las Nouveaux Comptoirs Petroliers

Les Supermarches De Cote D’Ivoire

Likit Petrol Gazi ve Yakit Ticaret A.S.

Loba Chemie Gesellschaft mbh

Lubricantes del Sur, S.A.

Marceaux & Cie

Matco Tankers (U.K.) Limited

Maury Manufacturing Company, Inc.

Mediterranean Refining Company

Meentzen & Franke GmbH & Co.

Mobil Ami, S.A.

‘Mobil Atlas Sociedad Anonima de Capital Variable

Mobil Chemie Belgie N.V. (Mobil Chimie Belge S.A.)

Mobil Comercio, Industria & Services Ltda.

Mobil Gaz-Mobil Petrol Gazlari Anonim Sirketi

Mobil Korea Lube Oil Industries Inc.

Mobil Motor Rest AG

Mobil Nile Oil Company

Mobil Oil Cameroun

Mobil Oil Cote d-Ivoire

Mobil Oil Dahomey

Mobil Oil de Mexico, Sociedad Anonima

7b

Mobil Oil Djibouti, S.A.

Mobil Oil Francaise

Mobil Oil Gabon

Mobil Oil Ghana Limited

Mobil Oil Haute Volta

Mobil Oil Holdings, S.A.

Mobil Oil Mali

Mobil Oil Maroc

Mobil Oil Mauritania

Mobil Oil Niger

Mobil Oil Nigeria Limited

Mobil Oil Nord-Africaine

Mobil Oil Phillippines Inc.

Mobil Oil Portuguesa, S.A.R.L.

Mobil Oil Rwanda-Burundi (S.A.R.L.)

Mobil Oil Senegal

Mobil Oil Tchad

Mobil Oil Togo

Mobilrex

Mobil Tunisie

Molinos de Carton y Papel, S.A.

Morem

Mosul Petroleum Company Limited

Motel Rest SA

Mt. Marrow Blue Metal Quarries Pty.

Ndola Oil Storage Company Limited

Near East Development Corporation

New Zealand Refining Company Limited, The

New Zealand Synthetic Fuels Corp. Ltd.

New Zealand Synthetic Fuels (Housing) Corporation

Limited

Nichimo Oil (Bermuda) Co., Ltd.

Nichimo Sekiyu Seisei Kabushiki Kaisha

Nippon Unicar Company Limited

Norddeutsche Erdgas-Aufbereitungs GmbH

Nordic Storage Company Ltd.

Nottingham Gas Limited

N.V. Rotterdam-Rijn Pijpleiding Maatschappij

8b

N.V. Socony-Standard-Vacuum Oil Company

Occidental de Empaques, Ltda.

Octel Associates

Oil Kol (Proprietary) Limited

Oil Service Company of Iran (Private Company)

Oldenburgische Erdoel Gesellschaft mit beschrankter

Haftung

Olympic Pipe Line Company

Osage Pipe Line Company

P.T. Arun Natural Gas Liquefaction Company

P.T. Stanvac Indonesia

Paloma Pipe Line Company

Pars Investment Corporation

Pembalta Gas System No. 1 Ltd.

Pembalta Gas System No. 3 Ltd.

Pembalta Gas System No. 4 Ltd.

Pembalta Gas System No. 5 Ltd.

Pembalta Gas System No. 6 Ltd.

Perretti Petroli S.p.A.

Petrocab

Petrogas Processing Ltd.

Petroleum Development (Cyprus) Limited

Petroleum Refineries (Australia) Proprietary Limited

Petroleum Services (Middle East) Limited

Petroleum Tankship Company Inc.

Petromin Lubricating Oi] Company

Petromin-Mobil Yanbu Refinery Company Ltd.

Pip Line Banal de La Goulette

Flagadizos para la Industria S.A.

Poly Oil Chimie (P.O.C.)

Prespak (Proprietary) Limited

Qatar Petroleum Company Limited

Qualbank, Inc.

Rainbow Pipe Line Company, Ltd.

Randhurst Corporation

Reforestadora Andina, S.A.

Reforestadora del Cauca, S.A.

Rhodes Petroleum Installation S.A.

9b

Rivere Court Estates, Limited

Rohel-Aufsuchunga Gasellschaft mbH

Ruhrgas Aktiengesellschaft

S&M Pipeline Limited

S. A. Ets. Georga DUBOIS

S. A. Mas & Cie

S.A.M. Lebreton

Samarco (Alpha) Shipping Company

Samarco (Beta) Shipping Company

Sanwa Kasei Kogyo Kabuskiki Kaisha

SARL Garage Pineau

Sarni S.p.A.

Saudi Arabian Maritime Company

Saudi Can Company, Ltd., The

Saudi Chemical Industries Company Limited

Saudi Maritime Company Ltd.

Saudi Tankers Limited

Saudi Yanbu Petrochemical Company

Schubert Kommanditgesellschaft

S.C.I. Du Fonds Du Val

Segher de Mexico, S.A. de C.V.

Seibu Kygous Sekiyu Hambai Kabushiki Kaisha

SENERCO

Seram Societa per Azioni (S.p.A.)

Sierra Leone Petroleum Refining Company Limited, The

R. Simonnet & CIR

Societdade Portugal Marrocos SARL

Societa Iatliana per l’Oleodette Transalpino, S.p.A.

Societe Africaine de Raffinage

Societe Agicole Des Entreprises Petroliares (S.A.D.E.P.)

Societe Alfred Ott & Cie

Societe Belge de Transport par Pipeline S.A.

Societe Camerounaise des Depots Petroliers (S.C.D.P.)

Societe Camerounaise Equatoriala De Fabrication De

Lubrifiants “S.C.E.F.L.”

Societe Civile de Mustapha

Societa Civile Immobiliere Courselles-Etoile

10b

Societe Civile Immobiliere de Construction de 34 Avenue

de General Leclerc a Boisay-St-Leger

Societe Civile Immobiliere de Construction ‘‘La Residence

Brune”

Societe Civile Immobiliere de 10 Bd. de la Republique A

La Garenne-Colombes

Societe Civile Immobiliere Klaber-Etoile

Societa Civile Immobiliere La Fontaine Sait Lucien

Societe Civile Immobiliere Mobil

Societe Dahomeenne d’Entraposage de Produits Petroliers

Societe d’Armement Fluvial et Maritime “SOFLUMAR”

Societe de Construction & de Gastion CB 12

Societe de Distribution Gastelroussine (SODICA)

Societe de Gaz D’Oceanic ‘SOGADOC)

Societe de Manutention de Carburants Aviation

(S.M.C.A.)

Societe de Manutention de Carburants Aviation

Dakar-Yoff

Societe de Manutention de Carburants Aviation de Tahiti

(SOMCAT)

Societe de Maperialx d’Etancheite Pour Le Entreprises

(Maple)

Societe d’Entreposage de Bobo-Dioulasso (S.E.B.)

Societe d’Entreposage d’Hydrocarbures de Bingo

(SEHBI)

Societe d’Entreposage de San Pedro (SESP)

Societe d’Entreposage Petrolier au Burundi

Societe de Renovation D’Embaliage Metalliques (REM)

Societe d’Habitations a Loyer Modere de al Seine

Maritime

Societe des Bitumes at Cut-Backs du Cameroun

Societe des Establissements Goux

Societe Des Huiles Lemahieu

Societe de Pipe-Line Sud-European

Societe Francaise Stoner-Mudge

Societe Gabonaise d’Entreposage de Produits Petroliers

Societe Gobanaise‘de Raffinage

11b

Societe Industrielle des Asphaltes at Petroles de Lataquie

(Syria) S.A.

Societe Jean Roussel S.A.

Societe Ivoirienne de Fabrication de Lubrifiante

(S.L.F.A.L.)

Societe Ivoirienne de Raffinage

Societe Mauritanienne d’Entreposage de Produits

Petroliers

Societe Nationale de Raffinage (Sonara)

Societe Nouvelle Raffinerie Meridionale De Ceresines

(RMC)

Societe Novodis

Societe Pizo De Formulation De Lubrifiants (PIZOLUB)

Societe Regionale De Produits Petroliers

Societe Regionale de Produits Energetiques

Societe Rahitienne de Depota Petroliers

Societe Tchadienne D’Entreposage de Produits Petroliers

Societe Togolaise d’Entreposage (STE)

SOMODIP

Sonarep (South Africa) (Proprietary) Limited

SONEX

South African Oil Refinery (Proprietary) Limited

South Saskatchewan Pipe Line Company

South West Africa Road Binders (Proprietary) Limited

Statfjord Transport A.S.

Station-Service Lunas

Sydney Metropolitan Pipeline Pty. Ltd.

Syria Petroleum Company Limited

T.R. Miller Mill Company, Inc.

Tanklagergeselischaft Koln-Bonn

Tecklenburg GmbH

Tecklenburg GmbH & Co. Energiebedarf K.G.

Texoma Pipe Line Company

Thailand Lubricant Products, Limited

Thailand Solvent Products, Ltd.

Thums Long Beach Company

Toa Manryo Kogyo Kabushiki Kaisha

Tohko Plastics Co., Ltd.

12b

Tonen Energy International Corp.

Tonen Sekiyu Kagaku Kabushiki Kaisha

Tonen Kanker Kabushiki Kaisha

Tonen Technology Kabushiki Kaisha

Total Centrafricaine de Gestion (TOCAGES)

Toulouse-Distribution Produits Petroliers

Toyoshina Film Co., Ltd.

Tradewind Film Co., Ltd.

Tradewind Maritime Co., S.A.

Transalpine Finance Holdings S.A.

Transalpine Oelleitung in Ooesterreich Gessellschaft

m.b.H.

Trans-Arabian Pipe Line Company

Transgas Umachlege-Lager-Und Transport Gesellschaft

MbH

Turkish Petroleum Company Limited

Twifo Oil Plantations Ltd.

UBAG Unterflur Betankungsanlega Flughafan Zurich

Union Grafica, S.A.

United Kingdom Oil Pipelines Limited

W.A.G. Pipeline Pry. Ltd.

Wako Kasei Kabushiki Kaisha

Wakohjushi Kabushiki Kaisha

Walton, Gatwick Pipeline Company Limited

Werner Weidemann Mineraloelvertich G.m.b.H.

West Shore Pipe Line Company

Wolverina Pipe Line Company

WSG, Warmeservice Gmbh

Wyco Pipe Line Company

Zaire Mobil Oil

Zaire Services Des Entreprises Petrolieras