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

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Office - Supreme Court, U.S.

83-1299 FILED

FEB 6 1984

CLERK

IN THE

Suprene 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.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Of Counsel

DAVID EDWARD NOVITSKI JOHN J. ADAMS

Mobil Oil Corporation MICHAEL B. BARR

3225 Gallows Road (Counsel of Record)

Fairfax, Virginia 22037 MARK G. WEISSHAAR

SUSAN R. CsIA CHARLES D. OSSOLA

ARTHUR G. HOFMANN HUNTON & WILLIAMS

Mobil Oil Corporation 2000 Pennsylvania Ave., N.W.

600 Woodfield Drive Washington, D.C. 20086

Schaumburg, Illinois 60196 202/955-1500

Counsel for Petitioner

THOMAS D. ALLEN Mobil Oil Corporation

WILDMAN, HARROLD, ALLEN

& DIXON

One [IBM Plaza

Chicago, Illinois 60611

February 6, 1984

WiLsow - Eres Printing Co., Inc. - 789-0086 - WasnineTon, D.C. 20001

APPENDIX

TABLE OF CONTENTS

Mobil Oil Corporation v. EPA, 716 F.2d 1187 (7th Cir.

Se cea ibanansbnabindsecniente

Mobil Oil Corporation v. EPA, 18 E.R.C. 2081 (N.D.

Ce aac sactsaetunncnphhoecessivnnons

Order Denying Petition for Rehearing and Suggestion

for Rehearing En Banc in Mobil Oil Corporation v.

EPA, No. 88-1047 (Nov. 8, 1988) ...............0000.0000000002.

NPDES Permit No. IL0002861 0000... cece eee

October 2, 1982 Letter from Illinois Environmental

Protection Agency to Mobil Oil Corporation ..............

Application for Administrative Warrant ...... ch PR as

Affidavit of Jonathan Barney ..0.0000000000.0..00.ccccccccccceceeeeeeeee

I ila, I sca eccnmninncumnnvenancnsvcncceesecesiiones

Warrant No. 82M368 .................. Sameenie seeadeadinmsaasbasinos

Memorandum from Dale S. Bryson to Martha Prothro,

a ccnieteehasboonannmbeovasons

Memorandum from EPA General Counsel, “Effect of

Supreme Court Decision in Marshall v. Barlow’s,

Inc., on EPA Information-Gathering and Inspection

Activities, dated June 29, 1978 0.00.00.

Memorandum from EPA Assistant Administrator for

Enforcement to Regional Administrators, “Conduct

of Inspections After the Barlow’s Decision,” dated

PEE Bile: BU wictsicicccessceee a

Excerpts of Unidentified EPA Document, with EPA

Sample Affidavit for Describing Administrative Pro-

gram for Gathering of Data to be Used in Effluent

Guidelines Development Attached 2200000000000. a

EPA Compliance Inspection Definitions, undated ........

Excerpts from EPA NPDES Compliance Evaluation

Inspection Manual, dated January 1981 .....................

Page

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UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 83-1047

MOBIL OIL CORPORATION, a corporation,

Plaintiff-A ppellant,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and VALDUS ADAMKUS, REGIONAL ADMINISTRATOR,

REGION V,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendants-A ppellees.

Argued April 7, 1983

Decided Sept. 14, 1983

Thomas D. Ailen, Wildman, Harrold, Allen & Dixon,

Chicago, Ill., for plaintiff-appellant.

Robert L. Klarquist, Dept. of Justice, Washington, D.C.,

for defendants-appellees.

Before CUMMINGS, Chief Judge, COFFEY, Circuit

Judge, and WEIGEL, Senior District Judge.*

CUMMINGS, Chief Judge.

This appeal involves a dispute over the scope of au-

thority the United States Environmental Protection

Agency (“EPA’’) enjoys to sample streams of industrial

* The Honorable Stanley A. Weigel, Senior District Judge for the

Northern District of California, is sitting by designation.

2a

waste that run from a petroleum refinery into a nearby

navigable river.

Plaintiff-appellant Mobil Oil Corporation (‘Mobil’)

operates a petroleum refinery near the Des Plaines River,

a navigable river in Illinois. Exercising power delegated

to it by the EPA, the Illinois Environmental Protection

Agency issued Mobil a permit to dump limited amounts

of specified pollutants into that river. Among other things,

the permit requires that Mobil monitor the amount of

pollutants it dumps into the river by regularly testing

samples from the refinery’s waste streams “taken at a

point representative of discharge” into the river and that

it periodically report those test results to the EPA. Be-

cause Mobil treats its waste before dumping it into the

river, presumably to bring the level of pollutants within

the limits prescribed in the permit, the point in the waste

streams “representative of discharge” into the river oc-

curs after the waste has been treated.

In Apri! of 1982, one of the EPA’s engineers requested

Mobil’s permission to collect samples of both treated and

untreated waste water from waste streams at Mobil’s

refinery. Mobil granted permission to take samples of its

treated waste water but refused permission to take sam-

ples of its untreated waste water. Four months later the

EPA obtained an administrative warrant to collect the

unpermitted samples. Mobil’s motion to quash the war-

rant was denied by a magistrate and Mobil thereupon

appealed to the district judge and also filed an action in

the district court for a permanent injunction prohibiting

the EPA from further executing the warrant and requir-

ing it to return to Mobil the samples already taken and

all information gathered therefrom. The district court

ultimately dismissed Mobil’s suit with prejudice and

denied its appeal from the magistrate’s ruling on its mo-

tion to quash. This appea! followed; for the reasons that

follow, we affirm.

8a

The EPA claims that Section 308(a) of the Federal

Water Pollution Control Act, 33 U.S.C. § 1318(a)* au-

thorizes it to sample Mobil’s untreated waste water. Of

course we must give great deference to an agency’s inter-

pretation of the statute which it administers. Udall v.

Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d

616; Public Service Co. of Indiana v. United States En-

1 Section 308 provides in pertinent part:

(a) Whenever required to carry out the objective of this

chapter, including but not limited to (1) developing or assist-

ing in the development of any effluent limitation, or other limi-

tation, prohibition, or effluent standard, pretreatment standard,

or standard of performance under this chapter; (2) determin-

ing whether any person is in violation of any such effluent

limitation, or other limitation, prohibition or effluent standard,

pretreatment standard, or standard of performance; (3) any

requirement established under this section; or (4) carrying out

sections 305, 311, 402, 404 (relating to State permit programs),

and 504 of this Act—

(A) the Administrator shall require the owner or opera-

tor of any point source to (i) establish and maintain such

records, (ii) make such reports, (iii) install, use, and

maintain such monitoring equipment or methods (includ-

ing where appropriate, biological monitoring methods),

(iv) sample such effluents (in accordance with such meth-

ods, at such locations, at such intervals, and in such manner

as the Administrator shall prescribe), and (v) provide

such other information as he may reasonably require; and

(B) the Administrator or his authorized representative,

upon presentation of his credentials—

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

premises in which an effluent 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.

The Act is popularly known as the Clean Water Act and will be

so termed throughout this opinion.

4a

vironmental Protection Agency, 682 F.2d 626, 682 (7th

Cir. 1982). Paragraph (a) (B) of that Section gives the

EPA administrator, or an authorized representative, a

right of entry upon any premises “in which an effluent

source is located” and authorizes him to “sample any ef-

fluents which the owner or operator of such source is re-

quired to sample... .” The EPA claims that each waste

stream that flows from Mobil’s petroleum refinery to the

Des Plaines River is effluent both before and after it is

treated and that it is the same effluent before it has been

treated as it is after. Mobil disagrees. It claims, first,

that the term “effluent” refers only to the waste water

that ends up in the Des Plaines River and argues that

because some of the pollutants in the waste water it

treats do not end up in the river, none of its waste water

is “effluent” until after it has been treated. Mobil claims

second that because treatment alters the composition of

waste water, even if a waste water stream is “effluent”

before it is treated, it is not the same “effluent” as it is

after it is treated. Since Mobil’s permit only requires it

to sample treaied waste water, Mobil argues that the only

“effluent” the EPA may sample is treated waste water.

It is not necessary to become expert in the metaphysics

of waste water to respond to Mobil’s arguments. All that

is necessary is to identify what interest Mobil has in pre-

venting the EPA from sampling untreated waste water,

what interest the EPA has in getting those samples, and

then to inquire whether Congress somehow balanced those

interests when it enacted Section 308, or if not, how Con-

gress would likely have balanced them had it undertaken

to do so. Mobil of course has an interest in keeping

strangers, including EPA officials, off the land on which

its refinery is situated. That interest is not at stake here,

however, because paragraph (a) (B) of Section 308 (33

U.S.C. § 1818(a)(B)) gives the EPA a right of entry

onto that land. (Mobil does not claim that the EPA un-

reasonably exercised that right in this case.) There is no

5a

question that the EPA has a right to enter Mobil’s re

finery; the only question is once it is there, has it the

power to collect samples of untreated waste water?

Mobil undoubtedly has an interest in preventing any ac-

tivity that disrupts the daily operating routine «+ its re

finery, and it is conceivable if unlikely that the collection

of waste water samples by EPA officials might occasion-

ally interfere with that routine. But Mobil admits that

the EPA has the power to collect samples of its treated

waste water and there is no reason to suppose, indeed

Mobil does not claim, that sampling of untreated waste

water interferes more with operations at its refinery than

does sampling of treated waste water. Moreover, para-

graph (a) (B) (ii) of Section 308 gives the EPA power

to inspect records Mobil maintains and equipment it uses

to monitor the flow of pollutants from its refinery, and

it is difficult to imagine how it could be more inconvenient

for Mobil to allow EPA officials to inspect its books and

equipment than to allow them to sample some of its waste

water. See note 1 supra. In addition, the preface to Sec-

tion 308(a) states that the objective of the Act includes

“developing or assisting in the development of any effluent

limitation, or other limitation, prohibition, or effluent

standard, pretreatment standard, or standard of per-

formance” and in order to develop an intelligent effluent

limitation for a particular permittee, information is nec-

essary to determine how efficiently the permittee is treat-

ing the water, which obviously requires a sample of water

both before and after the treatment.

It appears then that the only interest Mobil could pos-

sibly have in preventing EPA officials from sampling its

untreated waste water is that Mobil might want to keep

the EPA in the dark as much as possible about what pol-

lutants are present in the water it dumps into the Des

Plaines River and about how efficient its treatment proc-

esses are at cleaning its waste water of pollutants. Treat-

ment of waste water may mask the presence of a pol-

6a

lutant. It is easier for the EPA to measure accurately

the level of pollutants in waste water after it has been

treated if it knows the level of pollutants in that waste

water before it has been treated; presumably, it can de-

vise tests more sensitive to those pollutants. And if the

EPA is to assess with any reasonable degree of accuracy

how efficient Mobil’s treatment processes are, it needs to

know what pollutants are present in waste water before

it is treated as well as after it has been treated.

Any 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. Section 301(a) of the Clean Water Act

(83 U.S.C. §1811(a)) prohibits the discharge by any

person of any pollutant into the nation’s navigable waters

except that which the EPA expressly permits, and Section

10(a)(1) expressly adopts as one of our nation’s goals

the elimination of the discharge of all water pollutants

by the year 1985 (33 U.S.C. §1251(a)(1)). Policing

compliance with EPA pollution standards is critical to

the achievement of this ambitious goal, and Section 308

(a) eliminates any doubts on that score by expressly au-

thorizing the EPA to check whether someone, such as

Mobil, holding a permit to pollute is complying with the

pollution limits set forth in its permit. Note 1 supra.

Sampling waste water both before and after it is treated

is an effective, perhaps the most effective, means of doing

that. The EPA also has a legitimate need for information

regarding the efficiency of waste treatment systems. Sec-

tion 301(b) (2) (A) of the Act (33 U.S.C. § 1811(b) (2)

(A)) requires the EPA to set limits upon the level of

water pollution by a permit holder like Mobil such that

the permit holder will be required to employ the “best

available technology economically achievable . . . which

will result in reasonable further progress toward the na-

tional goal of eliminating the discharge of all pollutants.”

Information about what pollutants are in Mobil’s waste

7a

water streams before the streams are treated allows the

EPA to meet that obligation. Thus Section 308(a) also

expressly authorizes the EPA to collect samples whenever

required to develop nev permit limits on the discharge of

pollutants. These provisions of Section 308(a) leave no

doubt that the Congress that enacted that Section was

firmly convinced that the interest of permit holders such

as Mobil in keeping secret information about the pol-

lutants in its waste water is not entitled to protection.

We note finally, for purposes of analogy, that the Clean

Air Act contains a section almost identical to Section

308(a)* and that last year this Court refused to quash

a warrant as broad, if not broader, than the warrant is-

sued in this case. See Public Service Co. v. United States

Environmental Protection Agency, 682 F.2d 626, 638 (7th

Cir. 1982), affirming 509 F.Supp. 720 (S.D.Ind. 1981),

certiorari denied, —— U.S. ——, 103 S.Ct. 762, 74 L.Ed.

2d 977.

Mobil makes one other attack on the EPA’s authority.

Mobil suggests that the EPA should have held some sort

of public hearing before it obtained a writ to sample

Mobil’s untreated waste water. Mobil claims that no

EPA regulation authorizes the EPA to conduct such sam-

pling, and presumably the point of any hearing in this

case would be to obtain public authorization for such sam-

pling. Though we doubt that any form of public au-

thorization is necessary—Section 101(e) of the Act (33

U.S.C. § 1251(e)) provides only that “[p]ublice partici-

pation in the development, revision, and enforcement of

any regulation, standard, effluent limitation, plan, or pro-

gram established by the [EPA] Administrator or any

State * * * shall be provided for, encouraged, and as-

sited by the Administrator and the States,” and it is

doubtful whether sampling of waste water qualifies as a

“regulation, standard, effluent limitation, plan, or pro-

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

8a

gram”—Mobil is mistaken in its claim. Section 122.7

(i) (4) of Title 40 of the Code of Federal Regulations,

in effect when Mobil was granted its permit and which

no party cited in their briefs or during oral argument,’

expressly provides that “[t]he permittee shall allow the

Director [of the EPA program] * * * to* * * (4) Sam-

ple or monitor at reasonable times, for the purposes of

assuring permit compliance or as otherwise authorized by

the appropriate Act, any substances or parameters at any

location.”’ Public comment was solicited before this regu-

lation was adopted and therefore whatever public au-

thorization Mobil seeks was already sought.

Judgment affirmed.

3% Mobil did cite 40 C.F.R. § 122.68(i) (2). That provision, how-

ever, merely governs the setting of “effluent limitations or stand-

ards” upon untreated waste water streams. It does not preclude

sampling of untreated waste streams to police compliance with

effluent limitations upon treated waste water streams.

9a

U.S. DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

No. 82-C-5441

MOBIL OIL CORPORATION,

Plaintiff

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Defendants

Dec. 28, 1982

WATER

Federal, state, and local regulation—Constitutionality

(§ 28.03)

Federal, state, and local regulation—Statutory construc-

tion—In general (§ 28.051)

Federal, state, and local regulation—Effluent standards

(§ 28.15)

Federal, state, and local regulation—Administrative

agencies—Procedure before agencies ( § 28.621)

Environmental Protection Agency legally inspected and

sampled internal waste streams on oil facility’s premises

because (1) inspection was conducted pursuant to valid

warrant, (2) internal waste streams are effluents under

Section 308 of Clean Water Act, and (3) inspection was

not in violation of search and seizure clause of Fourth

amendment to U.S. Constitution.

STATUTES

Federal—Federal Water Pollution Control Act—Effluent

standards (§ 95.0212)

Construed.

10a

Motion to dismiss action for declaratory and injunctive

relief against Environmental Protection Agency’s inspec-

tion of oil facility’s internal waste streams; granted.

Thomas D. Allen, James M. Mulcahy, and Elsie E.

Singer, Chicago, Ill., and Nelson S. Anthony and Arthur

G. Hofmann, Schaumburg, IIl., for plaintiff.

Dan K. Webb, U.S. Attorney, Edward J. Moran, As-

sistant U.S. Attorney, Chicago, Ill., Robert M. Anderson,

Barbara Magel, and David M. Sims, EPA Region V,

Chicago, IIl., for defendants.

Before J. Sam Perry, District Judge.

Full Text of Opinion

FINAL ORDER AND JUDGMENT

The above-captioned matter came on for hearing re-

specting plaintiff’s (Mobil) Motions for a Temporary Re-

straining Order, Preliminary Injunction, and other relief

on September 3, 1982. In conjunction with these Mo-

tions, Mobil had also filed an appeal of Federal Magistrate

Sussman’s denial of plaintiff’s Motion to Quash the war-

rant at issue in this case, and a civil action for Declara-

tory Judgment and Permanent Injunction against the

United States Environmental Protection Agency, Region

V (EPA) et al. Mobil Oil requested this Court, inter alia

to declare that EPA’s inspection of Mobil’s facility at

Channahon, Illinois, conducted pursuant to a warrant, on

August 30, 1982 to September 2, 1982, was illegal, beyond

the scope of section 308 of the Clean Water Act, 33 U.S.C.

$1318 (1977), (Act), and unconstitutional under the

Fourth Amendment search and seizure clause. Mobil Oil

alleges that EPA has no authority under the Clean Water

Act to sample internal waste streams located on Mobil Oil

property at any points other than the final point of dis-

charge of those streams to navigable waters. EPA’s pur-

pose in conducting the inspection and sampling program

was to obtain information which may be necessary for the

lla

development of effluent limitations that require the ap-

plication of best available technology economically achiev-

able (BAT) or best practicable control technology (BPT)

pursuant to sections 301 and 304 of the Clean Water

Act, and to monitor Mobil Oil’s compliance with other

environmental requirements under the Act.

At the time of the hearing on the Temporary Restrain-

ing Order and Preliminary Injunction, all parties agreed

in open Court that there was no dispute as to material

facts in the case and that the sole questions presented

were issues of law. This Court established a briefing

scheduled to be followed by the parties in an Order dated

September 7, 1982. Defendant EPA filed a timely Motion

to Dismiss the complaint for failure to state a claim upon

which relief could be granted, together with its supporting

memorandum and brief on the merits of the case. After

having considered all the pleadings and memoranda filed

by both parties to this case, and having been fully ad-

vised in the premises, it is hereby ORDERED, AD-

JUDGED, and DECREED the following:

1. The Administrator of the United States Environ-

mental Protection Agency or his duly authorized repre-

sentative, upon presentation of his credentials, has the

statutory authority pursuant to Section 308 of the Clean

Water Act, 33 U.S.C. § 1318, to collect, or obtain from

an owner or operator, samples of internal waste streams

in accordance with such methods, at such locations, and

in such manner as the Administrator shall prescribe.

2. That the inspection and sampling program con-

ducted by EPA, Region V, at Mobil Oil’s Channahon,

Illinois facility from August 30, 1982 to September 2,

1982 was authorized by a valid warrant, and by Section

308 of the Clean Water Act, 33 U.S.C. § 1318. Said in-

spection was legal, proper, and justified, as well as con-

sistent with all applicable requirements of law including

Section 308 of the Clean Water Act and the Fourth

Amendment to the United States Constitution.

12a

8. The term “effluent” as used throughout the Clean

Water Act, 33 U.S.C. § 1251 et seg., includes waste

streams which flow out of industrial facilities, or out of

equipment within such facilities, and which ultimately are

discharged, either after being treated or otherwise, to

navigable waters or publicly owned treatment works.

4. The internal waste streams sampled by EPA at

Mobil Oil’s Channahon, Illinois facility were “effluents”

within the meaning of the Clean Water Act, and Section

308 of the Clean Water Act in particular, 33 U.S.C.

§ 1318.

5. The Administrator of the U.S. EPA or his duly

authorized representative, upon presentation of his cre-

dentials, has the statutory authority, pursuant to Section

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

any effluents, at any location, whether point source dis-

charges, discharges to a publicly owned treatment works,

or internal waste streams, without having first requested

an owner operator of that facility to sample those same

effluents. In any event, in this case, EPA’s request that

Mobil Oil submit samples to the Agency in lieu of any

EPA-conducted inspection at the Channahon facilities was

rejected by the plaintiff, Mobil Oil Corporation.

WHEREFORE, based on the preceding declarations and

judgments, and for the reasons stated in defendants’

Memorandum in Support of Motion to Dismiss, it is fur-

ther ORDERED,

ADJUDGED and DECREED:

1. That defendants’ Motion to Dismiss for failure to

state a claim is hereby GRANTED in its entirety;

2. Plaintiff’s complaint for Declaratory Judgment and

other relief is hereby DISMISSED with prejudice;

3. Plaintiff’s Motions for Temporary Restraining Or-

der and Preliminary Injunction and other relief are

DENIED;

13a

4. Plaintiff’s Appeal of Magistrate Sussman’s denial

of Mobil’s Motion to Quash Warrant is DENIED;

and

5. This Court’s Order of September 7, 1982 is hereby

dissolved.

l4a

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 8, 1983

Before

HON. WALTER J. CUMMINGS, Chief Judge

HON. JOHN L. CoFFEY, Circuit Judge

Hon. STANLEY A. WEIGEL, Senior District Judge *

No. 83-1047

MOBIL OIL CORPORATION, a corporation,

Plaintiff-A ppellant,

vs.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 82-C-5441—J. Sam Perry, Judge

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-

entitled cause by plaintiff-appellant, no judge in active

service has requested a vote thereon, and all of the judges

on the original panel have voted to deny a rehearing.

Accordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.

*The Honorable Stanley A. Weigel, Senior District Judge for

the Northern District of California, is sitting by designation.

l5a

NPDES Permit No. IL0002861

Illinois Environmental Protection Agency

Division of Water Pollution Control

2200 Churchill Road

Springfield, Illinois 62706

NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM

Reissued (NPDES) Permit

Issue Date: December 11, 1980

Effective Date: Jan. 11, 1981

Expiration Date: June 30, 1981

Permittee: Mobil Oil Corporation

Location : SE of intersection of I55 and the

Des Plaines River, near Joliet (Will

County)

Receiving Waters: Des Plains River to Illinois River

In compliance with the provisions of the Illinois Environ-

mental Protection Act, the Chapter 3 Rules and Regula-

tions of the I!linois Pollution Control Board, and the

FWPCA, the above-named permittee is hereby authorized

to discharge at the above location to the above-named

receiving stream in accordance with the standard condi-

tions and attachments herein.

Permittee is not authorized to discharge after the above

expiration date. In order to receive authorization to dis-

charge beyond the expiration date, the permittee shall

submit the proper application as required by the Illinois

Environmental Protection Agency (IEPA) not later than

180 days prior to the expiration date.

/s/ Thomas G. McSwiggin

THOMAS G. McSwIGcIN, P.E.

Manager, Permit Section

Division of Water Pollution

Control

TGM:YVS:bl/sp/2927

ATTACHMENT B 1

Final

Effluent Limitations and Monitoring

Discharge Number: 001

Discharge Name: Total discharge from Process Treatment Plant

From effective date of this permit until June 30, 1981, the effluent of the above

discharge shall be monitored and limited at all times as follows:

Concentration Load Limits

F Limits mg/1 = _Tbs/day (Kg/day)

80 Day Daily 80 Day Daily Sample

PARAMETER Average Maximum Average Maximum Frequency

Flow (MGD) Daily

Effluent BOD, 20 50 600.56 1722.1 5/week

(272.6) (781.8)

Effluent SS 25 62.5 750.7 2135.9 5/week

(840.8) (969.7)

Effluent Ammonia

Nitrogen as (N) See Attachment G—Specia! Conditions 5/week

Effluent pH See Attachment B 1—Continued 5/week

CoD 11803.4 22746.12 5/week

(5858.7) (10826.7)

egr

Sample

Type

Continuous

Composite

Composite

Composite

Grab

Composite

Oils, Fats & Greases

Phenols

Zinc

Lead

Chromium (Total

Hexavalent)

Chromium Total

Mercury

Sulfide

Total Dissolved Solids

Cyanide, Total

15

See Attachment B 1—Continued

80 448.86

(203.8)

3 8.9

(4.0)

1.0 29.9

(12.4)

1 2.0

(. %)

1.72

38 (.78)

_ 27.05

(12.28)

0005 015

(.007)

_ 8.9

(4.04)

922.14

(418.6)

10.26

(4.65)

84.2

(15.5)

3.4

(1.5)

3.69

(1.67)

46.12

(20.94)

017

(.008 )

19.98

(9.07)

See Attachment G—Special Conditions

1/week

5/week

2/week

2/week

2/week

2/week

2/week

5/week

2/week

2/week

Mathetical

Composite

Composite

Composite

Composite

Composite

Composite

Composite

Composite

Composite

Composite

BLT

18a

ATTACHMENT B 1 CONTINUED

. The pH shall be in the range 6.0 to 9.0.

Total dissolved solids shall not be increased more than

750 mg/1 above background concentration levels un-

less caused by recycling or other pollution abatement

practices, and in no event shall exceed 3,500 mg/1 at

any time.

Samples taken in compliance with the effluent moni-

toring requirements shall be taken at a point repre-

sentative of discharge but prior to mixing with other

effluent streams.

The permittee shall record monitoring results on Dis-

charge Monitoring Report Forms using one such form

for each discharge each month.

The completed Discharge Monitoring Report forms

shall be submitted to IEPA and postmarked no later

than the 15th day of the following month, unless oth-

erwise specified by the permitting authority.

Discharge Monitoring Reports shall be mailed to the

IEPA at the following address:

Illinois Environmental Protection Agency

Division of Water Pollution Control

2200 Churchill Road

Springfield, Illinois 62706

Attention: NPDES Unit (DMR)

Additionally, Discharge Monitoring Report forms shall

be mailed to United States Environmental Protection

Agency in Chicago on a quarterly basis. The permittee

shall submit the reports as follows, unless otherwise

specified by the permitting authority.

19a

ATTACHMENT B 1 CONTINUED

Period Report Due At

U.S. Environmental Protection

Agency

Jan, Feb, Mar April 28th

April, May, June July 28th

July, Aug, Sept October 28th

Oct, Nov, Dec January 28th

Reports shall be addressed to United States Environ-

mental Protection Agency as follows:

NPDES Compliance Unit

United States Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

The Permittee shall also notify the United States En-

vironmental Protection Agency of any excursions as

required by Standard Condition Number 12.

20a

ATTACHMENT Bla

Effluent Limitations and Monitoring

Discharge Number(s): 0O0la

Discharge Name(s): — Sanitary Unit Discharge

From effective date of permit until June 30, 1981, the

effluent of the above discharge(s) shall be monitored and

limited at all times as follows:

Load Limits

Concentration Ibs/day

Limits mg/1_ (Kg/day)

Parameter 30 Day 7 Day Daily 30 Day 7 Day Daily Sample Sample

Avg. Avg. Max. Avg. Avg. Max. Frequency Type

Fecal! Coliform See Attachment Bla—Continued /week Grab

Total Residual! Chlorine 2/week Grab

1. The daily maximum fecal coliform count shall not ex-

ceed 400 per 100 ml.

2. Samples taken in compliance with the effluent moni-

toring requirements shall be taken at a point repre

sentative of the discharge, but prior to its combina-

tion with the process water.

3. The permittee shall record monitoring results on Dis-

charge Monitoring Report Forms using one such form

for each discharge each month.

The completed Discharge Monitoring Report forms

shall be submitted to IEPA, postmarked no later than

the 15th day of the following month, unless otherwise

specified by the permitting authority.

Discharge Monitoring Reports shall be mailed to the

IEPA at the following address:

Illinois Environmental Protection Agency

Division of Water Pollution Control

2200 Churchill Road

Springfield, Illinois 62706

Attention: NPDES Unit (DMR)

2la

ATTACHMENT Bla CONTINUED

Additionally, Discharge Monitoring Report forms shall

be mailed to United States Environmental Protection

Agency in Chicago on a quarterly basis. The permittee

shall submit the reports as follows, unless otherwise

specified by the permitting authority.

Period Report Due At

U.S. Environmental Protection

Agency

Jan, Feb, Mar April 28th

April, May, June July 28th

July, Aug, Sept October 28th

Oct, Nov, Dec January 28th

Reports shall be addressed to United States Environ-

mental Protection Agency as follows:

NPDES Compliance Unit

United States Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

The Permittee shall also notify the United States En-

vironmental Protection Agency of any excursions as

required by Standard Condition Number 12.

22a

ATTACHMENT B 2

Final

Effluent Limitations and Monitoring

Discharge Number: 002

Discharge Name: Non-contact Cooling Water Dis-

charge

From the effective date of this permit until June 30, 1981,

the effluent of the above discharge shall be monitored and

limited at all times as follows:

Concentration Load Limits

Limits mg/1 lbs/day (Kg/day)

Parameter 30 Day Daily 80 Day Daily Sample Sample

Average Maximum Average Maximum Frequency Type

Flow (MGD) Daily Continuous

TOC See Attachment B 2— 2/week Composite

Continued

Temperature See Attachment G— 2/week Grab

Special Conditions

1. The pH shall be in the range 6.0 to 9.0.

2. Samples taken in compliance with the effluent moni-

toring requirements shall be taken at a point repre-

sentative of discharge but prior to mixing with other

effluent streams.

3. For the purpose of this permit, this discharge is lim-

ited to non-contact cooling water, free from process

and other wastewater discharges. In the event that

the permittee shall require the use of water treat-

ment additives, the permittee must request a change

in this permit in accordance with the Standard Con-

ditions—Attachment H.

4. Permittee shall monitor influent and effluent TOC.

Net TOC discharged shall not exceed 5 mg/I.

23a

ATTACHMENT B 2 CONTINUED

5. The permittee shall record monitoring results on Dis-

charge Monitoring Report Forms using one such form

for each discharge each month.

6. The completed Discharge Monitoring Report forms

shall be submitted to IEPA and postmarked no later

than the 15th day of the following month, unless

otherwise specified by the permitting authority.

Discharge Monitoring Reports shall be mailed to the

IEPA at the following address:

Illinois Environmental Protection Agency

Division of Water Pollution Control

2200 Churchill Road

Springfield, Illinois 62706

Attention: NPDES Unit (DMR)

7. Additionally, Discharge Monitoring Report forms

shall be mailed to United States Environmental Pro-

tection Agency in Chicago on a quarterly basis. The

permittee shall submit the reports as follows, unless

otherwise specified by the permitting authority.

Period Report Due At

U.S. Environmental

Protection Agency

Jan, Feb, Mar April 28th

April, May, June July 28th

July, Aug, Sept October 28th

Oct, Nov, Dec January 28th

Reports shall be addressed to United States Environ-

mental Protection Agency as follows:

NPDES Compliance Unit

United States Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

The Permittee shall also notify the United States

Environmental Protection Agency of any excursions

as required by Standard Condition Number 12.

24a

ATTACHMENT B 3

Final

Effluent Limitations and Monitoring

Discharge Number: 003

Discharge Name: Stormwater Discharge

From the effective date of this permit until June 30,

1981, the effluent of the above discharge shall be moni-

tored and limited at all times as follows:

Concentration Load Limits |

Limits mg/1 Ibs/day (Kg/day) |

Parameter 80 Day Daily 30 Day Daily Sample Sample

Average Maximum Average Maximum Frequency Type

Flow (MGD) When Continuous

Discharging

Effluent pH See Attachment B 3— When Grab

Continued Discharging

Oil & Grease 15 When Mathematical

Discharging Composite

TOC 35 When Composite

Discharging

1. The pH shall be in the range 6.0 to 9.0.

Samples taken in compliance with the effluent moni-

toring requirements shall be taken at a point repre-

sentative of discharge but prior to mixing with other

effluent streams, when discharging.

3. For the purpose of this permit, this discharge is lim-

ited to uncontaminated storm water, free from proc-

ess and other wastewater discharges. In the event

that the permittee shall change the constituents of

this waste stream, the permittee must request a

change in this permit in accordance with the Stand-

ard Conditions—Attachment H.

4. The permittee shall record monitoring results on Dis-

charge Monitoring Report Forms using one such form

for each discharge each month.

25a

ATTACHMENT B 3 CONTINUED

5. The completed Discharge Monitoring Report forms

shall be submitted to IEPA and postmarked no later

than the 15th day of the following month, unless

otherwise specified by the permitting authority.

Discharge Monitoring Reports shall be mailed to the

IEPA at the following address:

Illinois Environmental Protection Agency

Division of Water Pollution Control

2200 Churchill Road

Springfield, Illinois 62706

Attention: NPDES Unit (DMR)

6. Additionally, Discharge Monitoring Report forms

shall be mailed to United States Environmental Pro-

tection Agency in Chicago on a quarterly basis. The

permittee shall submit the reports as follows, unless

otherwise specified by the permitting authority.

Period Report Due At

U.S. Environmental

Protection Agency

Jan, Feb, Mar April 28th

April, May, June July 28th

July, Aug, Sept October 28th

Oct, Nov, Dec January 28th

Reports shall be addressed to United States Environ-

mental Protection Agency as follows:

NPDES Compliance Unit

United States Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

The Permittee shall also notify the United States En-

vironmental Protection Agency of any excursions as

required by Standard Condition Number 12.

26a

ATTACHMENT G

Special Conditions

1. The effluent total dissolved solids & ammonia nitro-

gen concentration in the subject discharge shall be

limited to a level that will not cause the receiving

stream to exceed the water quality standard in Rule

203 of the Illinois Pollution Control Board, Chapter

3, Rules and Regulations.

2. By Order of the Pollution Control Board (PCB 80-

54), Mobil Oil Corporation has been granted a vari-

ance from the Chapter 3, Rule 406 effluent ammonia

limitation for Mobil’s petroleum refinery in Will

County, Illinois until July 1, 1982.

Under the terms of that variance, the Permittee shall

be allowed to discharge ammonia (as N), not to ex-

ceed the following, until the permit expiration date,

June 30, 1981.

Concentration Limits Load Limits

mg/l (In pounds/day) (Kg/day)

30 Day Daily 80 Day Daily

Average Maximum Average Maximum

25 40 889 (403.2) 1957 (888.5)

3. The following shall apply to #001 and #002, respec-

tively.

A. The permittee shall monitor and report the following

listed parameters at 6 month intervals. The sample

shall be a 24-hour effluent composite except as other-

wise specifically provided below and the results shall

be submitted with the monitoring reports for Janu-

ary and June to both IEPA and USEPA unless other-

wise specified by the permitting authority. The pa-

rameters to be sampled are:

Arsenic (total)

Barium (total)

Cadmium (total)

27a

ATTACHMENT G CONTINUED

Chromium (total hexavalent)

Chromium (total trivalent)

Copper (total)

Cyanide

Fluoride (total)

Iron (total)

Iron (dissolved)

Lead (total)

Manganese (total)

Mercury (total)

Nickel (total)

Oil, fats and greases*

Phenols

Selenium (total)

Silver

Zinc (total)

In addition, the permittee shall monitor any new toxic

substances as defined by the FWPCA following notifica-

tion by the Illinois Environmental Protection Agency.

B. As receiving waters are designated as Secondary Con-

tact and Indigenous Aquatic Life Waters, as per

PART III, Illinois Pollution Control Board Rules and

Regulations, Chapter 3, the waters shall meet the fol-

lowing standards:

Temperature shall not exceed 93° F (34°C) more

than 5% of the time, or 100° F (387.8°C) at any

time.

4. The discharge credit, if necessary, for contaminated

storm water from storage lagoons and process area

storm water runoff, as applies to discharge #001,

shall be as follows:

Additional storm water credit for the following pa-

rameters shall be based on quantity of storm flow

taken through process treatment.

* Sample shall be a grab sample.

28a

ATTACHMENT G CONTINUED

Pounds Per 1000 gallons

of storm water flow *

‘Parameter - Average Maximum

BOD, 21 A

T. Suspended Solids 17 26

CoD 1.6 3.1

Oil and Grease 067 126

Dry Weather Flow: The average flow from the waste-

water treatment facility for the last three consecutive

zero precipitation days. Previously collected storm water

which is sent to process treatment during this period

shall not be included in this computation.

*Storm Water Flows: The storm water runoff which is

treated in the wastewater treatment facility, that por-

tion of flow greater than the dry weather flow. Measure-

ment of contaminated storm water from tank dike areas

and previously collected may also be used in computing

storm water credit.

The storm water credit does not allow the permittee to

exceed the concentration limits, nor to receive pound

credit for uncontaminated storm water to process from

storage lagoons.

In computing monthly average permit limits to include

storm water credit, the pound credit calculated above

shall be averaged along with process pound limits over

the 30 day period. Explanatory calculations and flow

data shall be submitted together with Discharge Moni-

toring Reports.

5. Mathematical composites for oil, fats and greases

shall consist of a series of flow proportion weighted

grab samples collected over any 24-hour consecutive

period. Each sample shall be analyzed separately and

the weighted average reported. No single grab sam-

ple shall contain more than 75 mg/1 concentration.

(A mathematical composite consists of the average of

all grab samples collected and analyzed during a 24-

hour period. )

29a

ATTACHMENT G CONTINUED

6. By Order of the Pollution Control Board (PCB 80-

53), Mobil Oil Corporation has been granted a vari-

ance from Chapter 3, Rules 408(a) and 1002 of the

Board’s Rules and Regulations as they relate to cy-

anide for Mobil’s petroleum refinery in Will County,

Illinois, until December 31, 1981.

Under the terms of that variance, the Permittee shall

be allowed to discharge cyanide, subject to the follow-

ing conditions, until June 30, 1981.

a. Mobil’s effluent cyanide concentration shall be

limited to a monthly average of 0.2 mg/l and a

daily maximum of 0.37 mg/l, except: one excur-

sion per month above the 0.37 mg/l! daily maxi-

mum shall be allowed up to an absolute limit of

1.5 mg/I.

b. Mobil shall continue to submit progress reports to

the Agency as reported by previous variances for

this facility.

c. Mobil is allowed to use sulfamic acid in testing

for cyanide levels.

Permittee shall be allowed to discharge cyanide, not

to exceed the following, until June 30, 1981.

Concentration Limits mg/1 Load Limits

Average Maximum 80 Day Daily

0.2 0.37 * Average Maximum

5.99 (2.72) 12.66 (5.74)

* See Special Condition 6a on page 15.

30a

ATTACHMENT H

Standard Conditions

Act means the Illinois Environmental Protection Act,

Ch. 111 1/2 /ll. Rev. Stat., Sec. 1001-1051 as Amended.

Agency means the Illinois Environmental Protection

Agency.

Board means the Illinois Pollution Control Board.

Chapter 3 means the Illinois Pollution Control Board

Rules and Regulations, Chapter 3: Water Pollution.

Daily maximum means the maximum unit magnitude

discharged during any calendar day.

Director means the Director of the Illinois Environmen-

tal Protection Agency.

FWPCA means the Federal Water Pollution Control Act,

as amended, 33 U.S.C. 466 et seq., Public Law 95-217,

approved December 27, 1977 (commonly referred to as

the Clean Water Act).

NPDES means the National Pollutant Discharge Elimi-

nation System.

Weekly average means the arithmetic mean of samples

collected during a period of seven consecutive calendar

days for the purposes of monitoring and reporting.

Monthly average means the arithmetic mean of samples

collected during a calendar month for purposes of moni-

toring and reporting. Alternatively, monthly average

may be construed by the Illinois Environmental Protec-

tion Agency to be defined as the arithmetic means of

samples collected during any period of 30 consecutive

calendar days.

3la

All discharges authorized herein shall be consistent

with the terms and conditions of this permit. The

discharge of any pollutant identified in the permit

in excess of that authorized shall constitute a viola-

tion of the permit. Any anticipated facility expan-

sions, production increases, or process modifications

which will result in new, different, or increased dis-

charges of pollutants must be reported by submission

of a new NPDES application or, if such discharges

will not violate the effluent limitations specified in

this permit, by notice to the Agency of such changes.

Following such notice, the permit may be revised to

specify and limit any pollutants not previously lim-

ited.

In case of conflict between these standard conditions

and any special conditions attached to this permit,

the special conditions shall govern.

Except as otherwise provided in the Permit, all wa-

ters of the State shall be kept free from unnatural

sludge or bottom deposits, floating solids, visible oil,

odor, unnatural plant or algae growth, unnatural

color or turbidity, visible foam or matter in concen-

trations or combinations toxic or harmful to human,

animal, plant or aquatic life of other than natural

origin.

Pursuant to Chapter 3, this permit may be modified,

suspended or revoked in whole or in part during its

term for cause including, but not limited to, the fol-

lowing:

a. Violation of any terms or conditions of the permit

(including, but not limited to, schedules of com-

pliance and conditions concerning monitoring, en-

try, and inspection) ;

b. Obtaining a permit by misrepresentation or a fail-

ure to disclose fully all relevant facts; or,

32a

ce. A change in any circumstance that mandates ei-

ther a temporary or permanent reduction of elim-

ination of the permitted discharge.

5. This permit may not be assigned or transferred. In

the event of any change in control or ownership of

facilities from which the authorized discharges ema-

nate, the permittee shall notify the succeeding owner

or controller of the existence of this permit by letter,

a copy of which shall be forwarded to the Agency.

. The issuance of this permit does not convey any prop-

erty rights in either real or personal property, or any

exclusive privileges, nor does it authorize any injury

to private property or any invasion of personal rights,

nor any infringement of federal, state or local laws

or regulations.

. The permittee shall allow any agent duly authorized

by the Agency and/or the United States Environ-

mental Protection Agency upon the presentation of

credentials:

a. To enter the permittee’s premises where effluent

sources are located or in which any records are

required to be kept under the terms and condi-

tions of this permit.

b. To have access to and copy at reasonable times

any records required to be kept under the terms

and conditions of this permit.

c. To inspect at reasonable times any monitoring

equipment or monitoring method required to be

kept by this permit.

d. To sample at reasonable times any discharge of

pollutants.

. Nothing in this permit shall be construed to preclude

the institution of any legal action or relieve the per-

mittee from any responsibilities, liabilities, or penal-

33a

ties to which the permittee is or may be subject under

Section 311 of the FWPCA and shall not be con-

strued to relieve the permittee from civil or criminal

penalties for noncompliance.

Nothing in this permit shall be consirued to preclude

the institution of any legal action nor relieve the per-

mittee from any responsibilities, liabilities, or penal-

ties established pursuant to any applicable state law

or regulation under authority preserved by Section

510 of the FWPCA.

10. Any owner of any publicly owned or regulated treat-

ment works shall give notice to the Agency of the

following:

Any new introduction of pollutants into such

treatment works from a source which would be a

new source as defined in Section 306 of the

FWPCA if such source were discharging pol-

lutants directly to the waters of the State;

Except as to such categories and classes of point

sources or discharges which may be specified by

the Agency, any new introduction of pollutants

into such treatment works from sources which

would be a point source subject to Section 301 of

the FWPCA if it were discharging such pol-

lutants directly to the waters of the State;

Any substantial change in volume or character

of pollutants being introduced into such treat-

ment works by a source introducing pollutants

into such works at the time of issuance of the

permit; and

Such notices shall contain information on:

The quality and quantity of wastewater to be in-

troduced into such treatment works, and

Any anticipated impact of such change in the

quantity or quality of effluent to be discharged

11.

12.

13.

34a

from such publicly owned or publicly regulated

treatment works.

If a toxic effluent standard or prohibition (includ-

ing any schedule of compliance specified in such

effluent standard or prohibition) is established pur-

suant to Section 307(a) of the FWPCA for a toxic

pollutant which is present in the discharge author-

ized herein and such standard or prohibition is more

stringent than any limitation upon such pollutant

in this permit, this permit shall be revised by the

Agency in accordance with the toxic effluent stand-

ard or prohibition and the permittee shall be so

notified.

If for any reason the permittee does not comply with

or will be unable to comply with any parameter lim-

itation or other condition as specified in this permit,

or should any unusual or extraordinary discharge of

waste occur from the facilities herein permitted, the

permittee shall provide the Agency with the follow-

ing information in writing within five (5) days of

becoming aware of the condition:

a. A description of the non-complying discharge in-

cluding the impact upon the receiving water.

b. Cause of non-compliance.

ce. Anticipated time the condition of non-complying

is expected to continue, or if such condition has

been corrected, the duration of the period of non-

compliance.

d. Steps to be taken by the permittee to prevent re-

currence of the condition of non-compliance.

e. Steps taken by the permittee to reduce and elim-

inate non-compliance.

The diversion or bypass of any discharge from the

treatment works by the permittee is prohibited, ex-

cept: (1) where unavoidable to pre the loss of

14.

15.

16.

85a

life or severe property damage; or, (2) where ex-

cessive storm drainage runoff would damage any

facilities necessary for compliance with the terms

and conditions of this permit. The permittee shall

notify the Agency within 72 hours of each diversion

or bypass in accordance with the procedure specified

in Standard Condition 12 for reporting non-compli-

ance. The permittee shall within 30 days after such

incident submit for approval a plan to prevent re-

currence of such incidents.

The permittee shall take all reasonable steps to min-

imize any adverse impact on waters of the State

resulting from non-compliance with any effluent lim-

itations specified in this permit. The permittee will

also provide accelerated or additional monitoring as

necessary to determine the nature and the impact of

the non-complying discharge(s).

The permittee is responsible for maintaining ade-

quate safeguards to prevent the discharge of un-

treated or inadequately treated wastes during elec-

trical power failures either by means of alternate

power sources, standby generators or retention of

inadequately treated effluent. Should the treatment

works not include the above capabilities at the time

of permit issuance, the permittee must furnish

within 120 days to the Agency, for approval, plans

for such facilities and an implementation schedule

for their installation.

The permittee shall effectively monitor the operation

and efficiency of all treatment and control facilities

and the quantity and quality of the treated dis-

charge. The permittee must obtain the equipment

necessary to perform the tests designated by the

influent and effluent limitations indicated in Sched-

ule B, and A if included, or be able to utilize other

laboratory services to determine and report the nec-

essary results. Samples and measurement taken as

17.

18.

36a

required herein shall be representative of the volume

and nature of the monitored discharge. Monitoring

data required for this permit shall be summarized

on a calendar month basis. Individual reports for

each reporting period are to be submitted on the

basis indicated in Schedule B and A if included of

this permit, and/or on the appropriate forms as in-

dicated by the Agency. Original copies of the Dis-

charge Monitoring Report form properly signed and

completed must be submitted and postmarked within

fifteen (15) days after the end of the reporting pe-

riod to: Illinois EPA, DWPC, 2200 Churchill Road,

Springfield, Illinois, 62706, Attention: NPDES Unit

(DMR).

The permittee shall record for all samples the date

and time of sampling, the sampling method used,

the date that analyses were performed, the identity

of the analyses, and the results of all required anal-

ysis and measurements. All sampling and analyti-

cal records required by this permit shall be retained

for a minimum of three years. The permittee shall

also retain all original records from any continuous

monitoring instrumentation and any calibration and

maintenance records for a minimum of three years.

The periods will be extended on a day-for-day basis

during the course of any unresolved litigation, or

when so requested by the Agency.

If the permittee monitors any pollutant at the loca-

tion(s) designated herein more frequently than re-

quired by this permit, using approved analytical

methods as specified above, the results of such moni-

toring shall be included in the calculation and re-

porting of the values required in the Discharge

Monitoring Report Form. Such increased frequency

shall also be indicated.

The analytical and sampling methods used shall con-

form to 40 CFR Part 136 which includes selected

19.

20.

21.

87a

methods from current editions of the reference man-

uals listed below:

a. “Standard Methods for the Examination of Wa-

ter and Wastewaters”, APHA, Washington, D.C.

b. “A.S.T.M. Standards, Part 31, Water’; Ameri-

can Society for Testing and Materials, Philadel-

phia, Pennsylvania.

c. ‘Methods for Chemical Analysis of Water and

Waste’, EPA, Technology Transfer.

The permittee shall calibrate and perform mainte-

nance procedure on all monitoring and analytical

instrumentation at intervals to ensure accuracy of

measurements.

Except for data determined to be confidential pur-

suant to Section 7 or 7.1 of the Act or Section 308

or the FWPCA, all monitoring reports recorded by

this permit shall be available for public inspection at

the offices of the Agency. Knowingly making any

false statement on any such report may result in the

implementation of criminal penalties as provided for

in Section 309 of the FWPCA and Section 44 of the

Act.

The permittee shall at all times maintain in good

working order and operate as efficiently as possible

any facilities or systems of control installed by the

permittee to achieve compliance with the terms and

conditions of the permit.

Owners of publicly owned or publicly regulated

treatment works shall require that any industrial

user of such treatment works comply with federal

requirements concerning:

a. User charges and recovery of construction costs

pursuant to Section 204(b) of the FWPCA, and

applicable regulation in 40 CFR 35;

22.

23.

24.

25.

88a

b. Toxic puiiutant effluent standards and pretreat-

ment standards pursuant to Section 307 of the

FWPCA;

ec. Inspection, monitoring and entry pursuant to Sec-

tion 308 of the FWPCA.

Collected screenings, slurries, sludges, and other

solids shall be disposed of in such a manner as to

prevent entry of those wastes (or runoff from the

wastes) into waters of the State. The proper au-

thorization for such disposal shall be obtained from

the Agency and is incorporated as part hereof by

reference.

If any interim effluent limitations and/or schedule

of compliance is provided for in this permit pur-

suant to Rule 409 of Chapter 3, the permittee is

required to take such action to bring the discharge

into compliance within the shortest period of time

possible. If the Agency determines that the permit-

tee is not taking timely action to secure the appro-

priate grant funding, the Agency may take the fol-

lowing actions:

a. Place the permittee on restricted status.

b. Initiate appropriate enforcement action.

The discharge(s) authorized by this permit shall

comply with, in addition to the requirements of the

permit, all applicable provisions of Chapter 3 or

applicable orders of the Board which are consistent

with the FWPCA or regulation adopted thereunder.

The permittee shall not commence construction or

modification of any treatment works, disposal well,

wastewater source, or process modification until an

authorization to construct has been issued pursuant

to Rule 910 of Chapter 3. If an authorization to

construct is issued, it is hereby incorporated as a

condition of this permit.

26.

27.

28.

39a

The permittee is not authorized to discharge after

the expiration date. In order to receive authoriza-

tion to discharge beyond the expiration date, the

permittee sha!l submit the proper application as re-

quired by the Agency not later than 180 days prior

to the expiration date.

“This permit may be modified or revised, or, alter-

natively revoked and reissued, to comply with an

applicable effluent limitation issued pursuant to the

order of the United States District Court for the

District of Columbia issued on June 8, 1976, in

Natural Resources Defense Council, Inc., et al. v.

Russell E. Train, 8 ERC 2120 (D.D.C. 1976), if the

effluent limitation so issued:

(1) is different in conditions or more stringent than

any effluent limitation in the permit; or

(2) controls any pollutant not limited to the permit.”

This permit may be revised, following notice by the

Agency that applicable effluent limitation covered by

the Natural Resources Defense Council, Inc. et al.

v. Train, 8 E.R.C. 2120 (D.D.C. 1976) will not be

promulgated, to incorporate any applicable effluent

limitation determined under Section 402(a)(1) of

the Federal Water Pollution Control Act. (FWPCA)

Amendments of 1972 as necessary to carry out the

provisions of Section 301(b) (2) (a) of the FWPCA,

if the effluent limitation so determined;

a. Is more stringent than any effluent limitation in

the permit; or

b. Controls any pollutant not limited in the permit.

This permit may be revised to incorporate, if neces-

sary, applicable provisions of an approved 208 plan

pursuant to Section 208 of the FWPCA.

Applicable new or amended Pollution Control Board

Rules or Regulations, Regulations promulgated pur-

40a

suant to the FWPCA or Amendments to the

FWPCA shall be incorporated herein and become

part hereof when the Rule, Regulation or Amend-

ment becomes effective. The Agency will notify each

affected NPDES permittee of such incorporation.

30. The provisions of this permit are severable, and if

any provision of this permit or the application of

any provision of this permit to any circumstance is

held invalid, the application of such provision to

other circumstances and the remainder of this per-

mit shall not be affected thereby.

JG/bs /4621/1-8

(Rev. 9/19/78)

4la

Illinois Environmental Protection Agency

2200 Churchill Road, Springfield, IL 62706

217/782-9720

Mobil Oil Corporation

Joliet Refinery

NPDES Permit No. IL0002861

Report of Compliance Sampling Inspection

Oct. 8, 1982

Mobil Oil Corporation

I-55 and Arsenal Road

Joliet, Illinois 60434

Gentlemen:

On April 28-29, 1982 a Compliance Sampling Inspection

was completed by personnel from the Agency’s Maywood

Regional Office. The purpose of this letter is to give

notification of the results of the inspection. It has been

reported that at the time of the inspection, this facility

was in compliance with all NPDES regulations and that

proper operation and maintenance was being given to the

facility.

The Agency hopes that this excellent effort will continue.

Should you need assistance from the Agency, please con-

tact Judy Meyer at 217/782-9720.

Very truly yours,

s/ Robert FE. Broms, P.E.

ROBERT E. Bros, P.E.

Manager, Compliance Assurance Section

Division of Water Pollution Control

REB:JM:rd5477C /1

ec: USEPA, Enforcement Division

Compliance Assurance Section

Records Unit

Region 2

J. Meyer

42a

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 82M368

IN THE MATTER OF:

MoBIL OIL COMPANY

CHANNAHON, ILLINOIS

APPLICATION FOR ADMINISTRATIVE WARRANT

NOW COMES the Administrator of the United States

Environmental Protection Agency (U.S. EPA), by and

through Dan K. Webb, United States Attorney for the

Northern District of Illinois and applies for an admin-

istrative warrant to enter, inspect and photograph the

premises and to take samples of sludge and liquid in-

fluents and effluents at the Mobil Oil Company facility,

Arsenal Road, Channahon, Illinois on three separate days

within a ten day period in accordance with Section 308

of the Clean Water Act, 33 U.S.C. 1318. In support of

this application, the Administrator respectfully submits

two affidavits and a proposed warrant.

Respectfully submitted

DAN K. WEBB

United States Attorney

By: /s/ Edward Johnson

Assistant United

States Attorney

219 South Dearborn St.

Chicago, Illinois 60604

353-5312

This 27th day of Aug. 1982

/s/ Carl B. Sussman

U.S. Magistrate

43a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

82M368

IN THE MATTER OF:

MoBIL OIL COMPANY,

CHANNAHON, ILLINOIS

AFFIDAVIT IN SUPPORT OF APPLICATION

FOR WARRANT TO ENTER, INSPECT,

PHOTOGRAPH, AND SAMPLE PURSUANT

TO THE CLEAN WATER ACT

AFFIDAVIT OF JONATHAN BARNEY

JONATHAN BARNEY, being first duly sworn, states

as follows:

1. I am currently employed as a Chemical Engineer in

the Permit Section, Water Quality Branch, Water Divi-

sion, Region V, United States Environmental] Protection

Agency, (U.S. EPA). In my capacity as a chemical engi-

neer in the Permit Section, I serve as a regional expert in

the areas of chemical engineering and environmental

chemistry related to water pollution control. My responsi-

bilities include providing technical assistance to federal

and state Nationa! Pollution Discharge Elimination Sys-

tem (NPDES) permit staffs within the Region, in the

development and review of discharge limitations and

monitoring requirements for toxic pollutants. One of my

specific duties is to recommend industrial and municipal

facilities for extended compliance sampling inspections for

toxicants (known as CSI-Ts) to be conducted by our En-

vironmental! Services Division.

2. The purpose of the CSI-Ts is twofold: to check for

compliance with existing effluent limitations and other

permit requirements, and to determine whether additional

toxic pollutants are being discharged that should be lim-

44a

ited or otherwise addressed in the next permits. Samples

of wastewater, and often sludge, are collected and ana-

lyzed for a wide range of chemicals using broad scan

techniques as well as specifically for any substances known

or suspected to be present based on past experience and

evaluation of the facilities products and processes. Bioas-

says also are performed to test for harmful effects to

fish, Daphnia, and bacteria. In order to achieve the ob-

jectives of the survey at a complex plant that manufac-

tures or uses chemicals, samples often must be collected

from selected process waste streams within the plant as

well as the final effluent after treatment. There are a

number of reasons for collecting and analyzing in-plant

waste streams:

A. Many toxic pollutants are of concern even at re-

latively low levels. Analysis of combined waste

streams can be hampered by dilution with un-

contaminated cooling water and other process

wastes as well as by interferences introduced by

pollutants in other process wastes. Since this is

a one-time sampling, it is desirable to achieve the

greatest possible analytical sensitivity; pollutant

concentrations can vary widely over periods of

days, weeks, or months, depending upon produc-

tion schedules and other factors.

B. In order to evaluate existing treatment and allow

consideration of potential additional treatment

in the next permit, some indication of a pollu-

tant’s source (at least general process area) and

raw waste load is needed.

C. The influent to the main treatment system often

is sampled to allow evaluation of treatment effi-

ciency of the combined waste.

D. Treatment system sludges often are sampled to

obtain a time-integrated picture of those pollut-

ants that concentrate in the solids.

45a

3. The Mobil Oil Company facility at Channahon was

selected for a CSI-T as part of an ongoing administra-

tive program to monitor facilities that have some poten-

tial for the discharge of toxic pollutants. In addition, the

inspection was scheduled pursuant to the continuing U.S.

EPA program to monitor compliance with existing

NPDES permit requirements. I selected the areas to be

sampled based upon my knowledge of the facility’s proc-

esses and my knowledge of pollutant sources at similar

facilities. In order to accomplish the objectives of the

CSI-T, as described above, the following wastestreams

must be sampled, in addition to the final effluent:

A. Combined effluent from the east and west clari-

fiers of the activated sludge treatment system.

B. Influent to the east and west aeration basins of

the activated sludge treatment system (combined

raw waste following east equalization basin).

C. Waste activated sludge from “Tank 580” or

equivalent (prior to heat treatment).

Except for the sludge all samples are to be 24 hour com-

posites collected using either automatic sample equipment

or a series of manual grabs, at the discretion of the sur-

vey team. Analyses of these samples is necessary to en-

able the U.S. EPA accurately assess compliance and de-

velop any necessary new permit limits for this Mobil Oil

facility.

Further affiant sayeth not.

/s/ Jonathan Barney

JONATHAN BARNEY

Chemical Engineer

U.S. EPA, Region V

Subscribed to and sworn before me

this 27th day of August, 1982

s [Illegibie)

46a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

82M368

IN THE MATTER OF:

MOBIL OIL COMPANY

CHANNAHON, ILLINOIS

AFFIDAVIT IN SUPPORT OF APPLICATION

FOR WARRANT TO ENTER, INSPECT,

PHOTOGRAPH, AND SAMPLE PURSUANT

TO THE CLEAN WATER ACT

AFFIDAVIT OF BASIM J. DIHU

BASIM J. DIHU, being first duly sworn, states as fol-

lows:

1. I am currently employed as an environmental engi-

neer by the Environmental Services Division, Central

District Office of the United States Environmental Pro-

tection Agency (U.S. EPA), Region V. In my capacity

as an environmental engineer, I am responsible for con-

ducting field investigations or inspections to determine

compliance with air, water, and hazardous waste require-

ments. Specifically, I conduct compliance monitoring in-

spections of water pollution control facilities at municipal

and industrial sites and water quality investigations

which include Fate/Risk studies, dilution studies and de-

tailed ambient water quality studies. Most of these in-

spections include the collection of samples for analysis.

2. On April 28, 1982, I visited the Mobil Oil Company

facility in Channahon, Illinois to conduct an inspection

pursuant to the Clean Water Act as requested by the

U.S. EPA, Region V, Permit Section. Upon arrival at

the Mobil Oi! facility, I presented my credentials and re-

quested the following from Mr. Charles Clodi, Manager

of the Technical Department;

47a

1, A twenty-four hour composite on

a) Discharge from 001—treated process

b) Discharge 002—non-contact cooling water

c) Storm water discharge.

Mr. Clodi permitted me to collect each of these samples.

I also requested to be permitted to sample the following:

1. Grab samples before aeration basin

2. Grab samples before the treated water guard basin

3. Sludge samples before heat treatment.

Mr. Clodi communicated with the headquarters of the

Mobil Oil Company and then told me. I would not be

permitted to collect these additional samples. I contacted

the U.S. EPA, Region V office which then spoke with

counsel for the Mobil Oil Company. An agreement could

not be reached, so I discontinued the inspection.

Further affiant sayeth not.

/s/ Basim J. Dihu

BAsIM J. DIHU

Environmental Engineer

U.S. EPA, Region V

48a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

82M368

IN THE MATTER OF:

MoBIL OIL COMPANY

CHANNAHON, ILLINOIS

Civil Inspection Warrant to Enter,

Inspect, Photograph and Sample

Pursuant to 33 U.S.C. § 1318

TO: Basim J. Dihu, Illinois/Indiana Field Investiga-

tion Section, Environmental Services Division,

Central District Office, a duly authorized repre-

sentative of the Administratrix of the United

States Environmental Protection Agency, and any

other duly authorized representative of the Ad-

ministratrix of the United States Environmental

Protection Agency.

An application having been made by the United States

Attorney on behalf of the United States Environmental

Protection Agency (U.S. EPA) for a warrant of entry,

inspection, photography and sampling to determine com-

pliance with National Pollution Discharge Elimination

System (NPDES) permit limits and to assist in the de

veloping of effluent limitations, and affidavits having been

executed by Basim J. Dihu and Jonathan Barney, both

employees of the United States Environmental Protection

Agency, that each believes that an inspection and sam-

pling at the described property are necessary for the

above mentioned purposes;

And, the court being satisfied that there has been suffi-

cient showing that reasonable legislative or administra-

tive standards for conducting an inspection and investiga-

tion have been satisfied with respect to the said described

premises ;

49a

IT IS HEREBY ORDERED THAT U.S. EPA through

its duly authorized representative, Basim J. Dihu and

other duly authorized representatives of the U.S. EPA

are hereby entitled to and shall be authorized and per-

mitted to have entry upon the following described prop-

erty for a total of three separate inspections within the

ten (10) day period for which this warrant is effective,

which is located in the Northern District of Illinois those

premises known as;

the Mobil Oil Company facility located at Interstate

55 and Arsenal Road in Channahon, Illinois, (mail-

ing address P.O. Box 874, Joliet Illinois, 60634)

IT IS FURTHER ORDERED that the entry, inspec-

tion, photographing and sampling, authorized herein shall

be conducted during regular working hours or at other

reasonable times, within reasonable limits and in a rea-

sonable manner from 6:00 a.m. to 10:00 p.m.

IT IS FURTHER ORDERED that the warrant issued

herein shall be for the purpose of conducting an entry,

inspection, photographing and sampling pursuant to 33

U.S.C. § 1318 consisting of the following:

1. Entry to, upon or through the above described

premises including all buildings, structures, equip-

ment, machines, devices, materials and sites to

inspect, sample, monitor and investigate the said

premises.

2. Sample and seize combined effluent from the east

and west clarifiers of the activated sludge treat-

ment system.

3. Sample and seize sludge prior to the heat treat-

ment system.

4. Sample and seize influent to the east and west

aeration basins of the activiated sludge treatment

system (combined raw waste following east

equalization basin)

50a

5. Sample and seize any and all final effluent (s)

6. Take such photographs of the above authorized

procedures as they may be required or necessary.

IT IS FURTHER ORDERED that a copy of this war-

rant shall be left at the premises at the time of inspec-

tion.

IT IS FURTHER ORDERED that if any property is

seized, the authorized representative or representatives

conducting the search and seizure shall leave a receipt for

the property taken and prepare a written inventory of the

property seized and return this warrant with the written

inventory before me within 10 days from the date of this

warrant.

IT IS FURTHER ORDERED that the warrant au-

thorized herein shall be valid for a period of 10 days from

the date of this warrant.

IT IS FURTHER ORDERED that the United States

Marshal is hereby authorized and directed to assist the

representatives of the United States Environmental Pro-

tection Agency in such manner as may be reasonable,

necessary and required.

Dated: August 27, 1982

/s/ Carl B. Sussman

CARL B. SUSSMAN

United States Magistrate

5la

September 15, 1983

Mobil Oil 308 Decision

Dale S. Bryson

Deputy Director, Water Division

ORIGINAL SIGNED BY

DALE S. BRYSON

Martha Prothro, Director

Permits Division (EH-336)

Attached is a copy of the Seventh Circuit Court of Ap-

peals decision on the Mobil Oil Section 308 case. It is a

clear victory for USEPA. Very briefly USEPA requested

Mobil’s permission to collect samples of internal waste

streams as well as the treatment plant effluent. Mobil

granted the latter but refused the former. We obtained

a warrant and collected the internal waste stream sam-

ples. Mobil motioned to quash the warrant and when that

failed, they filed an action in the district court for a

permanent injunction prohibiting additional sampling and

asking for the return of the samples already taken. The

district court dismissed the suit with prejudice. Mobil

appealed.

The September 14 decision by the Court of Appeals makes

it very clear that we have very broad authority under

Section 308. In addition to some other interesting ob-

servations, the Court states, “Thus Section 308(a) also

expressly authorizes the EPA to collect samples whenever

required to develop new permit limits on the discharge of

pollutants. These provisions of Section 308(a) leave no

doubt that the Congress that enacted that Section was

firmly convinced that the interest of permit holders such

as Mobil in keeping secret information about these pol-

lutants in its waste water is not entitled to protection.”

This decision should help in the permit writing effort.

Attachment

ce Regional Water Division Directors w/attachment

52a

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

Washington, D.C. 20460

Jun. 29, 1978

Office of

General Counsel

MEMORANDUM

SuBJECT: Effect of Supreme Court Decision in Marshall

v. Barlow’s, Inc., on EPA _ Information-

Gathering and Inspection Activities

FROM: General Counsel /s/ Isaac Z. Bernstein

To: Assistant Administrator for Enforcement

Assistant Administrator for Water and

Hazardous Materials

Assistant Administrator for Air and

Waste Management

Assistant Administrator for

Toxic Substances

Regional Administrators, Regions I-X

As you are probably aware, on May 23, 1978, the Su-

preme Court decided the case of Marshall v. Barlow’s,

Inc.,' holding unconstitutional warrantless administrative

searches or inspections by OSHA under the Occupational

Safety and Health Act of 1970. The purpose of this

memorandum is to discuss the applicability of the Court’s

decision to the information-gathering and inspection ac-

tivities conducted by EPA under our various authorizing

statutes, and to recommend administrative responses and

procedures to minimize the disruptive impact of the deci-

sion on those activities.

i1—_— U.S. —— (No. 76-1143) ; 46 U.S.L.W. 4483.

53a

A. Applicability of the Decision to EPA Activities

1. Synopsis of Barlow’s Decision

The major relevant holding of the Barlow’s opinion is

a reaffirmation of the principle, established in earlier

cases,” that administrative agencies ordinarily must ob-

tain search warrants to enter private property for regu-

latory purposes, wnless the property owner consents to

the entry. The Court’s opinion indicates that exceptions

to the warrant requirement will be found very rarely—

only in the case of certain pervasively regulated indus-

tries with a tradition of close government supervision, or

perhaps where the imposition of a warrant requirement

would substantially impair the regulatory scheme. Apart

from these situations," the Court held, warrantless en-

tries are inconsistent with the Fourth Amendment and

will be enjoined.*

The Court’s opinion does not, however, imply that

every statute purporting to allow a right of warrantless

entry will automatically be voided or held unconstitu-

tional. The opinion suggests instead that where the statu-

tory provision is implemented and applied in such a way

that an agency must procure a warrant or its functional

equivalent (7.e., an injunction) where consent to enter is

refused, and where that refusal does not invoke the pos-

sibility of sanctions, the right of entry will be upheld.

2 Camara v. Municipal Court, 387 U.S. 523 (1967) ; See v. City of

Seattle, 387 U.S. 541 (1967).

® The Court has so far recognized only liquor and firearms regula-

tion as qualifying for this exception.

* Barlow's does not alter the “exigent circumstances” exception to

the warrant requirement. This exception would permit EPA to

conduct warrantless nonconsensual entries under its statutes where

prompt inspections are required as a result of emergency situations.

State of Michigan v. Tyler, U.S. —— (No. 76-1608; May 31,

1978), 46 U.S.L.W. 4533; Camara v. Municipal Court, supra at 539.

54a

The Court in Barlow’s also clarified the showing that

must be made to a judicial officer to justify the issuance

of a warrant for an administrative inspection. An agency

need not show that there is probable cause, in the strict

criminal sense, to believe a violation of law will be dis-

covered. Instead, the agency may show either that it has

specific evidence of an existing violation of regulatory

requirements, or that the decision to enter is based on a

reasonable, general neutral (i.e., non-discriminatory)

plan for the implementation * or enforcement of the regu-

latory scheme. The showing now required thus appears

to be of a minimal nature, and warrants should be easily

obtaine’ by EPA.*

2. Warrant Requirements for EPA Activities

On the basis of an analysis of each of the Agency’s

authorizing statutes,” I have concluded (a) that each of

those statutes could be held subject to the warrant re-

quirement,* and (b) that each of those statutes can be

5 While Barlow's does not specifically discuss entries to gather

information for standard-setting, the rationale of the opinion ap-

pears to apply in the same fashion in that context as where the

entry is to enforce existing standards.

®Once an investigation becomes primarily directed at possible

criminal prosecution, or if the entry is to gather evidence for a

criminal prosecution, a search warrant must be obtained under

Rule 41 of the Federal Rules of Criminal Procedure; this warrant

may be issued only under the traditional probable cause standard.

See, State of Michigan v. Tyler, supra, 46 U.S.L.W. at 4537; cf., U.S.

v. LaSalle National Bank, U.S. —— (No. 77-365; June 19,

1978), 46 U.S.L.W. 4713.

7 This memorandum does not address the statutory interpretation

question of whether each of the statutes does in fact contain a

right of entry.

8 It could be argued that those of the Agency’s statutes that can

be characterized as regulating a particular industry (i.e., the Fed-

eral Insecticide, Fungicide, and Rodenticide Act, the Safe Drinking

Water Act, the Toxic Substances Control Act, and Title II of the

Clean Air Act) may be eligible for exceptions to the warrant re-

55a

applied in a way that is consistent with the requirements

articulated in the Court’s opinion. While the requirement

does apply to both information-gathering and compliance

determination activities under our various statutes, war-

rants need be obtained only when consent to enter is re-

fused by the party involved.

B. Recommended Actions and Procedures

1. New Regulations Needed

The Supreme Court’s opinion indicates that right of

entry provisions will be upheld where the agency is legally

committed to obtaining judicial authorization for entry

when consent is refused and where that refusal does not

trigger a threat of sanctions. I therefore recommend that

each headquarters program and enforcement office exer-

cising or authorizing the exercise of rights of entry under

the Clean Air Act, Noise Control Act, Clean Water Act,

Safe Drinking Water Act, Resource Conservation and

Recovery Act, Toxic Substances Control Act, or Federal

Insecticide, Fungicide, and Rodenticide Act immediately

draft, in consultation with the Office of General Counsel,

regulations governing EPA entry procedures under each

of those laws.

These regulations should require EPA officials to seek

warrants or injunctions where consent is refused,® and

quirement as pervasively regulating those industries. Based both

on my analysis of the probability of success of such arguments and

the virtual certainty that protracted litigation would result from

their use, I believe that for the present EPA should not base

inspections under those statutes on the possibility of such excep-

tions. If at some later time we find that the burden of obtaining

warrants where consent is refused has begun to significantly under-

mine our enforcement efforts, we will then be in a much better

position to litigate over possible exceptions, as noted in point B. 4.

below.

® Where the desired entry is for standard-setting purposes, prac-

tical considerations may make it advantageous to obtain injunctions

rather than warrants.

56a

should have the effect of precluding the imposition of

sanctions for any such refusal.'’® Depending on the im-

portance of surprise inspections to the enforcement of the

particular statute involved, the regulations may also au-

thorize EPA officials to seek warrants without attempting

to gain consent.

2. Immediate Procedural Steps

Since the Barlow’s decision has received wide publicity,

we can expect a brief initial period during which litiga-

tion may result immediately from any failure by EPA to

carefully adhere to what is now apparently the law. In

order to avoid adverse decisions and disruptive challenges

to our ongoing activities, I recommend that all EPA staff

conducting entry-related activity be immediately in-

structed: (a) Not to cite any EPA statute as authorizing

a right of warrantless entry; (b) Not to refer to or in

any way threaten the possible imposition of any civil or

criminal sanctions or penalties in connection with any de-

sired entry or refusal to consent to entry; (c) Not to at-

tempt to enforce any right of entry through the issuance

or the threat of issuance of any administrative order, the

violation of which could result in the imposition of civil or

criminal sanctions or penalties; and (d) To gain entry

where consent is refused" either by obtaining warrants

or by seeking injunctive orders from district courts, where

that is authorized by the statute involved.* For the next

10 While FIFRA does contain explicit authorization to seek war-

rants [§9(b)], regulations are sti]) needed to require EPA to do

so when consent is refused, thus precluding the argument that

refusal of consent can result in the imposition of sanctions.

11 As noted above, warrants may often be sought without first

seeking consent.

12 The legal authority under which magistrates issue administra-

tive search warrants of a noncriminal nature, in the absence of a

specific statutory authorization to do so [see ¢.g., FIFRA § 9(b)],

is not clear. At least one circuit court however has held that such

warrants may be obtained where there is a statutory right of entry,

57a

several months, I also request that regional offices consult

with the appropriate headquarters office when entry has

been refused, in order to implement these steps in a na-

tionally consistent fashion.

8. Simplification of Warrant or Order Process

The Court’s clarification of the showing required to

obtain an administrative inspection warrant enables

Agency offices to prepare standard documents to be used

vy each office in applying for warrants. These documents

should include full descriptions of the program involved

and the general plan and criteria under which particular

establishments are selected for inspection or entry. Legal

briefs in support of the applications for the warrants

should also be prepared for use if needed, as will some-

times be the case, in connection with a particular appli-

cation. The Office of General Counsel will assist in the

development of these papers. All standard form letters

for requesting entry now in use should also be examined

at once to determine whether they are consistent with the

criteria stated in point 2 above.

I also recommend that arrangements be made with the

Justice Department to enable us to obtain warrants ex-

Midwest Growers Co-op. Corp. v. Kirkemo, 533 F.2d 455, 462 (9th

Cir., 1976), and it appears likely that Barlow’s will be read to au-

thorize the issuance of warrants where a statutory right of entry

exists. See, e.g., Empire Steel Mfg. Co. v. Marshall, 437 F.Supp.

873, 881-882 (D. Mont., 1977).

It is also possible that the Barlow’s opinion will be read to sug-

gest that where a statute contains a provision authorizing an agency

to commence a civil action for injunctive relief to gain entry, the

agency must follow that course rather than seeking a warrant.

While that is a possible interpretation of the Court’s language, slip

op. at 18-14, I do not believe the Court intended to mandate such a

reading. I therefore recommend that EPA interpret the case as

permitting the Agency to either seek a warrant or commence a

civil action (where authorized), whichever is more appropriate

under the circumstances.

58a

peditiously. These arrangements should be made by the

Office of Enforcement for all EPA enforcement programs

and by the Office of General Counsel for all EPA pro-

grams exercising rights of entry for other information-

gathering purposes.

4. Other Actions

Finally, the Court’s opinion suggests that if the burdens

of obtaining warrants seriously undermines the success-

ful implementation of a regulatory scheme, that scheme

may qualify as an exception to the warrant requirement.

I also recommend therefore that all offices obtaining war-

rants for entries keep reasonable written records of the

incremental burden involved and any other serious draw-

backs to the warrant requirements in practice. As noted

above, if we can amass sufficient evidence of the impor-

tance of a right of warrantless entry, Congress and the

Supreme Court may be persuaded that the program in-

volved is appropriately excepted from the warrant

requirement.

ec: The Administrator

The Deputy Administrator

Associate General Counsels

Regional Counsels

Regional Division Directors

59a

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

Washington, D.C. 20460

11 Apr 1979

MEMORANDUM Office of Enforcement

TO: Regional Administrators

Surveillance and Analysis Division Directors

Enforcement Division Directors

FROM: Assistant Administrator

for Enforcement

SUBJECT: Conduct of Inspections After the Barlow's

Decision

I. Summary

This document is intended to provide guidance to the

Regions in the conduct of inspections in light of the recent

Supreme Court decision in Marshall v. Barlow’s, Inc.,

— US. , 98 S. Ct. 1816 (1978). The decision

bears upon the need to obtain warrants or other process

for inspections pursuant to EPA-administered Acts.

In Barlow’s, the Supreme Court held that an OSHA

inspector was not entitled to enter the non-public portions

of a work site without either (1) the owner’s consent, or

(2) a warrant. The decision protects the owner against

any penalty or other punishment for insisting upon a

warrant.

In summary, Barlow’s should only have a limited effect

on EPA enforcement inspections:

@ Inspections will generally continue as usual;

@ Where an inspector is refused entry, EPA will

seek a warrant through the U.S. Attorney;

®@ Sanctions will not be imposed upon owners of

establishments who insist on a warrant before

60a

allowing inspections of the non-public portions of

an establishment.

The scope of the Barlow’s decision is broad. It affects

all current inspection programs of EPA, including inspec-

tions conducted by State personnel and by contractors.

The Agency’s procedures for inspections, particularly

where entry is denied, were largely in accord with the

provisions of Barlow’s before the Supreme Court issued

its ruling. Nevertheless, a number of changes in Agency

procedure are warranted. Thus, it is important that all

personnel involved in the inspection process be familiar

with the procedural guidelines contained in this document.

This document focuses on the preparation for and con-

duct of inspections, including (1) how to proceed when

entry is denied, (2) under what circumstances a warrant

is necessary, and (8) what showing is necessary to obtain

a warrant.

II. Conduct of Inspections

The following material examines the procedural aspects

of conducting inspections under EPA-administered Acts.

Inspections are considered in three stages: (1) prepara-

tion for inspection of premises, (2) entry onto premises,

and (3) procedures to be followed where entry is refused.

A. Preparation

Adequate preparation should include consideration of

the following factors concerning the general nature of

warrants and the role of personnel conducting inspections.

(1) Seeking a Warrant Before Inspection

The Barlow’s decision recognized that, on occasion, the

Agency may wish to obtain a warrant to conduct an in-

spection even before there has been any refusal to allow

entry. Such a warrant may be necessary when surprise

is particularly crucial to the inspection, or when a com-

6la

pany’s prior bad conduct and prior refusals make it likely

that warrantless entry will be refused. Pre-inspection

warrants may also be obtained where the distance to a

U.S. Attorney or a magistrate is considerable so that ex-

cessive travel time would not be wasted if entry were

denied. At present, the seeking of such a warrant prior

to an initial inspection should be an exceptional circum-

stance, and should be cleared through Headquarters. If

refusals to allow entry without a warrant increase, such

warrants may be sought more frequently. (For specific

instructions on how to obtain a warrant, see Part D.)

(2) Administrative Inspections v. Criminal Inves-

tigations

It is particularly important for both inspectors and at-

torneys to be aware of the extent to which evidence sought

in a civil inspection can be used in a criminal matter, and

to know when it is necessary to secure a criminal rather

than a civil search warrant. There are three basic rules

to remember in this regard: (1) If the purpose of the

inspection is to discover and correct, through civil pro-

cedures, noncompliance with regulatory requirements, an

administrative inspection (civil) warrant may be used;

(2) if the inspection is in fact intended, in whole or in

part, to gather evidence for a possible criminal prosecu-

tion, a criminal search warrant must be obtained under

Rule 41 of the Federal Rules of Criminal Procedure; and

(3) evidence obtained during a valid civil inspection is

generally admissible in criminal proceedings. These prin-

ciples arise from the recent Supreme Court cases of Mar-

shall v. Barlow's, Inc., supra; Michigan v. Tyler, ——

U.S. ——, 98 S.Ct. 1942 (1978); and U.S. v. LaSalle

National Bank, ——- U.S. ——, 57 L. Ed. 2d 221 (1978).

It is not completely clear whether a combined investigation

for civil and criminal] violations may be properly con-

ducted under a civi! or “administrative” warrant, but we

believe that a civil] warrant can properly be used unless

the intention is clearly to conduct a criminal investigation.

62a

(3) The Use of Contractors to Conduct Inspections

Several programs utilize private contractors to aid in

the conduct of inspections. Since, for the purpose of in-

spections, these contractors are agents of the Federal gov-

ernment, the restrictions of the Barlow’s decision also ap-

ply to them. If contractors are to be conducting inspec-

tions without the presence of actual EPA inspectors, these

contractors should be given training in how to conduct

themselves when entry is refused. With respect to obtain-

ing or executing a warrant, an EPA inspector should

always participate in the process, even if he was not at

the inspection where entry was refused.

(4) Inspections Conducted by State Personnel

The Barlow’s holding applies to inspections conducted

by State personnel and to joint Federal/State inspections.

Because some EPA programs are largely implemented

through the States, it is essential that the Regions assure

that State-conducted inspections are conducted in com-

pliance with the Bar/ow’s decision, and encourage the State

inspectors to consult with their legal advisors when there

is a refusal to allow entry for inspection purposes. State

personnel should be encouraged to contact the EPA Re-

gional Enforcement Office when any questions concerning

compliance with Barlow’s arise.

With regard to specific procedures for States to follow,

the important points to remember are: (1) The State

should not seek forcible entry without a warrant ur penal-

ize an owner for insisting upon a warrant, and (2) the

State legal system should provide a mechanism for issu-

ance of civil administrative inspection warrants. If a

State is enforcing an EPA program through a State

statute, the warrant process should be conducted through

the State judicial system. Where a State inspector is act-

ing as a contractor to the Agency, any refusal to allow

entry should be handled as would a refusal to an Agency

inspector as described in section II.B.3. Where a State in-

63a

spector is acting as a State employee with both Federal

and State credentials, he should utilize State procedures

unless the Federal warrant procedures are more advan-

tageous, in which case, the warrant should be sought

under the general procedures described below. The Re

gions should also assure that all States which enforce

EPA programs report any denials of entry to the appro-

priate Headquarters Enforcement Attorney for the rea-

sons discussed in section II.B.4.

B. Entry

(1) Consenual Entry

One of the assumptions underlying the Court’s decision

is that most inspections will be consensual and that the

administrative inspection framework will thus not be

severely disrupted. Consequently, inspections will nor-

mally continue as before the Barlow’s decision was issued.

This means that the inspector will not normally secure a

warrant before undertaking an inspection but, in an at-

tempt to gain admittance, will present his credentials and

issue a notice of inspection where required. The establish-

ment owner may complain about allowing an inspector to

enter or otherwise express his displeasure with EPA or

the Federal government. However, as long as he allows

the inspector to enter, the entry is voluntary and con-

sensual unless the inspector is expressly told to leave the

premises. On the other hand, if the inspector has gained

entry in a coercive manner (either in a verbal or physi-

cal sense), the entry would not be consensual.

Consent must be given by the owner of the premises or

the person in charge of the premises at the time of the

inspection. In the absence of the owner, the inspector

should make a good faith effort to determine who is in

charge of the establishment and present his credentials to

that person. Consent is generally needed only to inspect

the non-public portions of an establishment—i.e., any evi-

64a

dence that an inspector obtains while in an area open to

the public is admissible in an enforcement proceeding.

(2) Withdrawal of Consent

The owner may withdraw his consent to the inspection

at any time. The inspection is valid to the extent to which

it has progressed before consent was withdrawn. Thus,

observations by the inspector, including samples and

photographs obtained before consent was withdrawn,

would be admissible in any subsequent enforcement action.

Withdrawal of consent is tantamount to a refusal to allow

entry and should be treated as discussed in section II.B.3.

below, unless the inspection had progressed far enough to

accomplish its purposes.

(3) When Entry is Refused

Barlow’s clearly establishes that the owner does have

the right to ask for a warrant under normal circum-

stances. Therefore, refusal to allow entry for inspec-

tional purposes will not lead to civil or criminal penalties

if the refusal] is based on the inspector’s lack of a warrant

and one of the exemptions discussed in Part C does not

apply. If the owner were to allow the inspector to enter

his establishment only in response to a threat of enforce-

ment liability, it is quite possible that any evidence ob-

tained in such an inspection would be inadmissible. An

inspector may, however, inform the owner who refuses

entry that he intends to seek a warrant to compel the in-

spection. In any event, when entry is refused, the inspec-

tor should leave the premises immediately and telephone

the designated Regional Enforcement Attorney as soon as

possible for further instructions. The Regional Enforce-

ment Attorney should contact the U.S. Attorney’s Office

for the district in which the establishment desired to be

inspected is located and explain to the appropriate Assist-

1 FIFRA inspections are arguably not subject to this aspect of

Barlow's. See discussion, p. 5 and 6.

65a

ant United States Attorney the need for a warrant to con-

duct the particular inspection. The Regional Attorney

should arrange for the United States Attorney to meet

with the inspector as soon as possible. The inspector

should bring a copy of the appropriate draft warrant and

affidavits. Samples are provided in the appendix to this

document.

(4) Headquarters Notification

It is essential that the Regions keep Headquarters in-

formed of all refusals to allow entry. The Regional At-

‘orney should inform the appropriate Headquarters en-

forcement attorney of any refusals to enter and should

send a copy of all papers filed to Headquarters. It is

necessary for Headquarters to monitor refusals and Re-

gional success in obtaining warrants to evaluate the need

for improved procedures and to assess the impact of

Barlow’s on our compliance monitoring programs.

C. Areas Where a Right of Warrantless Entry Still

Exists

(1) Emergency Situations.

In an emergency, where there is no time to get a war-

rant, a warrantless inspection is permissible. In Camara

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

Court states that “nothing we say today is intended to

foreclose prompt inspections, even without a warrant, that

the law has traditionally upheld in emergency situations”.

Nothing stated in Barlow’s indicates any intention by the

court to retreat from this position. The Regions will al-

ways have to exercise considerable judgment concerning

whether to secure a warrant when dealing with an emer-

gency situation. However, if entry is refused during an

emergency, the Agency would need the assistance of the

U.S. Marsha] to gain entry, and a warrant could probably

be obtained during the time necessary to secure that Mar-

shal’s assistance.

66a

An emergency situation would include potentia] immi-

nent hazard situations, as well as, situations where there

is potential for destruction of evidence or where evidence

of a suspected violation may disappear during the time

that a warrant is being obtained.

(2) FIFRA Inspections.

There are some grounds for interpreting Barlow’s as

not being applicable to FIFRA inspections. The Barlow’s

restrictions do not apply to areas that have been subject

to a long standing and pervasive history of government

regulation. An Agency administrative law judge held

recently that even after the Barlow’s decision, refusal to

allow a warrantless inspection of a FIFRA regulated

establishment properly subjected the owner to civil pen-

alty. N. Jonas & Co., Inc., I.F. & R Docket No. III-121C

(July 27, 1978). For the present, however, FIFRA in-

spections should be conducted under the same require-

ments applicable to other enforcement programs.

(3) “Open Fields” and “In Plain View” situations.

Observation by inspectors of things that are in plain

view, (i.e., of things that a member of the public could be

in a position to observe) does not require a warrant.

Thus, an inspector’s observations from the public area of

a plant or even from certain private property not closed

to the public are admissible. Observations made even be-

fore presentation of credentials while on private property

which is not normally closed to the public are admissible.

D. Securing a Warrant

There are several general rules for securing warrants.

Three documents have to be drafted: (a) an application

for a warrant, (b) an accompanying affidavit, and (c)

the warrant itself. Each document should be captioned

with the District Court of jurisdiction, the title of the

action, and the title of the particular document.

67a

The application for a warrant should generally identify

the statutes and regulations under which the Agency is

seeking the warrant, and should clearly identify the site

or establishment desired to be inspected (including, if

possible, the owner and/or operator of the site). The ap-

plication can be a one or two page document if all of the

factual background for seeking the warrant is stated in

the affidavit, and the application so states. The applica-

tion should be signed by the U.S. Attorney or by his

Assistant U.S. Attorney.

The affidavits in support of the warrant application are

crucial documents. Each affidavit should consist of con-

secutively numbered paragraphs, which describe all of the

facts that support warrant issuance. If the warrant is

sought in the absence of probable cause, it should recite

or incorporate the neutral administrative scheme which is

the basis for inspecting the particular establishment.

Each affidavit should be signed by someone with personal

knowledge of all the facts stated. In cases where entry

has been denied, this person would most likely be the in-

spector who was denied entry. Note that an affidavit is a

sworn statement that must either be notarized or person-

ally sworn to before the magistrate.

The warrant is a direction to an appropriate official

(an EPA inspector, U.S. Marshal or other Federal offi-

cer) to enter a specifically described location and perform

specifically described inspection functions. Since the in-

spection is limited by the terms of the warrant, it is im-

portant to specify to the broadest extent possible the areas

that are intended to be inspected, any records to be in-

spected, any samples to be taken, any articles to be seized,

etc. While a broad warrant may be permissible in civil

administrative inspections, a vague or overly broad war-

rant will probably not be signed by the magistrate and

may prove susceptible to constitutional challenge. The

draft warrant should be ready for the magistrate’s signa-

ture at the time of submission via a motion to quash and

68a

suppress evidence in Federal District court. \Once the

magistrate signs the draft warrant, it is an enforceable

document. Either following the magistrate’s signature or

on a separate page, the draft warrant should contain a

“return of service” or “certificate of service”. This por-

tion of the warrant should indicate upon whom the war-

rant was personally served and should be signed and

dated by the inspector. As they are developed, more spe-

cific warrant-issuance documents will be drafted and sub-

mitted to the Regions.

E. Standards or Bases for the Issuance of Adminis-

trative Warrants.

The Barlow’s decision establishes three standards or

bases for the issuance of administrative warrants. Ac-

cordingly, warrants may be obtained upon a showing:

1) of traditional criminal probable cause, 2) of civil

probable cause, or 3) that the establishment was selected

for inspection pursuant to a neutral administrative in-

spection scheme.

1. Civil specific probable cause warrant.

Where there is some specific probable cause for issu-

ance of a warrant, such as an employee complaint or com-

petitor’s tip, the inspector should be prepared to describe

to the U.S. Attorney in detail the basis for this probable

cause.

The basis for probable cause will be stated in the affi-

davit in support of the warrant. This warrant should be

used when the suspected violation is one that would result

in a civil penalty or other civil action.

2. Civil probable cause based on a neutral ad-

ministrative inspection scheme.

Where there is no specific reason to think that a viola-

tion has been committed, a warrant may still be issued if

69a

the Agency can show that the establishment is being in-

spected pursuant to a neutral administrative scheme. As

the Supreme Court stated in Barlow’s:

“Probable cause in the criminal law sense is not re-

quired. For purposes of an administrative search,

such as this, probable cause justifying the issuance

of a warrant may be based not only on specific evi-

dence of an existing violation, but also on a showing

that “reasonable legislative or administrative stand-

ards for conducting an . . . inspection are satisfied

with respect to a particular [establishment]”. A

warrant showing that a specific business has been

chosen for an OSHA search on the basis of a general

administrative plan for the enforcement of the act

derived from neutral sources such as, for example,

dispersion of employees in various type of industries

across a given area, and the desired frequency of

searches in any of the lesser divisions of the area,

would protect an employers Fourth Amendment

rights.”

Every program enforced by the Agency has such a scheme

by which it prioritizes and schedules its inspections. For

example, a scheme under which every permit holder in a

given program is inspected on an annual basis is a satis-

factory neutral administrative scheme. Also, a scheme in

which one out of every three known PCB transformer re-

pair shops is inspected on an annual basis is satisfactory,

as long as, neutral criteria such as random selection are

used to select the individual establishment to be inspected.

Headquarters will prepare and transmit to the Regions

the particular neutral administrative scheme under which

each program’s inspections are to be conducted. Inspec-

tions not based on specific probable cause must be based

on neutral administrative schemes for a warrant to be

issued. Examples of two neutral administrative schemes

are provided in the appendix. (Attachments II and III)

<=

70a

The Assistant U.S. Attorney will request the inspector

to prepare and sign an affidavit that states the facts as

he knows them. The statement should include the

sequence of events culminating in the refusal to allow

entry and a recitation of either the specific probable cause

or the neutral administrative scheme which led to the

particular establishment’s selection for inspection. The

Assistant U.S. Attorney will then present a request for

an inspection warrant, a suggested warrant, and the in-

spector’s affidavit to a magistrate or Federal] district court

judge.”

3. Criminal Warrants.

Where the purpose of the inspection is to gather evi-

dence for a criminal prosecution, the inspector and the

Regional Attorney should request that the U.S. Attorney

seek a criminal warrant under Rule 41 of the Federal

2 The Barlow's decision states that imposing the warrant require-

ment on OSHA would not invalidate warrantless search provisions

in other regulatory statutes since many such statutes already

“envision resort to Federal court enforcement when entry is re-

fused”. There is thus some question as to whether the existence of

a non-warrant Federal court enforcement mechanism in a statute

requires the use of that mechanism rather than warrant issuance.

We believe that the Barlow’s decision gives the agency the choice

of whether to proceed through warrant issuance or through an

application for an injunction, since the decision is largely based on

the fact that a warrant procedure imposes virtually no burden on

the inspecting agency. In addition, an agency could attempt to

secure a warrant prior to inspection on an ex parte basis, something

not available under normal injunction proceedings. Several of the

acts enforced by EPA have provisions allowing the Administrator

to seek injunctive relief to assure compliance with the various parts

of a particular statute. There may be instances where it would be

more appropriate to seek injunctive relief to gain entry to a facility

than to attempt to secure a warrant for inspection, although at this

point we cannot think of any. However, since the warrant process

will be far more expeditious than the seeking of an injunction, any

decision to seek such an injunction for inspection purposes should

be cleared through appropriate Headquarters staff.

Tla

Rules of Criminal Procedure. This requires a specific

showing of probable cause to believe that evidence of a

crime will be discovered. Agency policy on the seeking of

criminal warrants has not been affected by Barlow’s. The

distinction between administrative inspections and crimi-

nal warrant situations is discussed in Section II.A.2.

F. Inspecting with a Warrant

Once the warrant has been issued by the magistrate or

judge, the inspector may proceed to the establishment to

commence or continue the inspection. Where there is a

high probability that entry will be refused even with a

warrant or where there are threats of violence, the in-

spector should be accompanied by a U.S. Marshal when

he goes to serve the warrant on the recalcitrant owner.

The inspector should never himself attempt to make any

forceful entry of the establishment. If the owner refuses

entry to an inspector holding a warrant but not accom-

panied by a U.S. Marshal, the inspector should leave the

establishment and inform the Assistant U.S. Attorney and

the designated Regional Attorney. They will take appro-

priate action such as seeking a citation for contempt.

Where the inspector is accompanied by a U.S. Marshal,

the Marshal is principally charged with executing the

warrant. Thus, if a refusal or threat to refuse occurs,

the inspector should abide by the U.S. Marshal’s decision

whether it is to leave, to seek forcible entry, or otherwise.

The inspector should conduct the inspection strictly in

accordance with the warrant. If sampling is authorized,

the inspector must be sure to carefully follow all proce-

dures, including the presentation of receipts for all sam-

ples taken. If records or other property are authorized to

be taken, the inspector must receipt the property taken

and maintain an inventory of anything taken from the

premises. This inventory will be examined by the magis-

trate to assure that the warrant’s authority has not been

exceeded.

72a

G. Returning the Warrant.

After the inspection has been completed, the warrant

must be returned to the magistrate. Whoever executes

the warrant, (i.e., whoever performs the inspection), must

sign the return of service form indicating to whom the

warrant was served and the date of service. He should

then return the executed warrant to the U.S. Attorney

who will formally return it to the issuing magistrate or

judge. If anything has been physically taken from the

premises, such as records or samples, an inventory of

such items must be submitted to the court, and the in-

spector must be present to certify that the inventory is

accurate and complete.

III. Conclusion

Except for requiring the Agency to formalize its neu-

tral inspection schemes, and for generally ending the

Agency’s authority for initiating civil and/or criminal

actions for refusal to allow warrantless inspections, Bar-

low’s should not interfere with EPA enforcement inspec-

tions.

Where there is doubt as to how to proceed in any entry

case, do not hesitate to call the respective Headquarters

program contact for assistance.

/s/ Marvin B. Durning

MARVIN B. DURNING

73a

EXCERPTS OF UNIDENTIFIED EPA DOCUMENT

e.

3)

. * * * *

d) if a sampling team encounters resistance at

the facility, the team leader should

telephone the responsible OGC attorney and

await further instructions; and

e) where a sampling visit is cancelled, whether

in advance or on-site, an OGC attorney

should draft a Section 308 letter which asks

the company to document the reasons why

the sampling visit was cancelled.

A company must be notified that it may assert

a claim of business confidentiality as to any

information obtained in the sampling visit. See

Section G below, Confidentiality Issues.

When entry is refused—Warrants.

1)

2)

3)

Marshall v. Barlows Inc., 436 U.S. 307 (1978),

establishes that an owner or manager of an in-

dustrial facility does have the right to ask for a

warrant as a prerequisite to entry under normal

circumstances. Therefore, refusal to allow entry

for inspection purposes will not lead to civil or

criminal penalties if the refusal is based on the

inspector’s lack of a warrant.

If denied entry the inspector should leave the

premises immediately and telephone the desig-

nated OGC or Regional Enforcement Attorney

as soon as possible for further instructions.

If the inspector is an EPA employee the con-

tacted Attorney should get in touch with the

U.S. Attorney’s Office for the district in which

the establishment sought to be inspected is lo-

cated and explain to the appropriate Assistant

United States Attorney the need for a warrant

to conduct the particular inspection. The At-

74a

torney should arrange for the United States

Attorney to meet with the inspector as soon

as possible. The inspector should bring a copy

of the appropriate draft warrant and affidavits.

Samples are provided at the end of this chapter.

(Attachments 4, 5, and 6)

a) If the inspector is an EPA contractor a

warrant should not be sought without first

checking within OGC and the Office of En-

forcement.

f. Use of contractors

1)

2)

3)

Whether contract personnel are “authorized

representatives” for purposes of entry under

Section 308 may be disputed.

a) While the Agency maintains that contrac-

tors are included within the term “author-

ized representatives,” a federal court in Wy-

oming ruled on May 27, 1980 that under

the Clean Air Act the term excludes con-

tractors. (In the Matter of Stauffer Chemi-

cal Company of Wyoming and Stauffer

Chemical Company, 14 ERC 1737.) This

case is being appealed. (The CAA and CWA

provisions are virtually identical).

If an EPA contractor is denied access to a fa-

cility do not seek a warrant. The OGC attor-

ney should consult appropriate persons within

OGC and the Office of Enforcement for further

instructions.

What if a company requires a signed secrecy

agreement between a company and a contractor

as a prerequisite to the contractor’s entry?

a) Under 40 CFR § 2.215 no EPA officer, em-

ployee, contractor or subcontractor can enter

into any confidentiality agreement unless the

75a

agreement is consistent with the Agency’s

confidentiality rules.

b) In the past, various types of secrecy agree-

ments have been signed—some of which

limited EPA’s access to and use of the infor-

mation. This is to be avoided. The attached

“Memorandum on Confidential Treatment of

Certain Information” is consistent with

Agency regulations and may be used with

those sources that would otherwise oppose

EPA’s use of contractors. (Attachment 7)

g. Plant visit reports—

1)

2)

Whenever EPA inspectors (including contrac-

tors) visit plant sites a copy of the trip report

should be sent back to the plant so that errone-

ous or incomplete information can be noted and

confidential treatment of certain information

can be requested.

If a business asserts a business confidentiality

claim for information obtained as a result of

the *2#

76a

ATTACHMENT 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF

IN THE MATTER OF: COMPANY

APPLICATION FOR ADMINISTRATIVE WARRANT

NOW COMES the Administrator of the Environmental

Protection Agency (EPA) by and through the United

States Attorney, and applies for an administrative war-

rant to enter, inspect and copy records pertaining to dis-

charges of any effluents, inspect effluent monitoring

equipment and sample effluents at the facility of the

Company known as the plant located at

. Said entry is for the purposes of collecting

data for the development of effluent limitation guide-

lines, new source performance standards and pretreat-

ment standards and is requested pursuant to the au-

thority granted to the Administrator by Section 308 (a)

of the Clean Water Act, 33 U.S.C. 1318(a). In sup-

port of this application, the Administrator respectfully

submits an affidavit and a proposed warrant.

United States Attorney

By:

Assistant United States Attorney

77a

ATTACHMENT 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF

IN THE MATTER OF: COMPANY

AFFIDAVIT IN SUPPORT OF APPLICATION FOR

WARRANT TO ENTER AND INSPECT PURSUANT

TO THE CLEAN WATER ACT

(33 U.S.C. § 1251 et seq.)

Ernst P. Hall, being duly sworn upon his oath ac-

cording to law, deposes and says:

1. I am the Chief, Metals and Machinery Branch,

Effluent Guidelines Division, Office of Water Planning

and Standards of the U.S. Environmental Protection

Agency, Washington, D.C. I am in charge of the de

velopment of effluent limitation guidelines and new

source performance standards, and pretreatment stand-

ards for the metals and machinery industries as is more

fully set out below.

2. This affidavit is made in support of an application

for an administrative warrant to enter an aluminum

forming facility owned and operated by the

Company located at , known

as the plant, pursuant to the inspection, monitor-

ing and entry authority vested in the Administrator of

the Environmental Protection Agency by Section 308 (a)

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

3. The U.S. Environmental Protection Agency (EPA)

is required to develop effluent limitation guidelines, new

source performance standards and pretreatment stand-

ards for the discharge of pollutants by Sections 301(b),

304(b), 306(b) and 307(a), (b), (c) of the Clean Water

Act (the Act), 33 U.S.C. 1311(b), 1814(b), 1816(b)

and 1317(a), (b) and (c). In developing these limita-

78a

tions and standards EPA must consider a number of

factors, including; the degree of effluent reduction at-

tainable by the use of various technologies, cost, benefits,

age of equipment, process employed, engineering aspects

of the application of various types of control technolo-

gies, process changes, non-water quality environmental

impact and other such factors as the Administrator

deems appropriate. jee Sections 304(b) (1) (B), (b) (2)

(A), and (B), (b)(4)(B), (ce) and (g) of the Act;

33 U.S.C. 1814(b) (1) (B), (b) (2) (A) and (B), (b) (4)

(B), (c) and (g). The limitations and standards are to

be developed for classes and categories of point sources.

Section 304(b) (1) (A), (b) (2) (A). (b) (4) (A) and (g)

(2) of the Act; 33 U.S.C. 1814(b) (1) (A), (b) (2) (A),

(b) (4) (A) and (g)(2). The entry sought in this pro-

ceeding is for the purpose of developing effluent limita-

tions guidelines, new source performance standards and

pretreatment standards, and is not for purposes of en-

forcement.

4. Section 308 of the Act, 33 U.S.C. 1318, entitled

“Inspection, Monitoring and Entry”, provides the Ad-

ministrator of the Agency with broad data gathering

and investigative powers. This Section provides, in part,

that:

(a) Whenever required to carry out the objective

of this Act, including but not limited to (1) de

veloping or assistance in the development of any

effluent limitation, or other limitation, prohibition,

or standard of performance under this Act...

(A) the Administrator shall require the owner or

operator of any point source to (i) establish and

maintain such records, (ii) make such reports,

(iii) install, use, and maintain such monitoring

equipment or methods (including where appropriate,

biological monitoring methods), (iv) sample such

effluents (in accordance with with such methods, at

such locations, at such intervals, and in such man-

79a

ner as the Administrator shall prescribe), and (v)

provide such other information as he may reason-

ably require; and

(B) the Administrator or his authorized representa-

tive, upon presentation of his credentials—

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

through any premises in which an effluent source is

located or in which any records required to be main-

tained under clause (A) of this subsection are lo

cated, and

(ii) may at reasonable times have access to and

copy any records, inspect any monitoring equip-

ment or method required under clause (A), and

sample any effluents which the owner or operator

of such source is required to sample under such

clause.

5. The Administrator’s authority to enter upon any

premise on which an effluent source is located, copy

records, inspect monitoring equipment, sample effluents

or carry out or require the carrying out of any other

activity under Section 308(a)(B) of the Clean Water

Act has been delegated to me. See Chapter 2-13 of the

EPA Delegations Manual and attached memoranda dele-

gating the authority (Appendix A).

6. The development of the effluent limitations and

standards for the Aluminum Forming category of which

Company is a member is proceeding under

a time schedule mandated by a Settlement Agreement

between the National Resources Defense Council, Inc.

and the EPA. N.R.D.C. v. Train, 8 ERC 2120 (D.C.

D.C. 1976). The Settlement Agreement entered by the

court required the promulgation of effluent limitation

guidelines, new source performance standards and pre

treatment standards for 21 industrial categories on a

specific time table. Because EPA is proceeding under a

court ordered timetable we must proceed in as expedi-

80a

tiously a manner as possible. Delays in the acquisition of

data jeopardize the whole schedule. For this reason EPA

must insist on prompt response to requests for data,

sampling and access to facilities.

7. One thrust of the Settlement Agreement was to

require EPA to consider the development of limitations

on 65 toxic substances in industrial discharges. To carry

out this mandate the Agency examines industrial waste-

waters, both raw and treated, for these substances,

studies the treatment processes, and promulgate appropri-

ate effluent limitations and standards. One of the reasons

that the plant was chosen for sampling is that

some of these toxic substances are believed to be used in

the aluminum forming operations at the plant, and it is,

therefore, highly likely that these toxic substances are

present in the effluents.

8. The primary means of gathering information on

the presence of toxic pollutants in the efflucnts of various

processes and the efficiency of treatment processes in

removing the pollutants is the investigation and sampling

of actual plants. The Agency knows of no other way to

gather data of comparable breadth, depth and applica-

bility to its needs in the time available for the develop-

ment of the limitations and standards. This method

involves going onto the premises of industria] plants in

the category being studied and taking samples of the

effluent streams from production processes and the

effluents from treatment systems. These samples are then

analyzed to determine the presence or absence and quan-

tify the amount of specific pollutants and the efficiency

of removal of the treatment system. During the sampling

visit the investigators also gather data relating to the

production occurring during the visit so that it can be

correlated with the observed pollutant loads. This method

has been used at approximately plants in all of the

21 categories at this point in time. The process generally

known as “screening” is used to determine the presence or

8la

absence of pollutants and is normally followed by a proc-

ees known as “verification” in which more detailed

chemical analysis, based on the findings of the screening

results, is performed to quantify the pollutants. At this

stage in the Aluminum Forming study we are simul-

taneously performing screening and verification sampling

and analysis.

9. The effluent limitations, new source performance

standards and pretreatment standards for each category

are incorporated into regulations to be used in developing

effluent limitations for individual plants for inclusion in

National Pollutant Discharge Elimination System per-

mits pursuant to Section 402 of the Act, 33 U.S.C. 1342.

It is highly unlikely that there are any two plants, even

within the same category, which are identical in terms of

process and product mixes. Therefore, it is necessary to

determine the pollution potential and treatment meth-

odology for individual processes within an industrial

complex and correlate this data with production data.

The characteristics of individual processes can then be

combined in building block fashion to develop permit re-

quirements based on the configuration and production of

the actual plant.

10. The rationale for screening and verification plant

selection is to choose a group of plants which collectively

employ all of the processes under consideration and from

which the maximum amount of priority pollutant in-

formation can be obtained. Specific factors considered in

plant selection include processes employed, representative-

ness of a process, availability of information on the

facility, use of the toxic chemicals common to the process,

effectiveness of treatment systems installed, ability to

separate process waste streams for sampling and analysis,

size, age and geographical location. Larger facilities are

frequently chosen so that more processes can be sampled

during one sampling visit. Visits are also sometimes

82a

scheduled to gather information on a facility about which

little is known.

11. One of the 21 point source categories for which

effluent limitation guidelines, new source performance

standards, and pretreatment standards are to be de

veloped is Machinery and Mechanical Products Manu-

facturing.

12. There were 175 SIC codes listed under Machinery

and Mechanical Products Manufacturing and EPA esti-

mates that these SIC codes include 110,000 manufactur-

ing facilities. Because the size and complexity of Ma-

chinery and Mechanical Products Manufacturing made it

too unwieldy for effective project management and regu-

lation development, it was divided into eleven smaller

categories, one of which is Aluminum Forming. Alumi-

num Forming has tentatively been assigned Part 467 of

Title 40 of the Code of Federal Regulations.

13. The major processes used in the Aluminum Form-

ing category are as follows:

Hot rolling

Cold rolling

Foil rolling

Extruding

Heat treating

Chemical cleaning and etching

Forging

Drawing

Can making

Finer differentiation of processes may be necessary based

upon differences found during the course of the study,

such as variations in water use and discharge, waste-

water pollutants, etc. For example, it may be necessary

to differentiate hot rolling of bar from hot rolling of

sheet and plate. Because the approach used to develop

the guidelines is based on individual processes it is neces-

sary to sample the raw wastes from each process sepa-

83a

rately to determine and quantify the presence or absence

of pollutants in wastes from each process. Dilution or

other effects may mask the presence of a pollutant in the

effluent from a single process at a multiple process plant.

In the case of plants with multiple processes, such as

, sampling the combined influent to the plant-wide

wastewater treatment system would only characterize the

effluent of the overall plant wastewater, and would be

useless to adequately characterize the wastes from the

individual processes at the plant. By contrast, sampling of

the raw waste from a particular process would assist in

characterizing that process at many plants.

14. It is presently anticipated that seven plants in

the Aluminum Forming category will be visited for com-

bined screen and verification sampling. EPA’s present

projection for separate verification sampling is 30 addi-

tional plants.

15. Based on the information available within the Di-

vision, the plant is believed to be ideal for screen-

ing and verification for the following reasons: it con-

tains a wider variety of processes than other plants;

these processes are generally representative of the in-

dustry; the treatment systems are highly sophisticated;

the treatment systems handle an wider variety of wastes

than is typical of the industry; the wastes streams are

separate and can be readily sampled; the plant is be-

lieved to use toxic chemicals which may be common in the

industry; it is much larger that most plants in the

industry; represents a major part of the industry;

and the plant is about average in age for the industry.

16. A site visit has already been made to the plant by

the EPA Project Officer and the technical contractor

(Sverdrup & Parcel and Associates, Inc.). During the

visit the Project Officer and the contractor tentatively

identified 23 sampling locations which would provide data

suitable for characterization of the various processes and

treatment systems. The sites are listed in Appendix B.

&4a

17. Samples and production data gathered at the

plant would provide data on the following

processes:

Hot rolling of sheet and plate

Cold rolling of sheet and plate

Chemical cleaning and etching of sheet and plate

Heat treating of sheet and plate

18. Although some of the processes to be examined by

the proposed screening program at the plant have

already been covered, at least partially, at other screen-

ing plants, we believe that the rolling oils used on the

processes at the plant differ substantially from

those sampled previously. We also believe the chemical

cleaning agents are different. This could make a sub-

stantial difference in the toxic pollutants present in the

wastewater.

19. The plant has operations (such as conversion

coating and painting) which are not within the scope of

the Aluminum Forming category but which will require

sampling at the same time. Many other aluminum forming

plants also have similar extraneous operations. In addi-

tion, it is necessary for us to sample the effluents from

these other processes at the same time we sample the

aluminum forming processes so that we can segregate

the effects of effluents from the aluminum forming proc-

esses from the others.

20. The investigations to be performed pursuant to

the administrative warrant sought in this action will be

performed under the supervision of me or a member of

my staff, by employees of Inc., a contractor

employed by the EPA for this purpose. The employees

of Inc. are duly authorized representa-

tives of the EPA for purposes of this study. Section

308(a) of the Act, 33 U.S.C. 1318(a), specifically pro-

vides that either the Administrator or his authorized

representative has the right of access requested here.

85a

21. The locations of the points at which we desire to

take samples and the methodology to be employed at each

sampling point is detailed in Appendix B to this affidavit,

which is incorporated by reference. It may be that upon

commencing the actual sampling the on-site investigator

will desire to modify the sampling points or methodology

slightly. The warrant sought must provide for a limited

amount of professional judgment in selecting the exact

sampling points and methodologys. For example, the

sampling site may be shifted closer to or farther from

the process or the sample type may be charged from

composite to grab or vice versa. The processes investi-

gated, however, will not be varied.

22. The warrant must provide for sufficient time for

the contract personnel and equipment to be assembled and

transported to the site. This process may take 5 days to

complete. The sampling can be completed within days

of the arrival of the sampling crew. However, more time

may be required if one or more of the processes to be

sampled is not operating when the crew is on site.

ERNST P. HALL, Chief

Metals and Machinery Branch

Sworn and Subscribed before me this — day of October,

1978.

Notary Public

86a

NPDES COMPLIANCE INSPECTION DEFINITIONS

Compliance Evaluation Inspection (CEI). PCS Code “C”

A CEI is non-sampling in nature and designed to

verify permittee compliance with applicable NPDES

permit requirements and compliance schedules. This

inspection is based on record reviews and cursory

observations such as walk-through evaluations of

waste sources and wastewater treatment facilities,

visual observations of effluents, receiving waters, etc.

The CEI applies to both chemical and biological self-

monitoring programs of the permittee. The CEI is

the least resource-intensive NPDES compliance in-

spection because specific unit operations which make

up the permittee’s self-monitoring program are not

evaluated in depth by the inspection team.

Performance Audit Inspection (PAI). PCS Code “A”

The PAI focuses on quality assurance of the per-

mittee’s self-monitoring program by evaluation of

permittee performance and/or simulation of all the

steps in the NPDES self-monitoring process from

sample collection and flow measurement through

laboratory analyses, data workup, and reporting.

The PAI still includes the basic objectives and tasks

of a CEI and applies to both chemical and biological

self-monitoring programs. The PAI is more resource

intensive than a CEI because of the additional effort

and ability required for in-depth evaluation of the

permittee’s self-monitoring tasks, but is generally

less resource intensive than a CSI because sample col-

lection and analyses are not a part of the inspection.

Compliance Sampling Inspection (CSI). PCS Code “S”

During the CSI a representative sample(s) of a per-

mittee’s effluent is collected and chemically analyzed.

The results of the analyses are used to verify the ac-

87a

curacy of the permittee’s self-monitoring program

and reports, gather evidence for enforcement pro-

ceedings, determine the quantity and quality of efflu-

ents, etc. In addition, a CSI includes the same objec-

tives and tasks as a CEI.

Compliance Biomonitoring Inspection (CBI). PCS Code

ome

A CBI evaluates the biological effect of a permittee’s

effluent discharge(s) on test organisms through the

utilization of acute toxicity bioassay techniques. In

addition this inspection includes the same objectives

and tasks as a CEI.

Toxics Sampling Inspection (XSI). PCS Code “X”

The XSI has the same overall objectives as a conven-

tional CSI; however, it places increased emphasis on

toxic substances (i.e. the priority pollutants) other

than heavy metals, phenols and cyanide, which are

typically included in a CSI. Increased resources over

a CSI are needed because highly sophisticated tech-

niques are used to analyze samples containing these

pollutants.

Construction Verification Inspections

Conducted by the Corps of Engineers. PCS Code “E”

The Corps will perform inspections of major munic-

ipal wastewater treatment facilities being financed

under EPA’s construction grants program. These

inspections will mainly be limited to those parts of

the CEI which directly concern the facility’s actual

construction progress, except for a cursory visual

description of the nature of the effluent.

88a

Pretreatment Compliance Evaluation Inspection. PCS

Code “sp?

It is a modified CEI which verifies that an industrial

user is in compliance with pretreatment standards.

Applicable sections of the NPDES Compliance In-

spection report are completed in order to summarize

the findings of the inspection.

Dredge and Fill Compliance Evaluation Inspection. PCS

Code “D”

It is a modified CEI which verifies that a permittee

is in compliance with all permit conditions and lim-

itations granted in accordance with Section 404 of

the Clean Water Act.

89a

EPA

United States

Environmental Protection

Agency

Office of Water Enforcement

Enforcement Division (EN-338)

Washington, D.C. 20460

January 1981

Water

NPDES

COMPLIANCE EVALUATION

INSPECTION MANUAL

MCD—75

90a

SECTION 11

ACCESS AND WARRANTS

I. GENERAL

The Act grants the Administrator or his author-

ized representative the authority to:

A. Enter a facility or the place where effluent

records are held;

B. Inspect the permittee’s monitoring equipment

and techniques;

C. Inspect and copy the permittee’s self-monitoring

records;

D. Take samples of discharges which the permit-

tee is required to sample; and

E. Examine any other records which the Admin-

istrator requires to be kept as delineated in

Section IV of this manual.

All of the above should be done, whenever prac-

tical, during the normal working hours observed at

the permittee’s facility (e.g., office hours at a steel

mill even though operating three shifts) after

presentation of credentials. However, the taking

of composite samples over an extended period to

confirm compliance with permit limitation will not

be considered contrary to this requirement so long

as the sampling commences during normal working

hours. If initial entry to the premises of an al-

leged “midnight dumper” is to be made after nor-

mal working hours, prior instructions from an

Enforcement or Regional Counsel Attorney must

be obtained and followed.

All permitting authorities are subject to the

“Unreasonable Search and Seizure” provisions of

9la

the Fourth Amendment to the Constitution. The

ability to use statements (including supportive doc-

uments) by permittees or their agents, samplers

and analysts, may also be subject to the limita-

tions of the “privilege against self incrimination”

provisions of the Fifth Amendment. This limita-

tion may occur directly as a result of Federal ac-

tion, or indirectly as a result of State action

through interpretation of the “due process” provi-

sion of the Fourteenth Amendment. The applica-

tions will be discussed in the following subsections.

The Act also gives the Administrator or a des-

ignee authority to require a permittee (on a non-

routine basis) to provide other information as may

be reasonably required in order to determine if the

permittee is complying with the law. The inspector

may wish to make use of this authority as the

designee of the Administrator in order to request

information not contained in records which the

permittee is required to maintain under the terms

of the permit. Examples of this type of material

are:

1. Changes of processes, products, or volume

of discharge;

2. Treatment processes, and the interrelation-

ship of components; and

3. Purchases of equipment, ete.

Since these materials are first being requested

“on-site”, the instructions to the inspector on what

to do if entry or information is refused do not

apply. The inspector should, if this material is not

forthcoming, continue the inspection. However,

make note of the information or documents re-

quested but not received so that the same may

thereafter be requested in the form of a Section

308 letter.

92a

II. OBJECTIVES

The objectives of this section are to inform or

advise the inspector of:

A. The need for obtaining consent prior to entry,

or sampling;

V. RIGHT OF ENTRY ©

The following procedures are to be followed when

entering a facility for the purpose of conducting a

NPDES Compliance Inspection.

A.

All inspectors shall have in their possession

credentials which identify them as EPA in-

spectors and any safety equipment required

during an NPDES inspection.

One inspector shall be in charge of the inspec-

tion team, and this inspector will be referred

to as the team leader in the following instruc-

tions. All inspections shall be commenced dur-

ing normal work hours of the premises. There

is no objection to reentry thereafter outside

normal working hours for the purpose of tak-

ing or checking composite samples or conduct-

ing flow-through biomonitoring.

Upon arrival at the facility, the team leader

shall ask for the facility representative, who

has been designated through the 308 letter re-

sponse, or in his/her absence the person in

charge of the premises at the time of the in-

spection (in either case, hereafter referred to

as the “facility representative’).

The team shall not:

1. Have any dealings with gate guards other

than to ask for the facility representative;

93a

2. Make any threats or statements as to the

consequences of denial of entry to the gate

guard, facility representative or other per-

sonnel at the facility; or

Sign any waiver of responsibility or lia-

bility.

Upon contact with the facility representative,

the team leader shall present all necessary

credentials and explain the purpose of the in-

spection. All other inspectors shall also dis-

play their credentials. The team leader shall

state that the purpose of the inspection is as

follows:

1.

It is an NPDES inspection dealing with

water and is authorized by Section 308 of

the Clean Water Act.

A review will be performed of all self-

monitoring and other records which are

required by the permit.

It will include a review of all the pollu-

tion control systems at the facility.

If appropriate, it is a sampling inspection

and samples will be taken at the facility’s

discharge and other NPDES permit-

designated monitoring points.

If appropriate, it is a biomonitoring in-

spection to determine the relative toxicity

of the effluent.

If you are denied entry under the following

circumstances:

i.

By the gate guard, then ask for the facil-

ity representative. If the guard refuses to

make the call, leave immediately without

94a

challenge or argument, making no state-

ments;

2. By the facility representative, after iden-

tifying yourself and presenting your cre-

dentials, leave immediately without chal-

lenge or argument, making no statements.

G. If a confidentiality agreement is required as

a prerequisite to entry, the inspector shall re-

fuse to sign it and contact the Regional En-

forcement Division for further instructions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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