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
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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.