Amicus Brief — Mobil Oil Corp. v. United States Environmental Protection Agency

No. 83-1290

ice Supreme Cour

eee ILED

APR 7 1984

i. STEVAS

IN THE CLERK

t, US

Supreme Court of the United States

OCTOBER TER!, 1983

MOBIL OIL CORPORATION,

Petitioner,

Wi

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and VALDUS ADAMKUS, REGIONAL

ADMINISTRATOR, REGION V, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

AMER*(CAN PETROLEUM INSTITUTE

Stark Ritchie

(Counsel of Record)

Stephen E. Williams

Thomas S. Llewellyn

James K. Jackson

AMERICAN PETROLEUM INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8000

Counsel for Amicus Curiae

a

LLL

CASILLAS PRESS INC. + 1717 K ST NW WASHINGTON DC + 223-1220

(i)

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ................

Tet etee Geb dn ddeGeerececcacceeccadeecesn

1. The Seventh Circuit ignored established rules of

statutory construction, and as a result, mis-

construed an important federal statute which has

applicability to virtually all American industry ......

2. The decision of the Seventh Circuit improperly

disregards the constitutional guidelines for

administrative inspections set down by this Court

ne eb ceebeseovece

crak Saeed siee6 660% 6eecevevesetecsenes

TABLE OF AUTHORITIES

Cases:

Camara v. Municipal Court,

STE ¢ bcaceccceccuesobvcvcccsicosooens

Colonnade Catering Corp. v. United States,

EE Scchecccucécossveseotvbvessbeseces

CPSC v. GTE Sylvania, Inc.,

CEE coccckésoccceccesccsacstcsécosoce

Donovan v. Wollaston Alloys, Inc.,

CCCs COED occcdccccccssvcccvccescesoes

E.1. du Pont de Nemours & Co. v. Train,

DMT ED se Gecdcesceccccescccecccocsccccess

EPA v. National Crushed Stone Ass'n,

EEE occcccsesrocesccccccccessovecesene

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ............ Ne etal . passim

Matter of Urick Property,

472 F.Supp. 1193 (W.D. Pa. 1979) 10, 11

Michigan v. Tyler,

436 U.S. 499(1978) ..... NP

See v. City of Seattle,

387 U.S. 541 (1967) ; 8,9

Stark v. Wickard,

321 U.S. 288 (1944) 7

United States v. Biswell,

406 U.S. 311 (1972) ; y

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) ; Jon

Constitution:

U.S. Const., amend. IV .... eat ee oO

Statutes:

Clean Air Act, 42 U.S.C. §7414 (Supp. V 1981) ..... RR Sd vba a = 88 “

Clean Water Act, 33 U.S.C. §1251 ef seq. (1976 &

BU.. V BOOED vevcccccccccesecsncesoces veseeeesbuces passim

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

33 U.S.C. §1319 (1976 & Supp. V 1981) Ds cunt wa ce ee

33 U.S.C. §1342(ay(1) (1976) ........... isetatsaacadaecin

33 U.S.C. §1362(11) (1976) ............ perry eer yt

33 U.S.C. §1362(12) (1976) ............. a ion bio ela ein 5

33 U.S.C. §1362(14) (Supp. V 1981) ........... ee

(iii)

Page

Comprehensive Environmental Response, Compensation

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

GG URGED o vcidvcc cvctddewbsd vi scerevocsetedesesccoces 8

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

DIPOLE P OI, UW NUDED cccccovecccsvascctiocedcoucsseeses 8

Regulations:

Fe SR FS PET T ES TTC TeT Te TTT Terre 5

Ges EUEED cccbeddecesarecdseseccobsccreseuce 5

Miscellaneous:

The Environmental Policy Division of the Congressional

Research Service of the Library of Congress,

A Legislative History of the Water Pollution Control

Aiet AMGEN GF FSFE CEPTS coc cccccccesesscvccccccecsss 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1290

MOBIL OIL CORPORATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY and VALDUS ADAMKUS, REGIONAL

ADMINISTRATOR, REGION V, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE

AMERICAN PETROLEUM INSTITUTE

The American Petroleum Institute submits this brief as

amicus curiae in support of the petition for a writ of cer-

tiorari in Number 83-1290.' The petition seeks review of

the opinion of the United States Court of Appeals for the

Seventh Circuit that the Environmental Protection Agency

(“EPA”) had the authority under Section 308 of the Clean

Water Act, 33 U.S.C. § 1318 (1976 & Supp. V. 1981), to

collect samples from the internal waste water streams at

'Both parties have consented in writing to the filing of this brief.

Copies of the letters from counsel have been lodged with the Clerk.

the petitioner’s petroleum refinery near Joliet, Illinois.

Amicus believes that the Seventh Circuit misconstrued

EPA’s statutory authority under the Act and that the non-

consensual collection of samples from petitioner’s private

property violated its constitutionally protected right to be

free from unreasonable searches and seizures. In an era of

pervasive governmental regulation of commercial enter-

prise, the question of what constitutional limits cir-

cumscribe the government’s authority to enter upon

private property gains added significance and, therefore,

is deserving of plenary review by this Court.

INTEREST OF THE AMICUS CURIAE

The American Petroleum Institute (“API”) is a national

trade association with a membership of over 200 corpora-

tions and 6,000 individuals who are engaged in all aspects

of the petroleum industry. Specifically, forty of API’s

member companies own or operate petroleum refineries

and, therefore, are particularly interested in the outcome

of this case. API regularly represents the petroleum in-

dustry in administrative rulemaking proceedings in the

various state and federal agencies and in litigation in the

state and federal courts. API shares the concern of peti-

tioner, one of its members, that a fair and constitutionally

supportable balance be struck between legitimate govern-

mental regulation of industry and the integrity of private

property.

ARGUMENT

This case involves a modern petroleum refinery located

near Joliet, Illinois, owned and operated by the Mobil Oil

Corporation. Waste waters discharged from the refinery

are subject to federal and state regulation under the Clean

Water Act. The plant operates under a valid National

Pollutant Discharge Elimination System (NPDES) permit

issued by the State of Illinois. Mobil has willingly moni-

tored its waste water discharges and has unhesitatingly

permitted government inspectors to do the same. In 1982,

for the first time, EPA sought, over Mobil’s objection, to

collect samples of the Joliet refinery’s internal waste

streams (i.e., waste waters that had not yet been treated in

the plant’s waste water treatment system). Armed with an

inspection warrant which had been issued based upon two

vague affidavits, EPA collected the samples it desired. In

the courts below Mobil unsuccessfully challenged this in-

voluntary inspection on the grounds that it exceeded

EPA’s statutory authority and that it constituted an

unreasonable search and seizure under the Fourth Amend-

nent to the United States Constitution. In rejecting

Mobil’s contentions, the Seventh Circuit Court of Appeals

glossed over Mobil’s statutory arguments and employed a

novel balancing test by determining that EPA’s interest in

collecting the samples outweighed Mobil’s interest in

preventing their collection.

1. The Seventh Circuit ignored established rules of

statutory construction, and as a result, misconstrued an

important federal statute which has applicability to vir-

tually all American industry.

The Seventh Circuit’s ruling effectively removes the

limitations in the Clean Water Act on the government’s

authority to intrude into commercial private property. In

doing so, that court upset the balance struck by Congress

between the legitimate public interest in pollution control

and private property rights.

In determining the extent of EPA’s authority to sample

industrial waste water streams, one should look first to the

plain meaning of the applicable statute. Consumer Pro-

duct Safety Commission v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980); see EPA v. National Crushed Stone

Ass’n, 449 U.S. 64, 73-74 (1980). The applicable statute

here, Section 308(a) of the Clean Water Act, authorizes

EPA to “sample any effluents which the owner or operator

...is required to sample... .” In granting EPA authority

to engage in sampling, Congress imposed express statutory

limitations on the exercise of that authority: (1) only

sampling of “effluents” is allowed; and (2) such sampling

is allowed only to the extent that the owner or operator is

required to sample the same effluents. Both these limita-

tions were effectively ignored by the courts below.

The first statutory limitation requires one to consider

whether internal waste streams constitute “effluents”

within the intendment of Section 308. Although the term

“effluents” is not defined in the Act, a definition may be

constructed by using other, defined terms.? Indeed, in

2Section 502(11) provides:

The term “effluent limitation” means any restriction

established by a State or the Administrator on quantities,

rates, and concentrations of chemical, physical, biological,

and other constituents which are discharged from point

sources into navigable waters, the waters of the contiguous

zone, or the ocean, including schedules of compliance.

33 U.S.C. § 1362(11) (1976).

Section $02(14) provides:

The term “point source” means any discernible, confined

and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure,

operation, or vessel or other floating craft, from which

pollutants are or may be discharged. This term does not in-

clude return flows from irrigated agriculture.

33 U.S.C. § 1362(14) (Supp. V. 1981).

order to harmonize the term “effluents” with the statutori-

ly defined terms “effluent limitations,” “point source,”

and “discharge of a pollutant,” it is necessary to consider

“effluents” as materials discharged from a discrete and

confined conveyance into the navigable waters of the

United States. Since only treated waste waters are dis-

charged, untreated internal waste streams are not “ef-

fluents” as that term is used in the Act. Thus, Section

308(a) is inapposite to the sampling at issue here.

Even if the term “effluents” could be read so broadly as

to encompass internal streams (a reading amicus believes is

unsupportable on its face or by resort to legislative his-

tory), EPA may only sample those effluents that the plant

owner or operator is required to sample. Neither the Act,

nor EPA’s regulations,? nor the terms of the Illinois

NPDES program, nor Mobil’s NPDES permit require

Mobil to sample internal waste streams. Indeed, the Joliet

refinery’s permit calls for sampling only “at a point rep-

resentative of discharge.”* There being no requirement for

Section $02(12) provides:

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addition of

any pollutant to navigable waters from any point source,

(B) any addition of any pollutant to the waters of the con-

tiguous zone or the ocean from any point source other than

a vessel or other floating craft.

33 U.S.C. § 1362(12) (1976).

JEPA’s regulations promulgated pursuant to Section 308(a) are

found at 40 C.F.R., §§ 122,44(i), 122.45(i) (1983). The regulations call

for monitoring of internal streams only in exceptional circumstances,

not here applicable.

“EPA requested and obtained Mobil’s permission to sample such

discharge “effluents.” This sampling is not and has not been at issue in

these proceedings.

Mobil to sample its internal waste streams, EPA has no

authority under Section 308 to sample these streams.

If one looks beyond the face of the statute to the legis-

lative history, it becomes even clearer that Congress in-

tended to restrict the government’s sampling of industrial

waste waters. While it is true that Congress demonstrated

a desire that EPA be able to obtain sufficient information

in order to carry out its mandate,’ it is also true that Con-

gress intended to limit the monitoring allowed to that

which is necessary for the control of the discharge of pol-

lutants.6 Congress specifically declined to authorize the

gathering of data per se.

Even if the above-cited express limitations on when

EPA can engage in sampling could be ignored, the agency

still would be required to articulate a basis for undertaking

S‘H.R. Rep. No. 911, 92nd Cong., 2d Sess. 113 (1972), reprinted in |

The Environméntal Policy Division of the Congressional Research

Service of the Libarary of Congress, A Legislative History of the

Water Pollution Control Act Amendments of 1972, at 800 (1973).

*In its analysis of the legislation, the House Report stated:

This section requires the owner or operator of any point

source to monitor his own discharges accurately and to

provide information to show whether or not he is in com-

pliance with effluent limitations and other requirements

under this Act.

An indirect result of this requirement to provide valid data

will be the expansion of EPA’s and the States’ data base for

monitoring and planning. However, such monitoring is

basically for control of the discharge of pollutants and not

the gathering of daia. The rights of the Administrator to

inspect is limited to control of discharge of pollutants and

not data gathering per se.

H.R. Rep. No. 911, 92nd Cong., 2d Sess. 114 (1972), reprinted in |

The Environmental Policy Division of the Congressional Research

Service of the Library of Congress, A Legisiative History of the Water

Pollution Control Act Amendments of 1972, at 801 (1973).

its proposed actions. In its application for the inspection

warrant at issue here, EPA cited two statutory purposes

which would be advanced by granting its request: (1) it

would allow EPA to determine permit compliance; and

(2) it would enable EPA to determine whether additional

pollutants should be limited in Mobil’s next permit.

Neither of these stated rationales, however, withstands

analysis. First, EPA had previously found Mobil in com-

pliance with the terms of its NPDES permit, without

resort to the sampling of its untreated waste water.’

Second, the development of additional effluent limitations

for Mobil’s permit was not a legitimate purpose. EPA

must impose technology-based limitations by rule, E./. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 126-128

(1977), and not on a case-by-case basis, unless it retains

the authority to issue NPDES permits, 33 U.S.C.

§1342(a)(1) (1976). In this case, EPA had delegated the

authority to issue NPDES permits to Illinois. Thus, EPA

had no residual authority to impose additional limitations

on the Joliet refinery.

As a federal regulatory agency, EPA can act only pur-

suant to its statutory authority. Stark v. Wickard, 321

U.S. 288, 309-310 (1944). Here, EPA exceeded its authori-

ty and, as a consequence, the sampling should never have

been permitted. If allowed to stand, the Seventh Circuit’s

holding will allow EPA virtually limitless discretion in

conducting inspections of plant sites. Thousands of in-

dustrial plants across the country may be affected. Beyond

this, such a cavalier analysis of statutory authority may

"In fact, Mobil’s Joliet refinery has never been found to be in viola-

tion of any environmental law or regulation, and its wastewater treat-

ment plart received an award from the State of Illinois for en-

vironmental excellence.

well be applied by the government to authorize inspections

under provisions contained in other statutes administered

by EPA,® as well as in any number of other federal

regulatory statutes.

2. The decision of the Seventh Circuit improperly dis-

regards the constitutional guidelines for administrative in-

spections set down by this Court in Barlow’s and Camara.

The fundamental purpose of the Fourth Amendment’s

prohibition against unreasonable searches and seizures is

“to safeguard the privacy and security of individuals

against arbitrary invasions. . .” Camara v. Municipal

Court, 387 U.S. 523, 528 (1967). The Fourth Amend-

ment’s protections apply to commercial as well as residen-

tial premises. See v. City of Seattle, 387 U.S. 541, 543

(1967). Except in “certain carefully defined classes of

cases,” warrantless searches or inspections are unreason-

able and thus violative of the Fourth Amendment. Mar-

shdll v. Barlow’s, Inc., 436 U.S. 307, 312-313 (1978).

Probable cause sufficient to support a warrant for an

administrative inspection must be based either on “specific

evidence of an existing violation,” Barlow’s, 436 U.S. at

320, or on a showing that “ ‘reasonable legislative or ad-

ministrative standards for conducting an inspection are

satisfied with respect to a particular establishment.’ ”

Barlow’s, 436 U.S. at 320, quoting Camara, 387 U.S. at

538. An inspection warrant should not be a mere “rubber

stamp” approval of executive action; rather, it should

reflect the judgment of a neutral and detached magistrate

that the proposed inspection is “reasonable under the con-

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

§ 6927(aX(1) (Supp. V. 1981); Clean Air Act, 42 U.S.C. § 7414 (Supp.

V 1981); Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, 42 U.S.C. § 9604(e(1)(B) (Supp. V 1981).

9

stitution, is authorized by statute, and is pursuant to an

administrative plan containing specific neutral criteria.”

Barlow’s, 436 U.S. at 323. (emphasis added)

As discussed above, the inspection in this case was not

authorized by statute. Even where warrantless adminis-

trative inspections have been upheld,’ they were authoriz-

ed by statute. Even the minimal Fourth Amendment pro-

tections in the form of statutory authorizations accorded

to “nervasively regulated industries” were not afforded to

the petitioner in this case. Thus, not only was the inspec-

tion ultra vires, but also it violated the Fourth Amend-

ment. See, Barlow’s, 436 U.S. at 323.

Even if the inspection here could fall within EPA’s

authority under section 308(a), the affidavits supporting

the inspection warrant failed to meet the criteria for

establishing probable cause set out in Barlow’s. Although

EPA acted pursuant to a warrant in this case, the warrant

was so poorly supported that the difference between this

case and cases where no warrants were obtained, e.gz.,

Barlow’s, Camara, and See, is one of form and not

substance. If the warrants required in all but “certain

carefully defined classes of cases,” Barlow’s, 436 U.S. at

312-313, are to have substance, then meaning must be

given to this Court’s requirement of “an administrative

plan containing specific neutral criteria,” Barlow’s, 436

U.S. at 323.'°

*See Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)

{industry had a long history of strict government regulation]; United

States v. Biswell, 406 U.S. 311 (1972) [urgent governmental interests

at stake; inspections were a crucial part of the regulatory scheme].

'°There was no evidence that Mobil was suspected of a violation of

law or regulation, so EPA officials sought to establish probable cause

on the basis of an administrative plan.

10

This Court provided some guidance as to the meaning

of this requirement in Barlow’s. For one thing, a mere

reference to the existence of an administrative plan in the

supporting affidavit is insufficient. Barlow’s, 436 U.S. at

323 n. 20. Nor is a mere statement that the proposed in-

spection is designed to assure compliance with a regulatory

statute sufficient. Barlow’s, 436 U.S. at 323 n. 20. The af-

fidavit should: (1) demonstrate the criteria for selection of

inspection sites contained within the plan; and (2) show

how the site sought to be inspected fits within those cri-

teria. Barlow’s, 436 U.S. at 323 n. 20.

In the lower courts, an attempt has been made to give

meaning to this requirement. In Matter of Urick Property,

472 F.Supp. 1193 (W.D. Pa. 1979), an administrative in-

spection warrant was sought based upon a supporting af-

fidavit that described the development of two national in-

spection programs, stated that 300 foundries throughout

the country had been selected for inspection, referred to a

history of violations at the foundry in issue, and stated

that the foundry in issue had not been inspected during the

preceding year. Nonetheless, the court quashed the war-

rant because the government failed to articulate how that

foundry differed from any number of other foundries.

The First Circuit Court of Appeals applied a similarly ex-

acting standard in Donovan v. Wollaston Alloys, Inc., 695

F.2d 1 (ist Cir. 1982). There, the court upheld a warrant

based on an affidavit that contained a five-page descrip-

tion of the administrative plan and an explanation that in-

dustries had been categorized by priority and that specific

sites within the various categories were selected in alpha-

betical order.

In cases such as Urick Property and Wollaston Alloys,

the rights of the industries involved were protected. Before

warrants were issued, the government was required to pro-

11

vide sufficient detail about its inspection plans to warrant

the conclusion that such plans really existed and that the

sites sought to be inspected naturally fit within the plans’

criteria. When the government meets such minimal require-

ments, plant owners are reassured that the inspections

sought are not the product of arbitrary agency action. In

the absence of the government’s meeting such re-

quirements, plant owners are in the same position they

would be in if there were no warrant process at all.

Such was the case here. The affidavits submitted by

EPA officials stated only that the proposed inspection was

part of a “CSI-T” (Compliance Sampling Inspections for

Toxicants) program; that the purposes of the program

were to determine compliance with NPDES permits and to

determine whether additional pollutants needed to be con-

sidered in future permits; and that the sampling of internal

waste streams was necessary to achieve those purposes. As

to the selection of Mobil’s Joliet refinery for an inspection,

the affidavits merely stated that the facility “was selected

for a CSI-T as part of an ongoing administrative program

to monitor facilities that have some potential for the dis-

charge of toxic pollutants,” and “pursuant to the continu-

ing U.S. EPA program to monitor compliance with ex-

isting NPDES permit requirements.” These alleged “pro- .

grams” were described in no further detail. No informa-

tion was provided about the scope of the programs, the

planned frequency of inspections under the programs, or

how particular sites were to be selected. No explanation

was provided as to where Mobil’s refinery might fit into

EPA’s list of priority plants, if any, see Wollaston Alloys,

supra, or as to how Mobil’s refinery differed from the

thousands of other plants that operate under valid NPDES

permits and that have “some potential for the discharge of

toxic pollutants,” see Matter of Urick Property, supra.

12

On the basis of such scant information, it would be im-

possible for a magistrate, the petitioner, or this Court, to

be assured that petitioner’s site was chosen for sampling

on the basis of pre-established neutral criteria. The lower

courts’ refusal to quash the warrant permitted the magis-

trate to “rubber stamp” EPA’s application, rather than

carry out the task of substituting his independent judg-

ment for that of agency officials.'' The net effect was to

make a mockery of the Fourth Amendment’s warrant re-

quirement. The issuance of a warrant on the basis of so lit-

tle information as to make the warrant requirement mean-

ingless is the very sort of arbitrary action against which the

Fourth Amendment was designed to protect and which

this Court has on so many prior occasions condemned.

Yet arbitrary action is not the only danger attached to

warrants based on such vague information. Amicus re-

iterates that petitioner’s refinery was a modern facility

with an excellent environmental compliance record. At no

place in the record is there even a suggestion that peti-

tioner was suspected of violating the law. However, the

ramifications of “rubber stamp” warrants at issue here

could extend to other situations as well. For example, if

the owners of a particular plant are suspected of criminal

violations, the government could employ vaguely describ-

ed “administrative plans” as a subterfuge for conducting

what is truly a prosecutorial search.'? Although most

federal regulatory statutes are enforced through civil pro-

ceedings, nearly all contain criminal penalties for willful

violations.'? Thus, the potential for abusing the warrant

''See United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).

'2 “I)}f the authorities are seeking evidence to be used in a criminal

prosecution, the usual standard [of probable cause] will apply.’ ”

Michigan v. Tyler, 436 U.S. 499, 508 (1978), quoting with approval

the same case below, 399 Mich. 564, 584 (1977).

Including the CWA. 33 U.S.C. § 1319 (1976 & Supp. V. 1981).

13

process by subterfuge is widespread. Requiring the ar-

ticulation of an administrative plan, including selection

criteria, and a demonstration of how a particular site

meets those criteria would significantly limit the potential

for such abuse.

In sum, this Court should further define the re-

quirements of administrative probable cause in order to

assure that administrative inspection warrants constitute

neither judicial endorsement of arbitrary governmental ac-

tion nor convenient subterfuges for criminal investigation.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Stark Ritchie

(Counsel of Record)

Stephen E. Williams

Thomas S. Llewellyn

James K. Jackson

AMERICAN PETROLEUM INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8000

Counsel for Amicus Curiae

April 6, 1984